West Virginia is in a state of emergency for understaffed and overcrowded jails, and a new bill would make the problem even worse.   

Senate Bill 725 is poised to pass the Senate. It rolls back bail reform that was only passed in 2020 by prohibiting people charged with felonies from being released on personal recognizance bonds.  

What does this mean?   

Our criminal system divides crimes into misdemeanors and felonies. The primary difference is that felonies carry a maximum penalty of over a year of incarceration. These are purely political decisions. Just this year, there are bills to create felonies for protest, lobbying, and simple possession of drugs, among others.   

When a person is charged with a crime, they appear before a magistrate who decides what to do with them while awaiting trial. At this stage, there is no right to an attorney, and very few people have representation. In extreme cases, the magistrate may decide the person is such a danger to the community or so likely to flee that they should remain incarcerated while awaiting trial. 

In most cases, they will release a person on bai. The most common form of bail – the kind that most of us think of when we hear the term -- is cash bail. Cash bail is money that people must put up front before they can be released, and that they forfeit it if they re-offend or do not appear in court. 

However, in some cases, people may also be released on their own recognizance. This means they are trusted to show up for their court dates. The reform passed in 2020 sought to expand the use of personal recognizance. If SB 725 passes, it means that anyone charged with a would be denied a personal recognizance bond.  

Why is cash bail bad? 

Our legal system operates on the belief that people are innocent until proven guilty. If that is the underlying belief, then people should not face penalties for crimes they have not been convicted of. This includes incarceration while awaiting trial. 

Cash bail systems are problematic because they condition release on wealth. A person charged with heinous crimes may still be released if they have enough money. Meanwhile, there are countless stories of poor people charged with minor crimes who couldn’t afford bail, often because bail was set high. 

Not only does this mean that poor people are more likely to remain incarcerated while waiting for trial, even for minor crimes, but this can have devastating effects downstream. Within a few days, many will lose jobs. Within a few weeks, they will fall behind on car payments, rent, or mortgage. Within a few months, they may lose family relationships. 

And they are still legally innocent, held only because they couldn’t afford to purchase their freedom. 

What about SB 725? 

SB 725 was introduced by Senator Jason Barrett on Feb. 8, and has sped through the Senate. Senator Barrett’s wife, Summer Barrett is a lobbyist working for the bail-bond industry. 

Under current law, a magistrate assesses a defendant and the charges against them, and makes a decision they believe will protect the public and ensure the defendant appears in court, while hopefully respecting the rights of the defendant.  

This will lead to more defendants who are given bail that they cannot reasonably afford, and who consequently stay in our overcrowded and deadly jails  

But that’s not the extent of the harms this bill could cause.   

Prosecutors often elevate charges in order to coerce plea deals, and this bill only increases this power. Other prosecutors may choose to charge people with felonies rather than misdemeanors simply because they want to force them to stay behind bars. 

What can you do? 

The bill is likely to pass the Senate, but will still need to be considered by the House of Delegates. Contact your Delegate and the House Judiciary Chair, Tom Fast and tell them to reject SB 725. Tell them to allow judges to use their discretion. Tell them we don’t need more jail overcrowding. Tell them “tough on crime” doesn’t workWe need “smart on crime.”