Ahead of the 2024 legislative session, there seemed to be broad consensus among lawmakers, Division of Corrections and Rehabilitation (DCR) officials, and the public that addressing multiple crises in our criminal system should be a priority. On the surface, legislators seemed ready to take action. Over the course of the 2024 regular session, more than 400 bills related to criminal law were introduced.
Some of the factors driving the attention around our criminal system include:
Instead of addressing these crises, the legislature accomplished little for folks impacted by the system.
Many of the bills introduced in 2024 focused on increasing punishment after harm has already occurred, instead of preventing crime or harm before it happens. Approximately 175 of the criminal law bills introduced created a new criminal offense or increased a sentence penalty. For the second year in a row, a draconian drug policy, Senate Bill 154, passed the Senate, but again failed to move forward in the House.
A few bills addressed the extra burdens placed on people who have gone through the criminal system. Senator Laura Chapman introduced legislation to limit the use of criminal records in professional licensing (Senate Bill 493). Senator Glenn Jeffries attempted to end the counterproductive practice of suspending driver’s licenses for unpaid court debts (Senate Bill 479). Delegate Amy Summers sought to ensure that every person who left a state prison had a state-issued ID card, which has become a necessity for finding housing or work (House Bill 5565). Unfortunately, none of these sensible efforts made it out of committee – or even onto a committee agenda.
Some positive legislation did make it across the finish line, though often in a narrower form than criminal law reform advocates would have preferred. The legislature expanded expungement eligibility for people whose cases were dismissed (House Bill 4399). This is an important step forward, but expungement should be available to a far broader population. Another successful bill eliminated the mandatory incarceration imposed on people convicted of third offense shoplifting (House Bill 4998). People convicted of this felony offense are now eligible for parole, but they still face a maximum penalty of one to 10 years. Senate Bill 269 decriminalized test strips for controlled substances, which can be used to avoid accidental overdoses. Unfortunately lawmakers also passed legislation (House Bill 4667) that bans harm reduction programs from distributing smoking devices, which can reduce syringe use and related public health problems.
Lawmakers primarily focused on increasing pay and earnings of the systems that profit from incarceration. One bill will provide sheriffs with higher fees for serving subpoenas and court notices (Senate Bill 240). Lawmakers also ensured per diem compensation for newly elected and senior status judges (House Bill 5430 and Senate Bill 649). And in spite of a year of scandal and lawsuits for the West Virginia State Police, lawmakers reduced the minimum age for a state police officer to 18 years (Senate Bill 712), and raised state police pay (House Bill 4883).
No bill represented these priorities better than Senate Bill 725, which was titled “clarifying conditions for pretrial release and maximum bail amount for certain defendants.”
There was wide consensus that pretrial release deserved the Legislature’s attention. At the start of session, people behind bars, their loved ones, DCR, and lawmakers were all in agreement: West Virginia needed to reduce jail overcrowding.
The state’s 10 regional jails were originally built to house 2,883 people. And yet, on any given day, these jails will house more than 4,400 people. More than half of these people are legally innocent and awaiting trial–jailed because they cannot afford a money bond.
This can be devastating. A person jailed pretrial is at greater risk of job loss and reduced future earnings, becoming homeless, and losing custody of their children. They are also more likely to be convicted, and more likely to receive a longer sentence.
Lawmakers could have offered any number of solutions to jail overcrowding, including providing guidelines to encourage more pretrial release, something the Legislature accomplished in 2020 – before reversing course the following year.
Instead, SB 725 increased the number of cases in which a magistrate judge would be required to set a money bond. While there is no evidence that posting a money bond increases court appearances or reduces pretrial crime, money bond does make it likelier that an accused person will await trial from a jail cell. The proposed bill also expanded the number of cases in which bond could be posted by a bail bondsman. Together these provisions would have sent more people to the state’s overcrowded jails and created more customers for the bail bond industry.
SB 725 sailed through the Senate Judiciary committee, then passed the Senate on a vote of 29 to 2. But after House lawmakers heard from magistrate judges, the House Judiciary Committee rejected the bill.
A few days later, SB 725’s language was inserted into an unrelated bill that tackled pay scales for judiciary staff.
Thankfully, in the end, the bill failed to advance. Lawmakers were unwilling to send more people to jail for industry profit.
There is a limit to what state law can do to reform a criminal system dispersed across 55 county courts, city courts, and dozens of jails and prisons.
Still, two proposals demonstrated how legislation could dramatically improve the lives of people who live and work in jails and prisons. Senator Jack Woodrum and Delegate Kayla Young each introduced bills that would allow courts to take a “second look” at long prison sentences (Senate Bill 736 and House Bill 4021).
Under a Second Look law, if a judge finds that the person does not pose a threat to the community and the interests of justice no longer support the original sentence, the judge may grant release, place a person on supervision, or reduce the sentence term.
Experts have known for decades that people “age out” of crime, which peaks during adolescence and early adulthood, then decreases as a person ages. Which is why legal associations like the American Bar Association and the American Law Institute recommend Second Look policies.
Today, one out of every four residents in West Virginia prisons is considered “elderly,” which research tells us is the population of people least likely to be re-arrested after release. West Virginia prisons have had to meet the needs of this aging population with hospice and dementia units. Experts predict that the number of incarcerated people with dementia will triple in the next 25 years. Finally, locking people up for long periods does not discourage future crime. Both the National Research Council and the Department of Justice have concluded that longer sentences have no material deterrent effect.
A Second Look policy provides a humane, evidence-based process for releasing people who no longer pose a threat to the community. Unfortunately, despite bipartisan sponsorship, neither Second Look bill advanced this session. But Second Look advocates will be back–at interims and at next year’s session.
The best chance we have for winning substantive change at the Legislature only comes when we combine solid research with real people power. If you are reading this and you are personally impacted by our state’s criminal system, we want to hear from you so we can come back stronger. Email Sara at swhitaker@wvpolicy.org to schedule a time to chat.
