One big prison yard?

 Last year, the Legislature passed a bill creating a sentencing commission to jump start reforms in the criminal justice system.

There was a consensus that West Virginia’s penalties were out of sync and, often, more severe than those of neighboring states, at great expense to the public and without making anyone any safer.

As then chairman of the House Judiciary Committee John Shott, R-Mercer, said: “Among the many challenges facing our state, the reform of our criminal justice system is one of the least publicized. To keep this in context, we have a system in which we are 20 to 25% over capacity, and our prisons, our regional jails are overflowing.”

And that was before COVID-19 hit, which makes the issue of reform even more urgent.

The pandemic slowed the work of the commission, but things are starting to move.

Unfortunately, even before the commission gets down to the heavy lifting, proposed legislation in the House of Delegates would drastically rewrite the state’s criminal code before the process has a chance to work.

The measure in question, House Bill 2017, is truly gargantuan. The introduced version was no less than 391 pages. At present, it’s up to 411 pages. It was sprung on the House far too late in the session for members to digest the implications of what they’re going to vote on.

While the bill is no doubt well intentioned, it was crafted without consulting with prosecutors, public defenders, judges, others who work in the system or advocates — much less those directly affected.

If enacted, the bill would increase prison sentences for many offenses (with some exceptions), while also delaying parole eligibility. In particular, it changes many sentences from an indeterminate system, which provides some flexibility, to a determinate system that often would increase the minimum and maximum sentences.

This also would have the effect of reducing the incentives for people in prisons to participate in rehabilitation, education and/or recovery programs, since they would have to serve longer before being eligible for parole.

One provision of the bill that seems especially harsh would increase fines for many offenses and even require some inmates to pay the cost of their incarceration. Since people with low incomes are more likely to get caught in the system to start with, this would increase debt of those families and contribute to the criminalization of poverty.

According to the American Action Forum, which describes itself as center-right, “Adults in poverty are three times more likely to be arrested than those who aren’t, and people earning less than 150% of the federal poverty level are 15 times more likely to be charged with a felony — which, by definition, carries a longer sentence — than people earning above that threshold.”

The Prison Policy Initiative reports: “Poverty is not only a predictor of involvement with the justice system: Too often, it is also the outcome. Criminal punishment subjects people to countless fines, fees and other costs (often enriching private companies in the process). A criminal record, meanwhile, does lasting collateral damage.”

Rather than gallop to a premature decision, a wiser step would be to refer the ideas contained in HB 2017 to the sentencing commission so that its provisions, along with the ideas of others familiar with all aspects of the system, can be evaluated in consultation with all stakeholders.

In the meantime, lawmakers might do better to focus on reforms to reduce mass incarceration and its cost to individuals, communities, families and taxpayers.

(This ran as an op-ed in the Charleston Gazette-Mail.)

The bad and the ugly (good being in short supply): a WV legislative update

As you may have noticed, the WV legislature is in session and the intent seems to be to burn everything down and lock everybody up. My comrade Lida Shepherd recently prepared an exhaustive update on criminal law legislation that is or may soon be in play. It's probably more than you want to know--we wish we didn't know it too! Oh, yeah and probably more bad stuff has been introduced since...and this is only the bad criminal law stuff. Some of the other stuff is as bad or worse. Enjoy!

Criminal Justice Reform Legislative Update  - current as of Friday, March 5th  

Here are the bills we have our eye on… 

Positive bills we support

HB2094.            Ensures restorative justice can be used in any juvenile case when all parties agree    PASSED HOUSE! 

 Needed action: Please contact Senate Judiciary members and ask they support HB 2094 to help advance restorative justice practices in West Virginia.  HB 2094 recognizes the positive impact restorative justice can have for our kids and our communities. And while a lot of work remains to increase capacity to implement these programs, this bill ensures that a restorative justice process will be an option in any juvenile case if all parties agree to participate. 

