At the start of the 2024 legislative session, there is a rare moment of consensus. People behind bars, their loved ones, the Division of Corrections and Rehabilitation (DCR), and lawmakers are all in agreement: West Virginia must address and reduce jail overcrowding.
The good news is that lawmakers need not look far for a solution. They already passed one four years ago.
First, some history. For years, West Virginia jails have housed more people than they were designed to. In the last decade, state jails were the deadliest in the country. Then in 2019, the former DCR commissioner told lawmakers that the state’s 10 regional jails were “bursting at the seams.”
A few months later, lawmakers responded. In March 2020, they passed House Bill 2419 aimed at reducing the number of people in West Virginia jails.
The law created a presumption against money bond for certain misdemeanor offenses. It told magistrates and judges to consider the least restrictive bond conditions. The law encouraged the use of non-financial conditions of bond – for example, a requirement that a person enroll in substance use disorder treatment.
But the most important thing HB 2419 did was require that in cases where a person is unable to post bond within three days of their arrest, the court would hold a bond review hearing.
That bond review hearing would address a fundamental flaw: West Virginians were having their bonds decided without a lawyer present.
When a person is arrested, they are typically brought before a magistrate who explains their charges and sets a bond. West Virginia law requires magistrates to consider several factors, including a person’s criminal history, their ties to the community, and whether they can afford a money bond. These are legal factors that the average lawyer–let alone, a disoriented and stressed non-lawyer–would not know to argue. And yet, at this critical moment for an accused person, they stand alone and unrepresented.
HB 2419 offered the first chance for a court to hear from a prosecutor and a defense attorney about complex factors in play.
Unfortunately, many magistrates chose not to implement the law for felony cases, which are criminal charges that carry a possible penalty of one year or more of incarceration. They simply ignored the law.
But to reduce the pretrial jail population, felony cases are critical. As HB 2419 went into effect in June 2020, people facing misdemeanor charges represented only 7.6 percent of people in jails.
By the following legislative session, magistrates had exerted enough pressure that lawmakers passed HB 3106, which eliminated felonies from bond review hearings and extended the three day period to five days.
This was a policy failure.
At the beginning of this year, 52.6 percent of the jail population were legally innocent and awaiting trial. Of that group, 82.0 percent were being held on a felony charge. Three years after the promise of HB 2419, seven out of ten regional jails had more people than DCR had room to house.
This overcrowding is disconnected from crime incidents. Between 2011 and 2021, violent crime incidents decreased by 27.1 percent, while property crime incidents decreased by 50.4 percent.
And West Virginia citizens have paid for this policy failure. Over the last four fiscal years, the state has billed counties $180,797,333.75 for jailing people prior to trial. Imagine what our counties could have done to address their people’s needs with that sum of money.
People behind bars pay the highest price.
When a person is jailed prior to trial, they are more likely to be convicted, more likely to receive a longer jail or prison sentence, and more likely to accrue court debt than those who were not incarcerated. People in jail are at greater risk of job loss and reduced future earnings, experiencing homelessness, and losing custody of their children.
And then there is the very real threat to people’s safety and well-being inside DCR jails:
At least 86 people have died in a regional jail since HB 2419 passed. Seventy-three percent were awaiting trial.
West Virginia must stop turning to the DCR for a false promise of public safety. Reinstating HB 2419 reduces the number of people we send into their custody.
Lawmakers may once again meet resistance from judges and prosecutors who claim that these hearings will require too much of their time.
Last month, we learned that a state commission has recommended pay raises for judges and magistrates. Under the proposed pay increases, circuit court judges would be paid $155,232 per year and magistrates would be paid $75,840 per year. Compare that to the $55,217 that the median state household earns each year.
Judges and magistrates are key to solving our jail overcrowding crisis and must take up the important work given to them in HB 2419 as a condition of any pay raise.
 Federal Bureau of Investigation, Crime Data Explorer, National Incident-Based Reporting System (NIBRS) details reported in West Virginia, 2012 through 2021.