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Judiciary chairman: Criminal justice reform ‘humanitarian’ and ‘economic’ issue

January 29, 2019

In a break from tough-on-crime thinking, the Legislature is moving a series of bills designed to keep ex-convicts out of jails, not reel more in.

From letting certain nonviolent offenders clear their records after years of good behavior, to allowing the dismissal of drug offenses after people complete drug court programs, to helping released inmates obtain state identification, lawmakers are trying to reduce recidivism rates in West Virginia.

According to the most recent state data, about 24 percent of offenders released in 2014 were recommitted to the criminal justice system within three years. Of the lot, roughly 44 percent were re-convicted within one year of release.

Of any category, drug and narcotic offenders were the most likely to be re-committed after release, with a recidivism rate of 19 percent after three years.

“I would call it both a humanitarian as well as an economic issue, certainly, we’re learning that there are people in our correctional system that maybe we’re mad at but shouldn’t be afraid of,” said House Judiciary Chairman John Shott, R-Mercer, speaking on the various reform bills.

“I think it’s a package deal. Any time we identify an obstacle, we need to ask whether there’s a reasonable basis that that obstacle is there. If there’s not, we need to eliminate it.”

Delegate Mike Pushkin, D-Kanawha, said the legislation should also help pump up West Virginia’s traditionally low workforce participation rate.

“As a society, we should be working to help make it easier for people to get back to work so they don’t commit crimes again,” he said. “That’s the point.”

Here’s a look at some of the bills up for consideration:

Expungement

The Senate passed Senate Bill 152, which would expand nonviolent felony offenders’ ability to seek expungement for criminal convictions after they complete their sentences, on Tuesday 33-1.

Senate Judiciary Chairman Charles Trump, R-Morgan, commended the Democratic sponsors who wrote the bill for drafting a balanced “policy of redemption” in giving people a second chance.

If passed, the bill would allow offenders to petition a court for certain offenses after they have completed their sentences and maintained good behavior. Expungement would only be available for one-time offenders.

Felony offenders can obtain preliminary expungement three years after completing their sentence and permanent expungement five years after that. Misdemeanor offenders can obtain preliminary expungement one year after completing their sentence and permanent expungement three years after that.

A preliminary order of expungement would order the sealing of all court records of the nonviolent offense that was the subject of the petition, although it can be reversed.

Those who have their crimes expunged would not be forced to disclose the conviction to employers and would be able to obtain firearms permits, Trump said on the Senate floor.

Those convicted of crimes involving minors, violence, use of a deadly weapon, aggression against a spouse or law enforcement officer, driving under the influence or without a license, incest, animal cruelty and others may not seek expungement, should the bill pass.

Sen. Eric Tarr, R-Putnam, cast the lone vote against the bill. He said he did so because the bill poses risk to employers who could be hiring people with substance abuse problems that are likely to reoccur. Those problems could lead to increased health care costs and other liabilities to the employer, he said.

Drug court

The Senate passed Senate Bill 62, which allows a court to dismiss a charge against people found guilty of possessing a controlled substance (though not marijuana) pending completion of a drug court program, unanimously on Tuesday.

Drug courts are designed to reduce recidivism rates among drug offenders and to increase the likelihood of successful rehabilitation among participants. They rely on a non-adversarial judicial flow that integrates drug and alcohol treatment, drug testing and recovery support.

The House Judiciary Committee is also set to take up a bill that would create family drug courts, which are specialized courts that deal with cases of abuse and neglect involving substance abuse. Five thus unnamed West Virginia counties would pilot the courts to test their efficacy.

Easing bail requirements

The House passed House Bill 2190, which would exempt non-violent misdemeanor offenders from having to post bail, instead releasing them on their own recognizance, in a 91-4 vote Monday.

The bill would not apply to offenders whose crimes involved violence, a minor, a deadly weapon, a drug violation or a “serious misdemeanor” traffic offense.

When considering the legislation, the House Judiciary Committee heard testimony from the Division of Corrections that counties paid regional jails $1.9 million in 2018 to imprison people who couldn’t post bail of $1,000 or less.

Likewise, people who can’t afford to post bail spent an average of 11 days incarcerated, including one for as long as 127 days, which can be a threat to employment status.

On the House floor, Shott, who sponsored the bill, said people spend an average of six days in jail waiting to post bond and amounts can vary widely depending on the magistrate. These stays can hurt suspects’ employment statuses who have not even been convicted of a crime.

Additionally, he said magistrates are public officials and are sometimes under pressure to impose tough bail amounts.

ID cards

The House is set to vote on House Bill 2083 next week, which codifies the Division of Corrections’ current policy of issuing temporary identification cards to released inmates. The bill goes further in that it renders the IDs as official state identification for 90 days, giving ex-convicts a chance to get to the DMV to procure permanent identification.

Pushkin, the bill’s lead sponsor, said the legislation comes in response to a common stumbling block released inmates face.

“One of the main things we hear from people who have been recently paroled or released is they have a hard time getting IDs. They’ve been away for a while, they might not have kept their driver’s license valid or don’t know where their social security card or birth certificate is,” he said.

The House bill found limited opposition in Delegate Sharon Lewis Malcolm, R-Kanawha, who asked a Division of Corrections employee who testified to the committee whether the legislation would enable undocumented immigrants to vote.

“So those are the people that you’re now going to release, and it could be an illegal alien, as far as we know, so you’re going to release them with a card that they can now go to the DMV with and they can now vote with it,” she said.

An attorney with the Department of Military Affairs and Public Safety replied that the department works with Immigration and Customs Enforcement on a daily basis and that no non-citizens would receive state identification cards.

When informed by Pushkin that released felons can vote in West Virginia, she took issue with the concept.

“No, I didn’t know that,” she said. “That’s too bad, maybe we ought to change that law.”

SNAP

The House unanimously passed House Bill 2459 Thursday that lifts a lifetime ban on people convicted of a felonious drug crime from obtaining Supplemental Nutrition Assistance Program benefits, commonly known as food stamps.

While the ban is federal, West Virginia is one of three states (along with South Carolina and Mississippi) that do not seek waivers from the provision.

Seth DiStefano, a lobbyist with the West Virginia Center on Budget and Policy, said current policy singles out those convicted of drug crimes even after they’ve done their time, and the bill is just a step toward basic equity.

“I think this comes down to fundamental fairness and doing what we can to make a better re-entry process for getting people out of prison and back into the workforce and leading productive lives,” he said.

Veterans court

Sen. Ryan Weld, R-Brooke, introduced Senate Bill 40 to allow the Supreme Court to establish 10 “Mental Health and Military Service Members Courts” around the state by 2024, with the first opening in 2020.

Should a judge, prosecutor and military or mentally ill alleged offender all consent, the offender could participate in the special court.

Weld said men and women come home after active service deployments and face difficulties adjusting, which sometimes manifest themselves in the form of violence or substance abuse.

The court, he said, would be specially formed to help tailor criminal justice with defendants’ service records in mind. The idea is similar to drug courts, which are used around the state.

“If what causes them to be in the criminal court system is connected to their time in the service in any way, let’s take a look at a couple different things: mental health counseling, substance abuse counseling, anger management, include an incarceration period, but really look at how we can try to rehabilitate and help that person instead of just throwing them in jail,” he said.

He said he’s reintroducing the veterans courts system, which former Supreme Court chief justice Allen Loughry defunded in 2017.

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