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Fixing W.Va. Corrections Crisis Has Hints Of Possible Resolution

Legislators say fixing the state’s corrections crisis is not just about money. And when it does come to money, they say it’s not just about a one-time funding fix.

Information from the WV Department of Corrections and Rehabilitation shows there are still more than a thousand open jobs overall. The vacancy rate for corrections officers alone is more than 33 percent. The state’s correctional system consists of 11 prisons, 10 regional jails, 10 juvenile centers and three work-release sites.

In a media briefing earlier this week, Gov. Jim Justice said there may be some steps taken toward resolution next month.

“It’s likely in August before we can have a special session,” Justice said. “Our folks are meeting constantly with the folks upstairs.”

Folks upstairs means legislators. Rep. David Kelly, R-Tyler, and House Jails and Prisons Committee Chair, said the meetings are constant and moving toward a consensus.

“We’ve been working diligently through the summer,” Kelly said. “We’re trying to come up with a plan that everyone can get behind. I think we’re getting closer and closer, and it would be my hope and my desire that we could present something in our August interim legislative meetings.”

Kelly said there are issues that need to be resolved besides the low pay scale for West Virginia corrections personnel when compared to border states.

“There’s a lot of factors that go into these discussions,” Kelly said. “One of the things is, how can we make a pathway forward to try to reduce the overcrowding there?”

Kelly said discussions also include incentives to recruit corrections personnel other than simply using money. He said possible college payments were under discussion, but said there has been no talk about subsidizing childcare.

Kelly said the often-discussed raises, locality pay and possible bonus amounts have not been agreed upon. He did say however, that they will not be packaged as a one-time funding fix, but designated over perpetuity – as “base building.”

“If any legislation is passed,” Kelly said. “It will be built into the budget every year thereafter. That’s what I mean by ‘base building’.”

Kelly said keeping 379 national guard members working corrections jobs under an emergency executive order, duties costing taxpayers $20 million a year, can’t last.

“Those numbers are unsustainable,” Kelly said. “We’ve got to find a pathway forward, to turn the light out above the dome, and to get people through the door that can be hired and that we can retain.”

Justice began his correction crisis comments by giving a potential resolution date and expressing hope for a conclusive outcome. He ended those comments with not quite as much optimism..

“There’s no point in calling a special session, spending your money for two or three days or a week or whatever it may be,” Justice said. “To listen to 15 different solutions and go nowhere. We don’t need that. We’ve got to come to an agreement, and we’re working on it.”

Setting State Revenue Estimates Subject Of Debate

Revenue Secretary Dave Hardy said executive branch revenue estimate settings are ingrained in constitutional code.

West Virginia’s annual budget is based on revenue estimates that come from the governor’s office. The budget surplus comes from taxes collected above those revenue estimates. How those estimated amounts are determined garners differing points of view.

Sean O’Leary is the senior policy analyst at the West Virginia Center on Budget and Policy. He said when the Justice administration pointed out that this April’s general revenue collection beat the estimate by $319 million, the base budget estimate of $509 million was $284 million below last year’s actual collections of $791 million. O’ Leary called the surplus ”smoke and mirrors.”

“You’d have to assume that the governor and the budget office thought that the economy was going to collapse,” O’Leary said. “So these revenue estimates were set intentionally low in order to keep the budget low, and to generate these large surpluses.”

Revenue Secretary Dave Hardy said executive branch revenue estimate settings are ingrained in constitutional code.

“In 1968, West Virginians voted on a constitutional amendment,” Hardy said. “We call it the modern budget amendment, even though now it’s not so modern. It allows the governor to set the revenue estimates for the state of West Virginia. So every year, our governor sets the revenue estimates and then the legislature can only budget up to the limit that he sets.”

O’Leary said, unlike West Virginia, many states open up their revenue estimate setting process, getting many parties involved.

“When they do revenue estimates, they do a consensus forecast,” O’leary said. “Most other states do this where they have the tax department, someone from the university, some economists and they’ll have the legislature involved as well. And then you get more realistic revenue estimates.”

Gov. Jim Justice said his revenue estimates and budget drafting have all the transparency and outside involvement in the world.

Hardy said the governor presents a budget on the first night of the legislative session. “We literally spend 60 days talking to the legislators and our constituents and stakeholders on whether that’s the proper budget that the governor’s proposed at the back end of this process,” Hardy said.

