West Virginia lawmakers didn’t come up with a solution Tuesday as they pressed state officials about their concerns with the impending increase in the amount of money county governments pay to incarcerate people in the state’s jails.
Department of Homeland Security officials couldn’t definitively say how much the new rate, typically referred to as the per diem, would be during a meeting Tuesday of the West Virginia Legislature’s Oversight Committee on Regional Jail and Correctional Facility Authority.
Officials and lawmakers did share concerns that the new per diem is going to be more than the current $48.25 per inmate per day, putting further financial strain on county governments across — some of which already are more than $1 million past due on their jail bills under the existing rate.
“We’re in a position where we’ve got to do something,” said Delegate David Kelly, R-Tyler, the committee’s co-chairman. “We’ve got counties in the state that are struggling with the per diem. We know that. Our concern is, we’re going to once again bring another group of counties into that same position, and that’s a concern I think this whole body has.”
Tuesday’s meeting took place during the last day of what was three days of interim committee meetings for the Legislature. The meeting also took place about three weeks before the existing per diem rate is to expire, per a law the Legislature passed in 2018.
“Hopefully, we will possibly get some of these jail fee problems addressed before they kick in,” Sen. Charles Clements, R-Wetzel, the committee’s other co-chairman, said during the meeting.
In January, House Speaker Roger Hanshaw, R-Clay, said, “The county jail bill situation is a noose around the neck of every county in West Virginia,” but lawmakers did not take up any measures to address jail bills during the 2021 regular legislative session that ended April 10.
The law has kept the per diem rate artificially flat to save counties money.
That has been the case, with counties saving a combined $15.7 million in the 2019 and 2020 fiscal years because of the flat rate, Mike Coleman, director of administrative services for the Department of Homeland Security, told the committee.
County governments also have saved $18.8 million from a provision in the law that shifted the cost of incarceration from counties to the state, beginning the day an incarcerated person is convicted of a crime, Coleman said.
But those cost savings could be almost entirely wiped out by a rate increase, Cabell County Sheriff Chuck Zerkle told the committee.
Cabell Commissioner Kelli Sobonya told the Gazette-Mail in January that the county had worked since 2017 to bring down its $3.3 million jail bill, and Zerkle reiterated those efforts to the committee Tuesday.
Cabell County has been the “epicenter” of the opioid crisis and, likewise, the epicenter of recovery, Zerkle said, noting there are 65 recovery facilities there.
When he took office in 2017, Zerkle established a work group that includes a county prosecutor, a defense attorney, a victims’ advocate and himself. The group takes a look at what he said is the “low hanging fruit,” meaning people incarcerated by Cabell County for misdemeanors, such as shoplifting, prostitution and other nonviolent offenses, to determine if they can be placed on home confinement, probation or pretrial diversions, like drug court.
“We finally got this thing down to where we can manage it,” Zerkle said. “You throw this 14% [increase] on me, and I’m looking at another one-third of $1 million. We’re just clobbered, and we need some help.”
The 2018 law said the State Budget Office will calculate the per diem rate each year, based on the last three years of costs. In the most recent calculation, done in July 2020, the actual cost to incarcerate one person for one day in the state’s 10 regional jails was $54.88.
Under the flat $48.25 per diem, West Virginia’s 55 counties were billed a total of $10,798,639.50 during the first quarter of 2021, according to data the Department of Homeland Security provided to the Gazette-Mail.
Under the $54.88 rate, those counties would be billed $12,282,473.30 for the same number of people incarcerated for the same number of days.
Under questioning from Delegate Mick Bates, R-Raleigh, Coleman said that, because the rate is calculated using the most recent three years worth of data, the new per diem rate wasn’t known at the time of Tuesday’s meeting.
Raleigh County had the fifth-highest jail bill during the first quarter of 2021, paying $498,229.50 in the first three months of the year under the capped $48.25 per diem. That is 10,326 inmate days during that time.
Under a rate of $54.88, Raleigh County would pay $566,690.88 for the same number of inmate days.
Under questioning by Kelly, Coleman told the committee the jails are overcrowded despite efforts during spring 2020 to limit their population at the onset of the COVID-19 pandemic in the state.
As of Tuesday, there were 5,445 people incarcerated in the regional jails, which are equipped to house 4,265 people, Coleman said.
Corrections officials took steps in the spring to decrease the jail population, reducing it by 10% by the beginning of April 2020.
Coleman said state officials went as far as to talk with local law enforcement agencies, to encourage them to have officers issue citations to people, instead of putting them in jail during the pandemic. Division of Corrections and Rehabilitation officials also didn’t transfer inmates between jails, to prevent the spread of the virus among inmates and staff, he said.
On April 20, there were 4,100 people in the state’s jails. By December 2020, the average daily population of the regional jails was back up to 5,640 people, 1,375 people over capacity.
Zerkle said the majority of the arrests made in Cabell County are by the Huntington Police Department, but Huntington isn’t legally required by the state to pay the bill.
Zerkle said, if municipalities were required to pay even a small portion of the jail bills that the county governments are responsible for managing, that could help with the cost of incarceration, as well as jail overcrowding, because city officials would be more likely to manage something if they “had skin in the game,” he said.
“The counties have got to have a little bit of relief in this thing,” he added.