A few months ago, lawmakers on West Virginia’s jail oversight committee heard a familiar complaint: the jail bills are too high. One county commissioner after another appeared before the committee with the same request: please don’t make us bear the full cost of our jail bill.
The jail bill saga started decades ago. In 1985, West Virginia established a regional jail system to replace county-run jails, once described as “anachronisms and totally unfit for human habitation.” Between 1989 and 2005, West Virginia opened its 10 regional jails. The state paid for day-to-day operations by charging counties a “per diem” rate for each day they jailed a person who had not been convicted of a crime or was serving a misdemeanor sentence.
County jail bills – and specifically, counties’ desire to avoid paying them – have been the subject of state supreme court cases, county commission meetings, and countless lawmaker discussions. Thus, for the last decade, state officials artificially capped the per diem at $48.25, even as real-world costs continued to grow. Several years ago, lawmakers changed the law so that the state would assume jail costs when a person is convicted of a crime – as opposed to the later date of sentencing – saving counties weeks or months of jail bills in those cases.
Despite these subsidies, by Fiscal Year 2023, county jail bills totaled $44.7 million, with eight counties owing a combined debt of $8.9 million.
In 2023, lawmakers could not hold off a per diem increase any longer. They passed House Bill 3552, which raised the per diem by more than six dollars. But under pressure from counties, lawmakers included a new jail bill formula meant to simultaneously cut the actual amount counties paid.
Under the new formula, each county was assigned a pro rata (or proportional) share of jail days based on its population. For the first 80 percent of jail days used in a year, the county pays only 80 percent of the per diem rate. After a county reached 80 percent of its pro rata share of jail days, the county pays the full per diem. If a county exceeds its pro rata share, then the county pays 120 percent of the per diem for each extra jail day.
By August 2024, when lawmakers convened to hear the impact of H.B. 3552, it seemed to be a lose-lose policy for county and state officials.
County commissioners reported that jail bails continued to strain county budgets. An Upshur County commissioner said about 1 out of every 10 county dollars went to pay jail bills. A Nicholas County commissioner noted that if his county had to make cuts to accommodate rising jail bills, they would likely cut from what communities cherish most: senior centers, little leagues, community centers, food bank support, and wages for county employees.
A state budget official testified that before H.B. 3552 went into effect, the regional jail system had an operating surplus of $1.9 million. One year later, the jail system was facing an $18.6 million deficit.
Over the last few years, the public has seen what happens when government ignores the actual costs of operating a jail system.
People in state regional jails endured black mold and broken toilets. They went days without toilet paper or a shower. They showered in cold water, dodged exposed electrical wires, and slept on concrete floors. During the decade the per diem stayed the same, state jails were named the deadliest in the country. We will never know the harm thousands of people suffered because they were warehoused in facilities “unfit for human habitation.”
These jail bill subsidies obscure something else.
When the state gives a discount on incarceration, counties do not have to confront the real problem: they are jailing too many people.
Although H.B. 3552 was supposed to incentivize counties to use fewer jail days, it has done the opposite. Counties used up more than 901,000 jail days in Fiscal Year 2024, an increase of more than 6,500 from the year prior. Put another way, last year West Virginia counties held citizens for the equivalent of 2,470 years for misdemeanor sentences and pre-trial detention.
By choosing to name jail bills as the problem, our elected officials treat incarceration as inevitable.
West Virginia’s jail population should be shrinking. The state has been in population decline since the 1950s. There has been an overall decrease in violent and property crimes over the last two decades.
The state’s 10 regional jails were originally designed to house up to 2,883 people. But at the end of October 2024, there were 4,753 people in jail.
Three-fifths of people in jail are either legally innocent and awaiting trial or serving a misdemeanor sentence. Each day these 2,904 people spend in jail is a day paid for by the counties.
For years, policymaking has focused on how to split up the costs of incarceration, instead of how to reduce incarceration.
What can elected officials do instead?
It may be a surprise that there are already laws and rules in place to limit unnecessary incarceration. But the implementation of these varies from county to county and sometimes from judge to judge.
For county officials concerned about jail bills, there are a few court practices they can monitor to ensure that existing rules are being implemented.
1. Bond Review Hearings for Misdemeanors. When a person remains incarcerated on a misdemeanor offense because of their inability to pay a bond, West Virginia Code § 62-1C-1a(c) states the court “shall hold a hearing within 5 days of setting the initial bail” to review the bail. Most people have their bonds determined at an initial appearance without an attorney to represent them. This bond review hearing is different than the initial appearance because it includes the participation of the prosecutor and defense counsel, resulting in a more meaningful bond hearing.
County Checklist:
2. Timely Hearings for Bond Motions and Violations. Rule 46(h) of the West Virginia Rules of Criminal Procedure states bail hearings “shall be held within a reasonable time not later than five days after the filing of the motion.”
County Checklist:
3. Regular Review of People Jailed Prior to Trial. The rules of criminal procedure provide process for “eliminating all unnecessary detention.” Rule 46(g) states:
Supervision of detention pending trial. – The court shall exercise supervision over the detention of defendants and witnesses within the county pending trial for the purpose of eliminating all unnecessary detention. The attorney for the state shall make a biweekly report to the court listing each defendant and witness who has been held in custody pending indictment, arraignment or trial for a period in excess of 10 days… As to each defendant so listed, the attorney for the state shall make a statement of the reasons why the defendant is still held in custody.
County Checklist:
4. Address Capias Arrests Quickly. Capias arrests account for one in eight jail admissions. Under a 2023 law, when a person is arrested on a capias for failure to appear, the magistrate or judge who issued the capias must hold a hearing within five days of the arrest. The law also created standards for issuing a capias due to failure to appear.
County Checklist:
1. Do Less. Each year they introduce hundreds of bills that would create new criminal offenses and sentencing penalties. When a person can be charged multiple ways for the same conduct, they typically are. More charges on a criminal complaint tend to drive higher bonds, which results in more people jailed before trial.
2. Require Bond Review Hearings for All Charges. In 2020, lawmakers passed legislation aimed at reducing the number of people in jail. The law directed a bond review hearing for every person who remained incarcerated regardless of whether they were charged with a misdemeanor or felony. But under pressure from magistrates, the legislature came back the next year and clawed back the bond review hearings for people charged with felonies.
The problem: 80 percent of people jailed pretrial on any day are charged with felony offenses. If felony charges are excluded from bond review hearings, elected officials can expect to get the same results they have been getting.
3. Get Rid of H.B. 3552’s Pro Rata Scheme. This formula was flawed from the beginning. When the state calculated a total number of jail days to assign to counties, the state gave counties more days than the counties had previously used: 932,736 pro rata days compared to 895,000 days used in the year before.
The best policy is also the simplest. The state should charge the true cost of incarceration.
Going to jail is a fundamentally dehumanizing experience. You lose your liberty. You are not allowed to hold your child or a loved one. You have no control of when you eat, when you open a door, or when the lights turn off. You use the bathroom in front of strangers. Your belongings and your body can be searched at any time.
This dehumanization creeps into the community. People in jail are more likely to lose their rights to be a parent. After their release, they are at greater risk of job loss and reduced future earnings, and experiencing homelessness.
Our elected officials may be insulated from these harms, but the West Virginians who spent 901,891 days in jail last year are not.
At the very least, elected officials should face an honest accounting for their policy choices.