Read and share “You cannot be tougher on crime than preventing it in the first place- Delegate Graves hopes restorative justice can help offenders” – Gazette-Mail, Feb. 27

 HB2552.            Removes the one-time limit on the expungement of certain criminal convictions

HB2553.            Reinstates the juvenile justice reform oversight committee

HB2305.            Creates a tax credit for hiring people with certain qualifying criminal convictions

HB 2864             Restores voting rights for people on probation or parole

Needed action: More sponsors! 

Other positive bills yet to be introduced but be on the lookout for:

·       “Ban the box” on state job applications

·       Reentry bill to allow for 180 day early release to community supervision and enhanced funding for transitional housing and reentry services

·       Ending felony murder rule for juveniles 

Bills that are THUMBS DOWN

The following we oppose because they either enhance criminal penalties or shift cost burdens of incarceration,  instead of reducing our reliance on incarceration and extended punishment.   

HB2257.            Subjects people convicted of most drug felony crimes with up to 10 years of extended supervision – PASSED HOUSE

Needed action: Contact Senate Judiciary committee members and ask them to not consider HB 2257 

Talking points: I am asking you to please NOT take up HB 2257 in Senate Judiciary, a bill that is NOT smart on crime.  This bill would add up to 10 years of extended supervision for people with drug offenses after they complete underlying sentence, including any period of parole. Violation of the supervision would result in additional incarceration of up to 10 years. HB 2257 is NO JOBS AND HOPE: instead of creating pathways to employment, stable housing, and drug treatment, this bill would subject people to more supervision, strap them with additional fees, and make it more likely that they return to prison. All of this will drive up recidivism, put more strain on families, and cost West Virginia taxpayers more money.  

Read and share “Major Step Backwards for Criminal Justice Reform” – WV Gazette-Mail, March 2nd 

HB2017.            Rewrites the Criminal Code

Read and share WV Criminal Law Reform Coalition blog HB 2017, a massive sentencing rewrite, enhances penalty for over 200 felonies and why we strongly oppose this bill as introduced

HB 2747             Transfers parole board to the Office of Administrative hearings – To Veteran Affairs committee

HB2184.            Increases the penalties for exposure of governmental representatives to fentanyl or any other harmful drug – PASSED HOUSE

HB2253.            Creates new penalty for to forgery and other crimes concerning lottery tickets – PASSED HOUSE

HB2563.            Requires certain municipalities to pay for the incarceration of inmates - To Political Subdivisions then Finance

HB2379.            Makes criminal invasion of privacy a felony  - To the Judiciary

HB2310.            Relates to death penalty for first degree murder  - To the Judiciary then Finance

HB2377.            Apply death penalty for first degree murder of law enforcement officer or first responder - To the Judiciary

HB2273.            Dividing pretrial detention jail costs between arresting authorities - To the Judiciary then Finance

Please also check out WV Criminal Justice Reform Facebook page for news and updates. 

Thanks for your interest!

One liner of the day

Whenever I hear politicians talk about the need to make tough choices, what I hear is this: "It's time to really stick it to poor people." Which come to think of it isn't a tough choice at all but rather a cowardly one. Paul Krugman struck at that theme today in his op-ed about the need for demand-side economics. Here's his version:

"Economics is supposed to be about making hard choices (at other people's expense, naturally)."

SAD NEWS. Here's an op-ed by a friend of mine on sad days for public libraries.

KINDER, GENTLER? On the bright side, E.J. Dionne argues that Americans seem to be getting less punitive, partially because of dropping crime rates.

HEALTH CARE. Here's a reminder of why we needed reform to start with.

MORE FUN AND GAMES with West Virginia's drug lobbyist in chief attorney general here.

GOAT ROPE ADVISORY LEVEL: ELEVATED

LIKE CAPTAIN AHAB BUT NOT AS COOL

Image courtesy of wikipedia.

