Emily Allen Published

Stakeholders Say New Bill For Criminal Law Rewrite Lacked Input, Transparency

Delegate Brandon Steele speaks on the House floor Monday, March 30, 2021.

Last spring, a small, bipartisan group of West Virginia lawmakers embarked on an enormous task — the rewriting of several hundred pages of criminal law.

Every one to two weeks, the five House delegates would meet over a video conferencing app to consider a new section of crimes. They tackled everything from homicide to the improper disposal of an abandoned refrigerator, from human trafficking to computer hacking.

They also created a new, tiered sentencing system for the hundreds of penalties listed in Chapter 61 of state code for “Crimes and Their Punishment.”

“This was billed from the beginning as one of the top items that would be run and dealt with,” said former Del. Joe Canestraro, one of the group members. Canestraro, a Democrat, is now Marshall County prosecutor.

But instead, House Bill 2017 — a 400-page culmination of the group’s work — was among the first introduced and the last considered, passing the House Judiciary Committee on Thursday, March 25, just one day before the deadline for bills to be sent to the House floor.

Stakeholders in the criminal justice system, most prominently including the West Virginia Prosecuting Attorneys Association but also organizations for victims rights, the formerly incarcerated and alternative sentencing, say they weren’t given a chance to weigh in on legislation that will drastically alter their jobs and the experiences of those they work with.

Nor were all of these groups notified until February, they say, that this was something the House was working on, despite it being a priority among lawmakers.

For the incarcerated, the bill guarantees at least three months of new jail time for more than 200 offenses, while creating four new life sentences. For victims, the bill takes away some of the predictability prosecutors can offer to those who testify against their abusers.

“It’s probably going to have some enormous human costs and fiscal costs, at a time when our state is budget-strapped and when other states have been trying to find a way to reduce the prison population,” said Quenton King, a criminal justice policy analyst for the West Virginia Center on Budget and Policy.

Judges Get More Leeway, Victims Less Predictability

Currently, each crime listed in state code comes with its own required jail time and fines for a judge to impose.

Most of these sentences are “indeterminate,” and include the minimum number of years that someone has to wait before they’re parole eligible, along with the maximum amount of time someone might have to spend behind bars.

House Bill 2017 scraps all of the state’s indeterminate sentencing requirements and replaces them with a series of “determinate” options. The legislation offers more discretion to judges than what currently exists by handing them a span of years they can pick from, depending on the severity of the crime.

“You have to trust your judges and prosecutors here,” said lead sponsor Del. Brandon Steele during a presentation of the bill to other House members on Monday. Steele, a Republican from Raleigh County, did not respond to multiple requests for comment over the last month and a half.

The legislation creates six classes of felonies and three misdemeanors, each class having its own range of years from which a judge can pick.

The worst kind of felony is a class 1, requiring life in prison with the chance to parole after 15 years, depending on the jury. The lightest felony, a class 6, allows a judge to choose from a one to five-year range.

Judges also can decide, before sentencing, to reduce charges against someone facing a class 6 felony to a class one misdemeanor, according to the bill. That would result in less required jail time.

“The whole philosophy behind this bill is you quit being mad at who you’re mad at and over-punishing them, and you look at who you’re afraid of,” Steele said. “Who are you afraid of?”

While Steele said Monday that class 6 felonies consist mostly of financial and property-related crimes, president Perri DeChristopher of the West Virginia Prosecuting Attorneys Association said the classification also encompasses sexual assault in the third degree, sexual abuse in the first degree, and certain charges related to the distribution of child porn.

“Some of these offenses are offenses like third-offense domestic battery, where someone has been convicted of domestic battery several times, and some of those offenses include abuse of a child,” said DeChristopher in testimony to the House Judiciary Committee Thursday.

She also decried the same mechanism that Steele insisted would offer prosecutors more leeway — the large ranges of years that a judge has to choose from under House Bill 2017’s new sentencing system.

