Nigel Jeffries: Pretrial incarceration rates and HB 2419

House Bill 2419 aims to tackle West Virginia’s high pretrial incarceration rate and the corollary costs incurred by counties. While decreasing the state’s incarceration rate is a laudable goal, House Bill 2419 was crafted with incomplete information, and therefore will have little effect.

According to data provided by the Division of Corrections and Rehabilitation, there are currently 5,107 people in West Virginia’s regional jails. Of those incarcerated, more than half are awaiting trial.

House Bill 2419 would require magistrates, except for good cause shown, to release certain alleged non-violent offenders on their own recognizance. A personal recognizance bond allows the alleged offender to serve as their own surety without having to post money or real property.

While House Bill 2419 certainly identifies a pressing problem, there has been little discussion of the primary causes of the state’s high pretrial incarceration rate — namely, recidivism and rearrest.

West Virginia claims to have a low recidivism rate. Yet, West Virginia is able to claim a recidivism rate that is below the national average because of the way in which it defines who qualifies as a recidivist.

West Virginia defines a recidivist as an offender released from the custody of the Division of Corrections and Rehabilitation who is then recommitted to the custody of the Division of Corrections and Rehabilitation within three years. Why is this definition important? Because only felony offenders who are sentenced to prison are considered “in the custody” of the Division of Corrections and Rehabilitation for purposes of the recidivism rate.

The current recidivist definition, therefore, does not account for the following instances of recidivism: individuals convicted of a misdemeanor offense who are subsequently convicted of a new misdemeanor offense within three years; individuals convicted of a misdemeanor offense who are subsequently convicted of a new felony offense within three years; individuals convicted of a felony offense who are subsequently convicted of a misdemeanor offense within three years; individuals convicted of a felony offense who receive probation as a sentence who are subsequently convicted of a misdemeanor or felony offense within three years of being placed on probation or three years after discharging probation; or individuals who commit a felony or misdemeanor offense while awaiting trial for a prior felony or misdemeanor offense.

If the definition of recidivist were to include the foregoing instances of recidivism, West Virginia’s recidivism rate would be well above the national average.

Moreover, outside the recidivism rate there is the rearrest rate. According to the West Virginia Regional Jail’s 2018 annual report there were 4,122 arrest warrants executed in connection with an individual’s failure to appear for criminal court. Arrests for failing to appear in court ranked first out of a list of 25 of the top reasons for incarceration in a regional jail in West Virginia for fiscal year 2018. Probation violations account for 1,923 arrests and ranked eighth. Parole violations accounted for 1,116 arrests and ranked 21st. Finally, home-confinement violations came in at 23rd with 1,037 arrests.

What does the recidivism and rearrest rate have to do with pretrial bail? Everything. The judge or magistrate setting bail for an alleged offender at their arraignment must consider, among other factors, the risk of the defendant failing to appear in court, the type of crime alleged, any danger the defendant may pose and the safety of the community. Therefore, when an individual is arrested and brought before a magistrate for the purpose of setting bail, it is entirely within that magistrate’s purview to consider an alleged offender’s criminal history and past instances in which the individual failed to appear.

Because there is no comprehensive report detailing accurately the high rates of recidivism and rearrest in West Virginia, it appears the only evidence lawmakers considered in drafting House Bill 2419 is the very narrow snapshot that over half of all inmates currently incarcerated in a regional jail facility are awaiting trial. This snapshot fails to capture causation.

In order to craft good policy it is vital that lawmakers have all of the relevant, up-to-date information at their disposal. House Bill 2419 was crafted without the benefit of such information.

Nigel E. Jeffries, of Elkins, is a Charleston attorney.

Funerals for Thursday, April 9, 2020

Baldwin, Janet - 1 p.m., Armstrong Funeral Home, Whitesville.

Freeman, John - 1 p.m., Forest Memorial Park, Milton.

Moraitinis, Despina - 11 a.m., Otto Cemetery.