Every so often, you hear about the dream of writing the Great American Novel. Sorry, but it is the opinion of El Cabrero that that one has already been scratched off the list for over 150 years. To quote from the great song-poem Tweeter and the Monkey Man,

There ain't no more opportunity here, everything's been done.

I am, of course, referring to Moby-Dick. I'm re-reading that jewel for the umpteenth time and it just keeps getting better and better. I'm not about to go on a long Moby-Dick jag just yet (although that probably will happen before too long), but there is a connection between that classic and the topic at hand at Goat Rope the last few weeks, i.e. violence and how we might be able to reduce it.

If you recall anything about the story, it may well be that Captain Ahab of the Pequod lost a leg to the Great White Whale in an earlier voyage and, to put it mildly, kinda took it personally.

Dr. James Gilligan, author of Violence: Reflections on a National Epidemic, refers to the character of Ahab several times in his 1996 work in discussing the tragic nature of violence and the typical American response to it:

Probably no American novel speaks more powerfully to the tragic flaw of violence in the American character than does Herman Melville's masterpiece, Moby-Dick. In the novel, Captain Ahab, who embodies the purest, most extreme example of one strain in our national character, becomes convinced that Moby-Dick, the great while whale, is the embodiment of evil. Ahab pursues Moby-Dick in the mad conviction that if only he can find him and kill him, he will have attained justice and destroyed evil. The voyage of Ahab and his men, aboard the Pequod, is the story of that tragic quest when ends in the destruction of Ahab and his entire crew, except for Ishmael; it is he alone who returns to bear witness.

Gilligan finds that of Ahab in the American drive to punishment and retributive justice, which hasn't worked all that well in practice:

When I think of the mentality that is willing to sacrifice even rational self-interest, not to mention concern for others, for the sake of some abstractly conceived notion of justice and the punishment of evil, I can only think of Captain Ahab. Like any tragic hero, Ahab was convinced that he knew the difference between good and evil, he knew that Moby-Dick was evil, and he knew that if only he could kill Moby-Dick he would destroy evil and restore justice to the world. In exactly the same way, we know that "criminals" represent and symbolize evil, that if we can only kill or immobilize them all, we will have destroyed evil and attained justice. What else are our endless, futile, and self-defeating crusades, called the "War on Crime" and the "War on Drugs," [the Gentle Reader may think of other wars as well] but our version of the voyage of the Pequod? What else has "Crime" (or "Drugs") come to symbolize, in the American mind, that wasn't already contained in Ahab's image of that symbol of absolute evil, the great white whale, Moby-Dick? And where else are we sailing our ship of state except toward exactly the same kind of tragic and self-destructive shipwreck to which Ahab sailed the Pequod?

Here's one more for the road:

What is the nature of our tragic flaw as a nation, the flaw that has resulted in our uniquely high levels of criminal violence? I think it is the same as Captain Ahab's, which is why he is the my model of our flawed American character. I would describe the flaw as a Puritanical kind of moralism and punitiveness, which is generated by the illusion that "we" have a monopoly on the knowledge of good adn evil (conveniently forgetting what happened to the last couple who ate the fruit of the tree of that name), and that we know that "we" are good and "they" are evil. And lest it be thought that since Ahab was a man he represents only the male minority in the population, it is worth remembering that unless the female majority voted as it did, the Captain Ahabs of this country would never attain power.

I would only disagree to the extent of saying that Melville's Ahab was way cooler than some of the people we've elected.

IT'S A GUY THING...the recession, that is, as Business Week reports.

BACK TO THE MONKEY MAN. Here's an interesting NY Times item on some differences between apes and humans and pros and cons of group behavior.

CLEAN COAL? Don't hold your breath.

DEFINITELY NOT AS COOL AS AHAB. Here's The Nation of former Bush press secretary Scott McClellan on the propaganda leading up to the war in Iraq.

GOAT ROPE ADVISORY LEVEL: ELEVATED