The West Virginia Legislature is one-fourth of the way through the 2021 session, and thus far the focus has largely been on areas other than criminal justice. Legislation concerning criminal law that has been passed out of committees includes a juvenile restorative justice program and several bills that enhance sentences for certain crimes. Last Friday, the House Judiciary Committee advanced a bill that would produce a range of consequences for the state, formerly incarcerated people, and public safety.
After three days of discussion, House Judiciary passed House Bill 2257 out of committee. If adopted, the bill will create a new form of extended supervision for people convicted of certain drug crimes for up to an extra 10 years, beginning after their normal parole or probation supervision ends.
Reentry is already difficult for many of the thousands of people who leave West Virginia’s prisons and jails every year. The stigma of a criminal conviction can make it hard to obtain a living wage job, safe and affordable housing, and other necessities that non-justice-involved people take for granted. People with mental health needs or substance use disorder, which affects an estimated 65% of people incarcerated in prison, often struggle to access needed treatment when they’re released, whether it’s due to lack of affordability or lack of availability.
Community supervision (parole and probation) does serve an important purpose in the criminal justice system when evidence-based approaches toward high-risk offenders are used. However, HB 2257 creates blanket supervision practices over a large number of former offenders. Criminal justice researchers in recent years have noted the role of community supervision in perpetuating mass incarceration. Through technical violations alone, people under supervision can be sent back to prison or jail for infractions that wouldn’t be considered crimes for other people. These include transgressions like missed appointments with parole officers, arbitrary curfew violations, and even traffic tickets, rather than for committing new crimes.
In FY 2019, almost 25 percent of the people who were sentenced to prison in West Virginia were arrested for parole and probation technical violations. Between 2015 and 2019, the average was 22 percent.
More often than it helps, living under probation or parole creates additional stressors for people during an already precarious time as they attempt to re-enter society after incarceration. Prior arrangements have to be made to change work shifts, and managers are reluctant to hire someone with so many restrictions hampering when and where they can work. Similar pre-approval is needed to leave the state or even the county. Depending on the probation supervisor and their conditions, even associating with someone who also has a criminal record can be a violation of a person’s probation.
Undoubtedly, the extended supervision created by HB 2257 will lead to more parole and probation revocations, many of which will be for technical violations. On any given day in West Virginia, 666 people are incarcerated in prisons for community supervision violations, costing the state $22 million per year according to a 2019 Council of State Governments Justice Center report. $2 million of that total is for technical violations. And notably, neither of those figures includes the people who cycle in out of regional jails for supervision violations.
In addition to the heightened incarceration costs, adoption of this bill would also lead to increased costs for the state through the West Virginia Supreme Court of Appeals Division of Probation Services. The Division estimated at a Judiciary Committee meeting that it would need to hire at least eight additional probation officers at a cost of approximately $600,000 per year.
This is a step backward at a time when other states are making real progress toward criminal justice reform. Not a single other state has a provision that allows for 10 additional years of supervision on top of parole for drug crimes. The supposed intent of HB 2257 is to keep people convicted of drug crimes under longer supervision, and assumes that the fear of being sent back to prison for drug use will stop these people from using drugs again. However, this assumption ignores the reality that recovery is an ongoing process that requires more than just the fear of reincarceration. If the Legislature is serious about reducing recidivism, they should prioritize devoting more resources to reentry in West Virginia, including short- and medium-term housing, comprehensive health and drug treatment, and job training, rather than spending on increased supervision.
