New Brief Highlights How Counsel at First Appearance Policy Can Protect Liberty and Reduce Jail Costs

For Immediate Release: August 24, 2022

Contact: Renee Alves, 559-916-5939

Charleston, WV – 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. This brief was authored by WVCBP criminal legal policy analyst, Sara Whitaker.

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,” says Whitaker. “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 the full brief here.