Blog Posts > Counsel at First Appearance Can Protect Liberty and Reduce Jail Costs
August 26, 2022

Counsel at First Appearance Can Protect Liberty and Reduce Jail Costs

Despite West Virginia’s crime rate and total population declining in recent decades, the state jail population has increased over that period, and at the end of Fiscal Year 2022, state jails were nearly 1,000 people above capacity. One contributing factor driving this counterintuitive trend is West Virginia’s overreliance on pretrial detention –nearly half of people in West Virginia jails are legally innocent and awaiting trial, incarcerated for a crime for which they have not been convicted.

Much of the pretrial detention and jail overcrowding crisis can be traced to what is known as an individual’s “first appearance hearing.” At this hearing, the magistrate provides critical case information and makes the bond decision, which determines whether the accused individual can remain free in their community or must go to jail while they await their next hearing. Notably, West Virginia law requires magistrates to set the least restrictive bond to ensure a person will appear in court and not pose a threat to public safety, but this policy has not been robustly implemented throughout the state and many people continue to be detained pretrial simply because they cannot afford to pay their bond. Further, although state court rules create a right to a lawyer at this first appearance, virtually no one is provided legal representation at this hearing. Those without a lawyer present at the first appearance hearing are more likely to face financial bonds they cannot afford than people who do have representation, which results in higher rates of, often unnecessary, pretrial incarceration among lower-income West Virginians.

Our new policy brief explains how implementation of a policy known as “Counsel at First Appearance” (CAFA) can effectively reduce rates of unnecessary pretrial incarceration, thus protecting the liberty of West Virginians and mitigating jail overcrowding and the human and financial costs of incarceration.

CAFA ensures that an arrested individual is provided legal representation during their first appearance hearing. At this hearing, their lawyer can speak the language of the court and verify and present information critical to the magistrate’s bond decision.

Research shows that CAFA makes hearings fairer and more efficient and increases compliance with the rules. What’s more, by ensuring that those arrested have counsel at first appearance, fewer West Virginians would be subject to onerous or higher-than-necessary bonds. This would significantly reduce jail incarceration, thereby relieving facility overcrowding, preventing individual trauma and loss, keeping families together, and saving money for the cash-strapped county governments responsible for paying regional jail bills.

Key Findings:

  • Between 1999 and 2019, West Virginia’s average daily jail population grew by 227 percent, despite a decrease in crime and declining population.
  • Half of those incarcerated in our state’s jails are legally innocent and awaiting trial.
  • Despite the state holding per diem costs flat, in Fiscal Year 2022, West Virginia counties incurred $45.8 million in regional jail bills — a $2 million increase over 2021.
  • People without a lawyer at the first appearance hearing are more likely to face financial bonds they cannot afford and remain in jail than those with legal representation at first appearance.
  • At least 66 percent of people who died in West Virginia jails between 2009 and 2019 were legally innocent and awaiting trial.
  • As little as four days in jail prior to trial can increase the likelihood of conviction by 13 percent.
  • When Philadelphia provided accused individuals bail advocates, a study of 100,000 cases revealed that the presence of an advocate reduced bond violations by 64 percent and future arrests by 26 percent.
  • An analysis of a single month of felony charges in Kanawha County showed that when a lawyer entered the case days after the first appearance hearing, 43 percent of people who had received a financial bond had that bond reduced or their case dismissed — but only after the county incurred $13,847 in jail bills. 

West Virginia is at an impasse. Regional jail overcrowding is a problem that will not go away. This overcrowding needlessly strains government budgets and harms our state’s communities and families. Jurisdictions around the country offer a path forward — a policy that reduces jail overcrowding and saves local funds, without risking public safety or burdening courtrooms. A CAFA program in West Virginia would help our courts to live up to their own standards of justice: no one should be put behind bars without legal representation.

You can read Sara’s full brief here.

Amendment 2 and Tax Cut Efforts Would Exacerbate State Staffing Crises

Amid multiple state agency staffing shortage crises driven by low pay, state officials are proposing to cut state revenues even further through income tax cuts and proposed property tax cuts if Amendment 2, which will be on the ballot this fall, passes.

Just this month, West Virginia Education Association (WVEA) officials warned of record teacher vacancies in the state’s public schools, and Governor Justice declared a state of emergency in the state’s correctional facilities due to shortages of correctional officers. These staffing crises come on the heels of significant Child Protective Services (CPS) worker vacancies at the state’s health agency.

Average pay for all of these positions falls far below the national average—the driving factor across each of these agency staffing shortages. By failing to invest in good pay and benefits for our state’s workers, state policymakers are ensuring that these challenges will continue.

With West Virginia K-12 public schools starting next week, teacher vacancies will have a real and immediate impact on students and families. While the state’s Department of Education reported nearly 1,200 teacher vacancies in 2021, that number is expected to climb to 1,500 according to the WVEA. WVEA noted that concerns among teachers include workload and pay. Even despite recent pay raise legislation, West Virginia’s teacher salaries fall far below the national average, ranking 40th in starting teacher pay and 49th in average teacher pay.

