Advocates for criminal justice reform herald the new pre-trial legislation going into effect Friday June 5th as especially critical given the looming threat of COVID-19 in overcrowded regional jails and prisons.

House Bill 2419, passed by the state legislature during the 2020 regular session, intends to reduce the number of people incarcerated pretrial for low-level misdemeanor charges.  

The bill provides a presumption of release for a person charged with non-violent misdemeanor offenses unless good cause is shown that the person should not be released, or when the person is charged with a more serious misdemeanor offense as outlined in the legislation, for example crimes involving a child or a deadly weapon.  

HB 2419 outlines state policy against the unnecessary incarceration of arrested persons pending trial and also places a limit for cash bail in misdemeanor offenses at no more than 3 times the maximum fine for the offense.

The new law says that courts should use the least restrictive condition or combination of conditions “reasonably necessary” to ensure appearance at future court dates, the safety of the community, and the maintenance of relevant evidence.

When someone remains incarcerated after their initial appearance because they cannot meet the requirements of a secured bond, the magistrate or judge who set the secured bond must hold a subsequent hearing within 72 hours of setting the initial bail.

The hope is to safely lower county jail bills and the burden on taxpayers as the daily cost of incarcerating a person in regional jails is $48.25.  On June 3rd alone, 349 people were incarcerated for pretrial misdemeanor charges, costing counties and taxpayers $16,839. 

From a procedural fairness standpoint, the bill seeks to reduce the likelihood and the length of time that a person, who has not been convicted of a crime, is incarcerated while awaiting their day in court. 

Studies show that the impact of pre-trial incarceration can be dire because in many cases people lose their jobs, their home, and experience lasting negative effects for themselves and their family. 

Moreover there is overwhelming evidence that people who are incarcerated pretrial are more likely to be found guilty and more likely to take a guilty plea for a crime they did not commit, than those who can either afford bail or who are released on a personal recognizance bond.   

Based on a randomized survey of judges nationally, a Princeton University study found that 43 percent of detained defendants plead guilty compared to just 20.8 percent of released defendants. Detained defendants are also 15 percent more likely to be incarcerated compared to released defendants, and have prison sentences that are 264.6 days longer on average.

With a renewed spotlight both nationally and in West Virginia on persisting racial disparities in policing and the criminal justice system as a whole, the legislation has heightened significance given that in West Virginia Black people are 3.5% of the total state population, but 13% of the state’s incarcerated population. 

For further context, advocates point out that on March 2nd before the COVID-19 response plan went into effect and the jail population started decreasing, there were 583 people incarcerated pre-trial for misdemeanor charges, costing taxpayers $28,129.

Later in March and through April, when the state was rapidly responding to the COVID-19 pandemic, police were making fewer arrests and the WV Supreme Court issued directives for the lower courts to expedite preliminary bond hearings.  As a result, the pretrial misdemeanant population dropped 60 per cent.

Crime generally did not increase during this period of decreased jail population, raising the question as to the efficacy and cost-effectiveness of incarceration as the primary means of public safety. 

Lida Shepherd with American Friends Service Committee who advocated for the bill says, “From a public health and safety perspective, this new law is an opportunity to reduce the jail churn in and out of regional jails and the likelihood of another COVID-19 outbreak like we saw in Huttonsville and the surrounding community.  And even absent the COVID-19 threat, West Virginians presumed innocent should not have their freedom contingent upon their income, and certainly not their skin color.  This new law is a step towards more fairness in West Virginia’s criminal justice system.”

“When a person who has been convicted of no crime has to sit in jail, even for a short amount of time, they can lose their job, their home, and their family. With the added threat of COVID-19, they could also lose their lives,” said Greg Whittington, ACLU-WV Criminal Law Reform Campaign Director. “While there is much work left to be done in reforming our dehumanizing system of mass incarceration, this is a major step in transforming the lives of West Virginians and their families, and making this a more just community.”

Coalition members include: American Friends Service Committee, Mountain State Justice, Jefferson County NAACP, WV Center on Budget and Policy, Americans for Prosperity-WV