Responding to the question of possibly setting revenue estimates too low, Justice said he’s a conservative businessman who minds the store by not being frivolous and wasteful.

“We took care of our counties the right way,” Justice said. “We have given significant pay raises four times, and the state is cooking because we didn’t go throwing money away on frivolous projects. But we sure got a bunch of folks out there that we can still help.”

Justice said a priority is stemming the corrections crisis. He wants to allocate pay raises to keep corrections officers on the job without seeking significantly higher paying positions in border states. He has said he wouldn’t call a special legislative session without a plan that has house and senate consensus. When Hardy was asked why corrections pay increase wasn’t put in the budget, he said there is some movement right now.

“There’s a plan that’s being formulated now in consultation with the legislature to meet that head on,” Hardy said. “But it can be done in a very intelligent way and it can be done through our base budget in fiscal year 2024.”

Hardy said, “throwing money at a problem is not the answer, having a plan and thinking it through is what you need to do.”

Delegates Reflect On Passed, Failed Legislative Session Initiatives

Several lawmakers called the just completed legislative session historic, while others are left with concerns over a focus on major economic development rather than helping working West Virginians.

Just moments after he struck the final midnight gavel ending the 60-day session, Speaker of the House, Roger Hanshaw, R-Clay, said passing the Third Grade Success Act was among the biggest priorities lawmakers accomplished. The speaker followed that thought with a profound overall session assessment.

“I’ll go so far as to use the word historic,” he said. “So in these last 60 days, we have divided and made more accountable the largest entity of state government in DHHR [West Virginia Department of Health and Human Resources]. We have passed the largest tax cut and put more money back in the pockets of West Virginians than any legislature ever in history. We have restructured and reformed the Public Employees Insurance Agency (PEIA) and put it on a secure footing for the next generation of public employees and school teachers. And we’ve done all that while giving pay raises to our public employees and putting teachers aides in all first, second [and] third grade classrooms in West Virginia without raising $1 of taxes.”

From the Democratic side, House Minority Whip Shawn Fluharty, D-Ohio, said while debate was less abrasive and more congenial than sessions past, he thought the allocations of a more than $1 billion state budget surplus were tilted too far away from the working class.

“We shouldn’t have had PEIA premium increases,” he said. “I mean, we have record surpluses and now we have record PEIA increases, tell me how that happens? We found a way to give pay raises to legislators, which I certainly do not support, pay raises to the governor, pay raises to everybody, and we’re gonna give increases to the PEIA recipients. It’s the one thing that they’ve held on to for years. We gave away hundreds of millions of dollars to potential projects and we ignored those who are actually here. They’re actually working and had been in West Virginia for many years raising their families. And we told them, ‘you’re getting the increase.’”

A year ago, members from both sides of the aisle dealt with troubles with foster care, a crisis CPS worker shortage and a Department of Health and Human Resources in disarray. House Health Committee Chair Amy Summers, R-Tyler, said the reorganization of DHHR, along with new initiatives and leadership, will lead to better outcomes for the health and welfare of the state’s most vulnerable residents.

“I’m just excited that we’re on a new path, we are going to come up with some solutions,” Summers said. “We feel that the DHHR division is really going to give us more insight and direction into those departments. I’m just excited about everything that’s happened this session and we’re going to continue to work hard. It’s just the first step. We’re going to continue to work hard to evaluate all of those different issues that we have during the interims that are coming up.”

House Minority Leader Doug Skaff, D-Kanawha, said while tax cuts and pay raises were welcomed by working West Virginians, he and others from both parties have grave concerns over slighting the crisis in state corrections – a 33 percent employee vacancy rate and more than $40 million spent on stop-gap National Guard jail and prison support.

“I wish we would have put more focus on public education and more focus on getting a cost of living adjusted for our retirees, and the one thing that we didn’t do is our costs in our jail system or in the corrections are just continuing to be a mess,” Skaff said. “You’ve got to focus on not kicking the can down the road with record surpluses. You can still do more until there’s no vacancies out there. I say, let’s keep working harder, we gotta fill all those public employee positions that are out there because they take care of our people of West Virginia. I’m glad we’re finally, after years, giving some of the money back to the West Virginians, and I’m okay with that. But I just think we need to get our house in order first before you give out the rest of the money.”