In March, Department of Corrections and Rehabilitation officials reported nearly 900 vacancies statewide, a 29 percent vacancy rate. The average salary for a correctional officer in West Virginia is over $10,000 below the national average, while starting salaries fall below all neighboring states.

Despite awareness of these crises, lawmakers largely failed to increase pay and benefits for these positions during the 2022 legislative session. While a five percent pay raise for state employees and teachers was enacted, the impacts of inflation this year more than cancel out that raise.

The proposed property tax cuts that would follow if Amendment 2, the Property Tax Modernization Amendment, were to pass this fall would exacerbate these staffing crises among state agencies by stripping the state of critical revenue. Tax cuts like those proposed in Amendment 2 would fail to achieve proponents’ stated goal to create jobs precisely because they result in cuts to essential public services. Instead of more ineffective tax cuts, we should invest in good pay and benefits for state employees.

Read Kelly’s full blog post.

County Commissions Across West Virginia Expressing Opposition to Amendment 2

As noted in the entry above, Amendment 2, or the Property Tax Modernization Amendment, will be on the ballot this November for West Virginia voters to consider. If passed, it would amend the constitution to give the state legislature the authority to exempt business machinery and equipment, business inventory, and personal vehicles from property taxation. As such, passage of the amendment would give the legislature control over $515 million of property tax revenue, or 27 percent of total property tax revenue in the state, resulting in the fulfillment of a long-term goal of state legislators to take control of a significant portion of property tax revenue in order to pursue a property tax cut that largely benefits out-of-state businesses.

The proposed exemptions under Amendment 2 would result in local governments losing an essential revenue stream. The $515 million in property tax revenue from personal vehicles and business machinery and equipment, business inventory, and other business personal property accounts for up to 37 percent of total property tax revenue in some counties. The loss of this critical revenue will adversely impact the ability of municipalities, county governments, and school districts to provide needed services that benefit all West Virginians, and will likely lead to cuts to services or increased taxes on other parties, like homeowners.

As we approach this fall’s election, county commissions are increasingly coming out in public opposition to Amendment 2. A recent article details the Raleigh County Commission’s decision to oppose the amendment. Excerpt below:

Falling in line with other commissions across the state, members of the Raleigh County Commission said they will not support a constitutional amendment which will impact the county’s revenue stream until more information is provided by the Legislature.

For more than 20 minutes during their regular meeting Tuesday morning, Raleigh County commissioners questioned Sen. Rollan Roberts, R-Raleigh, about the particulars of the amendment, known as Amendment 2, which is on the ballot for the November general election.

If passed, Amendment 2 would allow current and future lawmakers to reduce the business and inventory tax and to eliminate the property tax on vehicles, which is a major funding source for counties and local schools.

Lawmakers have promised to make up the loss to the budgets in all 55 counties by 110 percent but they have not released a specific plan on how they intend to do this.

Commissioner Dave Tolliver told Roberts Tuesday that there were still too many unknowns with the amendment, specifically related to how the state will fund counties at their current levels.

Tolliver said he was on a call yesterday with commissioners from around the state who have similar concerns.

“Fifteen counties were against Amendment 2 until we get more information,” he said. “The unknowns is what scares everybody.”

Read the full article.

New Child Tax Credit Proposal Revealed, Includes Strengths and Weaknesses

Beginning in July 2021, most households with children had received monthly enhanced Child Tax Credit (CTC) payments of $250- 300 per child. However, the enhanced CTC included in the American Rescue Plan Act (ARPA) was temporary and expired at the end of 2021.

The impact on children and families since the expiration of the enhanced CTC has been severe. Between Dec. 2021 and Jan. 2022, there was a staggering 41 percent increase in child poverty nationwide due to the loss of the monthly payments. And as inflation continues to exacerbate family financial hardship, the need to make a robust CTC permanent is as urgent as ever.

Recently, a new proposal to expand the CTC was announced by Senator Mitt Romney. While we are excited to see bipartisan interest in enhancing the credit and while the proposal does improve some elements of the current law, it also has serious shortcomings – primarily, it does not make the full credit available to the lowest-income families (a notable divergence from the now-expired enhanced CTC that was included in the ARPA). Further, it proposes problematic offsets that would prove detrimental to low-income families.

A blog post from our colleagues at the Center on Budget and Policy Priorities provides further insight into the proposal’s pros and cons. You can read it here.

Share Your Medicaid Experience with Us!

The WVCBP’s Elevating the Medicaid Enrollment Experience (EMEE) Voices Project seeks to collect stories from West Virginians who have struggled to access Medicaid across the state. Being conducted in partnership with West Virginians for Affordable Health Care, EMEE Voices will gather insight to inform which Medicaid barriers are most pertinent to West Virginians, specifically people of color.

Do you have a Medicaid experience to share? We’d appreciate your insight. Just fill out the contact form on this webpage and we’ll reach out to you soon. We look forward to learning from you! 

You can watch WVCBP’s health policy analyst Rhonda Rogombé and West Virginians for Affordable Health Care’s Mariah Plante further break down the project and its goals in this FB Live.

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