2026 may be the year that policymakers focus not on who pays the jail bills, but on how to use the jails less.
This year, counties can expect to pay $8.4 million more on their jail bills – even if they don’t use the jail more than they did last year.
That’s because after years of subsidies, the state has begun to charge counties what it costs to jail people awaiting trial: $67.27 per person per day. Counties who jail a disproportionately high number of people will pay a penalty rate of $80.72 per person per day.
And it won’t get better for counties when daily jail costs rise again in six months to $75.44 per person per day. For the 29 counties that paid the penalty rate last year, they could pay as much as $90.53 per person per day.
For years, policymaking has focused on who pays the jail bills.
After West Virginia established its 10 regional jails to replace county-run jails, the state charged counties a “per diem” rate for each day they jailed a person who is awaiting trial or serving a misdemeanor sentence. For several years, state officials artificially capped this rate at $48.25, even as real-world jail costs continued to grow for the state. But in 2023, lawmakers passed House Bill 3552, which raised the per diem by more than six dollars, with the requirement that the rate is recalculated annually based on jail costs.
By Fiscal Year 2025, county jail bills reached an all-time high of $49.1 million.
If each county uses the same number of jail days as they did in FY 2025, they will see their bills leap to a total of $57.5 million in FY 2026 and $64.5 million in FY 2027.
The challenge for counties is that state subsidies for jail bills are unlikely to return.
For the first time since the Great Recession, the state has seen two straight years of declining revenues. This week, Governor Morrisey proposed new tax cuts that would further reduce revenue.
At the same time, state agency budgets have remained flat or fallen behind inflation, while costs continue to increase. The West Virginia Legislature is facing public calls to fix the Public Employees Insurance Agency, fortify infrastructure and flood resiliency, and raise state employee pay.
New state revenues are not coming to solve the state’s problems.
In December 2025, eight out of 10 regional jails were overcrowded. Of the 2,906 people incarcerated on the counties’ dime, 90.7 percent are legally innocent people awaiting trial.
Pretrial incarceration is not inevitable. In fact, West Virginia’s jail population should be shrinking. The state has seen population decline since the 1950s. There has also been an overall decrease in violent and property crimes over the last two decades.
The WVCBP has urged criminal system stakeholders to take advantage of existing laws and rules to limit unnecessary incarceration. These include providing prompt bond and capias hearings, holding mandatory bond review hearings in magistrate courts, and conducting regular case reviews of people who are detained pretrial.
But these procedures come days – or weeks – after a person has been jailed. None address the initial decision to send a person to jail.
Most people are surprised to learn that a person could be sent to jail without a lawyer present. But nearly every person arrested in West Virginia is brought before a magistrate alone while the magistrate decides whether they will go home or lose their liberty and await their next hearing from jail.
West Virginia law requires magistrates to set the least restrictive bond to ensure a person will appear in court and not commit a new crime. They must consider several factors, including a person’s criminal history, their ties to the community, the strength of the evidence against the person, and whether they can afford a money bond.
The average person – perhaps even the average lawyer – is unfamiliar with these legal factors and has no idea what to offer in their own defense. Without a lawyer marshaling these facts and arguments, magistrates don’t receive the relevant information needed to make an informed bond decision. Thus, people without a lawyer present are more likely to face financial bonds they cannot afford and to lose their freedom compared to people who do have legal representation.
Pretrial incarceration destabilizes people and their communities. People are more likely to lose their jobs, be evicted, lose custody of their children, miss medical appointments, and more.
Last year, people spent a combined 2,612 years in West Virginia jails awaiting trial or serving misdemeanor sentences – all time billed to the counties.
During that period, eighteen people died in regional jails. Eleven of them died awaiting trial. Five people, ranging in age from 33 to 43, died within a few days of entering the jail. Even so-called “short” periods of incarceration can be deadly.
In West Virginia, it can be up to five to 10 business days before a person has their first hearing with a lawyer, after which many people are released from jail.
Why not save the county those jail days and start with a lawyer on day one?
According to the Rules of Criminal Procedure, that’s already supposed to happen.[1] And yet, no West Virginia county provides a lawyer during this critical hearing.
A lawyer on day one is possible. Federal criminal courts have provided day one representation for decades. When children are arrested in West Virginia, a lawyer must be present for a detention hearing. States around the country have implemented day one representation or launched pilot programs.
When a lawyer is present on day one, the likelihood of pretrial release increases, eliminating costly, unnecessary days behind bars.
But there are other benefits. Having a lawyer on day one has been shown to reduce the likelihood of bond violations and future arrests. People who had a lawyer at their first hearing are more likely to make future court appearances. Judicial officers who oversaw day one pilot programs appreciated how the presence of lawyers increased efficiency and led to more informed decisions.
While implementation should be flexible and tailored to each community, it is time for West Virginia counties to provide a lawyer when a magistrate decides whether or not to send someone to jail.
This policy is a rare instance when the interests of county governments, state budget hawks, and working-class families align. All that’s left is the political will.
[1] West Virginia Rule of Criminal Procedure, Rule 44: “Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him or her at every stage of the proceedings from initial appearance before the magistrate or the court through appeal, unless the defendant waives such appointment.”
