A request to transfer an inmate from one regional jail to another on Friday turned into a debate about the constitutionality of the West Virginia Division of Corrections and Rehabilitation having sole authority to determine when and where inmates are transferred before they stand trial.
Kanawha Circuit Judge Tera Salango agreed Friday to vacate an order to move Douglas “Fatty” Kidd III from the Southwestern Regional Jail to the South Central Regional Jail.
Salango agreed to vacate the order after intervention by Briana Marino, an assistant attorney general with the West Virginia Attorney General’s Office.
Marino intervened in the case on behalf of the Division of Corrections and Rehabilitation, which she said has sole authority, on behalf of the executive branch, to “classify and determine appropriate housing for each and every inmate,” whether they are awaiting trial or have been convicted of a crime.
Salango, who worked as a prosecuting attorney before becoming a judge, said it was not her experience that it had been policy or practice for any correctional entity to intervene in lower court over issues of inmate housing.
Marino said a 2018 law expanded the authority for the commissioner of the then newly created Division of Corrections and Rehabilitation to authorize the movement of jail inmates to and from regional jails the same way the commissioner is authorized to move convicted felons to and from prisons.
“The jurisdiction of the Department of Corrections, as the predecessor to the Division of Corrections and Rehabilitation, ... has not changed,” Marino said. “What has changed is [that] the Department of Corrections and Rehabilitation is now taking a proactive stance to interact more fully with the court, as well as counsel of record, in these cases to allow us to administer an increasingly complex system with an increasing inmate population that has a wider array of diverse needs.”
In 2018, the West Virginia Legislature approved House Bill 4338, which consolidated the Regional Jail and Correctional Facility Authority, Division of Juvenile Services and the Division of Corrections.
As of July 1, 2018, those entities became the Division of Corrections and Rehabilitation with three bureaus: prisons and jails, community corrections, and juvenile services.
Betsy Jividen is the commissioner of the Division of Corrections and Rehabilitation.
Rick Hollicker, Kidd’s public defender, said that, without the ability to appeal to courts in a timely fashion, defendants’ Sixth Amendment rights would be violated. He said the process to appeal for a jail transfer from the jail authority was more technical and cumbersome for attorneys and inmates. He added that, without local authority from magistrate and circuit judges, inmates are likely to be transferred to jails farther away from their attorneys, making it difficult to communicate and prepare for trials.
“It may be true that the Department of Corrections had the same authority as [the Division of Corrections and Rehabilitation] has now, but its previous authority was only over those who were imprisoned in the Department of Corrections system, those who had already been convicted,” Hollicker said. “That authority did not apply to moving somebody who was pretrial. That is new to this [law]. This is new for them. That is why this issue is only now starting to come up.”
Kidd is charged with one count of first-degree murder. He originally was incarcerated at the South Central Regional Jail, in Charleston, when he was arrested last year.
Following an altercation with a corrections officer and a subsequent lawsuit, Kidd asked Salango in December to be transferred to another jail, and she granted a motion to send him to the Southwestern Regional Jail, in Logan County.
After Kidd experienced difficulties communicating with his attorneys from Southwestern leading up to his trial this summer, Salango signed an order to transfer him back to South Central to be closer to his attorneys.
It was that order that Salango chose to vacate Friday, which meant Kidd remained incarcerated at Southwestern. However, at press time Friday, Kidd was at South Central, as his attorney had requested, according to booking records on the Division of Corrections and Rehabilitation website.
If an inmate wants to be transferred, Marino said, their attorneys should contact Jividen’s office by letter or phone call. Inmates also may ask for a transfer by using the grievance process at the jail, which could take weeks or months, depending on the inmate’s timeliness in pursuing grievances and subsequent appeals up to Jividen.
Kidd, 33, of Nitro, is accused of fatally shooting 66-year-old James Morris after an argument in front of a house on the 6700 block of MacCorkle Avenue on Nov. 26, 2018, according to the criminal complaint filed in Kanawha County Magistrate Court.
He is set to stand trial Aug. 19.