Daily Statistics (September 8, 2021)
5,366 people in WV regional jails
4,318 people in WV state prisons
Jails are 26% over capacity
13% of the prison and jail population is Black

Criminal Justice Policy and the 2021 Legislative Session

This post was written by Quenton King for the West Virginia Center on Budget and Policy

The 2021 West Virginia legislative session ended last month, and now that the majority of the bills have been signed by the governor or passed into law without his signature, we can take stock of how criminal justice policies fared at the Capitol. 

The 2020 session saw several bills that were strides toward reform and with the past year attracting much attention to the injustices in our legal systems and the need for reform, the 2021 session should have been a great opportunity to continue to work toward a fairer criminal justice system. Unfortunately, criminal justice reform advocates spent a large amount of their time and energy fighting bills that were steps backward for reform in West Virginia. Here is a recap of criminal justice bills that were introduced and debated during the 2021 session.

Harmful Legislation That Failed to Pass

Rewriting the Criminal Code (HB 2017): HB 2017 would have been a complete overhaul of West Virginia’s criminal code and would have increased the parole eligibility or maximum prison sentence for more than 200 felony offenses. As written, it also would have created at least four new life sentences and required people convicted of misdemeanors to pay for their own jail incarceration. The bill was written with little consultation from law enforcement, criminal justice experts, and advocates, including directly impacted people. Ultimately, it was passed by the House but the Senate chose to send it to the West Virginia Sentencing Commission. The Sentencing Commission was created in 2020 to “promote a fuller understanding of this state’s criminal justice sentencing system.” The commission would have reviewed HB 2017 and could have chosen to include components of it in the final commission report due January 2022. However, the Senate’s amended version of HB 2017 was not picked up in the House before the session ended.

Extended Supervision for Certain Drug Offenders (HB 2257):  This bill would have created 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 people who leave West Virginia’s prisons and jails. HB 2257 would have further exacerbated this difficulty and would have made West Virginia the only state that allows for additional supervision time for drug crimes. HB 2257 passed in the House, but never made it to the agenda of the Senate Judiciary committee.

Positive Steps Forward

Juvenile Restorative Justice Programs (HB 2094): HB 2094 expands access to juvenile restorative justice programs in West Virginia. Prior to HB 2094, restorative justice programs were only available to youth who were charged with nonviolent misdemeanors, but now young people charged with misdemeanor assault and battery are also eligible. If the defendant and the victim both agree to participate in the restorative justice program, the defendant will be able to have their case dismissed. This is an important bill, but it could be improved in the future by directing more funding to restorative justice programs and by also applying to juveniles charged with felonies. Currently, the WV Department of Health and Human Resources only provides funding to restorative justice programs in less than half of the state’s counties.

Powers and Duties of the Parole Board (HB 3078): HB 3078 will allow incarcerated people who would be parole-eligible if not for having a remaining class requirement in prison to take that class while out on parole. This situation became especially critical during the pandemic when prisons drastically reduced the programming they offered. While the Parole Board still has the power to deny release for individuals who fit the criteria for HB 3078, it is likely this bill will have a positive impact on the prison population and jail backlog.

Challenging Faulty Forensic Evidence (HB 2888): Faulty or misleading forensic evidence was a factor in 24 percent of all wrongful conviction cases in the United States. HB 2888 will enable people to more easily challenge their conviction if they can assert that faulty forensic evidence was a factor in their conviction. 

Authorizing the Division of Corrections and Rehabilitation to establish a Reentry and Transitional Housing Program (HB 3304): As introduced, HB 3304 would have created a reentry and transitional housing program in the Division of Corrections and Rehabilitation (DCR) intended to allow people with 180 days or less on their sentence to serve the remaining time in a transitional housing facility with support. Included were provisions for education, job and skills training, and substance use treatment. While the House passed HB 3304 in its original form, the Senate passed a strike-and-insert amendment that reduces the scope of the bill. Now it expands work release facilities to up to five locations in the state. The DCR is still instructed to develop internal policies that will improve programming at these locations.

What We Wished Had Passed:

  • HB 2552 would have removed the one-time limit on expungement of certain convictions.
  • HB 3174 would have required the DCR to provide free feminine hygiene products in correctional facilities.
  • HB 3163 would have ended solitary confinement for juveniles.
  • HB 2864 would have restored voting rights for people on probation and parole.
  • Despite the high cost of regional jail incarceration and the fact the jails have been filled beyond capacity for eight of the last 11 years, no committee took up legislation that would have reduced the jail population.
  • HB 2419 was a modest bail reform bill passed during the 2020 legislative session, but the pretrial population has hardly changed since it went into effect last June. Legislators should have improved upon the bill this year by mandating data collection and reporting for pretrial decisions.

Our neighboring states made significant strides in the criminal justice reform space, and while West Virginia did pass several positive bills, many more bills were introduced that would have been regressive. West Virginia legislators should prioritize policies that will reduce incarceration in the state and bring down barriers to reentry, not create more hurdles for vulnerable West Virginians.

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