“For a class 2 felony, the range is a 45-year difference,” DeChristopher said Thursday. “That does not give us the predictability that we can really suggest to a victim or witnesses to say, ‘if we go to trial, this is what could happen.’ Nor does it help the defendants.”

Overcrowded Jails And Millions In Debt

Of the hundreds of offenses addressed in House Bill 2017 — the bill amends all of Chapter 61 but leaves Chapter 60, which contains most of the state’s drug crimes, mostly untouched — the ranges proposed make it harder for some people to get out of prison or jail.

For more than 200 felony charges, the proposed sentencing system means people will have to wait at least three more months behind bars before they’re eligible for parole.

Del. David Kelly, R-Tyler, was a member of House Bill 2017’s working group and is a co-sponsor for the legislation. He said the increase in proposed jail time was an “unintended consequence,” but still supported the bill’s passage Thursday.

“Clearly, there’s no perfect bill,” Kelly told the committee. “But the current code isn’t perfect, so we need to pass this now.”

If this bill becomes law, King with the WVCBP says the state risks further overcrowding in its regional jails, where more than half of the population was incarcerated pre-trial on Monday, and where nearly a third of the jail population has been sentenced to prison and is still waiting to be transferred.

“We’ve seen this in the last few years,” King said. “This bill is going to create new, even larger backlogs in jails. Just right now, there’s 6,000 people in jail, and a third of those should actually be in prison.”

King has studied the impacts of jail overcrowding on county budgets — in 2019, counties were billed more than $44 million for regional jail costs, for which the state also pays about half. From 2015 to 2019, counties fell behind on jail costs by roughly $2.3 million per year, which King said indicates they’re “incarcerating beyond their ability to pay.”

Director Jason Huffman from the West Virginia chapter of Americans for Prosperity, a conservative-minded political advocacy group, said this is one of the largest reasons the AFP opposes House Bill 2017.

“This legislation, the way it increases the time that folks will spend incarcerated, that’s going to have a negative fiscal impact for counties that are already struggling with their jail bills,” said Huffman.

The same day that House Bill 2017 passed the judiciary committee, Huffman’s group wrote lawmakers letters, saying the legislation “unnecessarily increases penalties which are already sufficiently punitive” and that the changes “will not make our communities safer.”

Waiting On The Sentencing Commission

Weeks before attorneys for the House Judiciary Committee say Steele’s group began meeting in April 2020, the governor signed House Bill 4004 into law.

This bill created a brand new West Virginia Sentencing Commission, to study and recommend well-informed changes to the state’s criminal statutes.

Before passing House Bill 2017 out of committee Thursday — an event that took more than five hours of explanation, testimony and debate — several lawmakers, mostly Democrat, asked why the House couldn’t just wait on the commission’s first report, which is due Jan. 22, 2022.

“This is a big deal. This is 150 years of the entire criminal law of the state of West Virginia,” said Del. Chad Lovejoy, D-Cabell. “I know we’re in a rush to kind of get things done, but sometimes, getting it done right is more important than getting it done first.”

In the end, a majority of members agreed to advance the legislation.

“There were some of us that weren’t about to sit around and let a year go to waste,” Steele said on Monday. “It wasn’t in a manner to undercut anybody, but to get the ball rolling, to make sure that we were working on something.”

Del. Kelly, who helped create and sponsor House Bill 2017, was the lead sponsor behind House Bill 4004 last year. He said there’s still work the group can do even after this bill passes.

To Canestraro, the 12-member sentencing commission might’ve made a more informed proposal.

“This was the work of five people,” he said of House Bill 2017. “It really did not have much input from all of the interested parties who work in the real world, in the criminal justice system.”

The West Virginia House of Delegates will consider amendments to House Bill 2017 during its floor session Tuesday, March 30. All bills in the House have until Wednesday to pass onto the next chamber in time for the end of the legislative session.

Emily Allen is a Report for America corps member.