House Technology and Infrastructure Committee Chair, Del. Daniel Linville, R-Cabell, said he was disappointed in a lack of progressive legislation passed from his committee.

“There’s several pieces of cutting red tape or several pieces of legislation that did that in regards to infrastructure development,” he said. “There’s also been some bills relative to broadband that just didn’t make it across the finish line. It’s always a struggle, but we want to make our state the fastest place to deploy all infrastructure, especially in this inflationary environment.”

Nearly every delegate WVPB spoke with said much of the legislation passed was just a first step. Now, we will see in what direction those steps may head.

House Lifts Certificate Of Need, Extends Corrections Staffing Emergency

The House passed House Concurrent Resolution 78, indefinitely extending Gov. Jim Justice’s state of emergency over correction facilities staffing levels. The concerns continue to focus on safety, security and maintaining National Guard support.

On Thursday, the House of Delegates lifted the requirement that medical facilities must show a service is needed and extended a State of Emergency for the state’s corrections system.

House Bill 613 passed with a 75-20 vote. The bill lifts certificate of need requirements for birthing centers and medical facilities on a hospital campus and allows facilities other than hospitals to perform MRI’s. Previously, medical facilities had to get state approval before offering new services.

Del. Mike Pushkin, D-Kanawha, opposed the bill, concerned the measure would hurt more people than it helped.

“When you allow these private practices to offer these types of procedures that are really what they can bill a whole lot more with, the hospitals also will bill a whole lot more,” Pushkin said. “When they can cherry pick, and they can say, well, we’re not going to take PEIA, we’re not going to take Medicaid, we’re not going to take Medicare, we’re only gonna take private payers. The hospitals, they have to take everybody and rightfully so. Then you can run into a dangerous situation, and who will it hurt? The people who need the services because they can’t afford it.”

Del. Heather Tully, R-Nicholas, supported the bill. She said it would help her constituents with enhanced medical options.

“I live in Summersville. As you all well know, it’s about an hour commute either to Beckley, an hour and a half to Charleston, an hour and a half to Clarksburg or some of our patients even go to Elkins to get obstetrical care,” Tully said. “My hospital in my community also is interested in expanding some cancer treatment services and so that would also eliminate the travel times for patients in my area that may need cancer treatment services if those are to be implemented.

HB 613 is effective from passage and now goes to the governor for his signature.

Del. David Kelly, R-Tyler, chair of the House Jails and Prisons Committee, spoke of the continued dangerously low corrections employment rate.

“We expect to spend anywhere from $17 to $20 million this year, just to cover the cost of our National Guard. Additionally, we’re looking at $22-plus million dollars last year in overtime. And we can only expect that that number will increase this year, because we’re losing our officers almost on a daily basis,” Kelly said. “Our officers are saying I can’t do this anymore. And so I just want to share just a few things with you, if I may. As of March 2, we have 1,042 overall vacancies in DCR, that’s 27 percent. Now when we narrow that down, what we’ve got are 751 officer vacancies. That’s unconscionable. That’s 33 percent vacancies in our jails and prisons.”

The House also completed legislation on House Bill 2002, providing support for families by increasing an adoption tax credit, establishing the eligibility of adopted children of West Virginia residents for early intervention services and creating the West Virginia Mothers and Babies Pregnancy Support Program.

And they passed Senate Bill 273, which allocates child protective service workers in counties according to a county’s average caseload and population based on the 2020 Census.

The bill requires the Department of Human Services to report those changes to the legislature and have a backup system in the event of a centralized intake outage. The bill also orders the development of a merit-based system for specified employees.

Both HB 2002 and SB 273 now go to the governor for his signature.

Senate Bill Works To Stabilize Jail Funding

The legislature has grappled with the issue of jail funding for the past few years. Senate Bill 596 aims to modify the payment for housing and maintenance of inmates in the state’s correctional system.

The West Virginia Senate took up a bill Tuesday that would change how, and how much, counties pay for inmates they send to the state’s correctional system.

The legislature has grappled with the issue of jail funding for the past few years. Senate Bill 596 aims to modify the payment for housing and maintenance of inmates.

The amount counties and municipalities pay for every day of incarceration has been capped at $48.25 per inmate since 2018, but the State Budget Office stated earlier this year the per diem rate will increase to $54.48 in July.

The bill’s lead sponsor, Sen. Jason Barrett, R-Berkeley, said SB596 will establish a pro-rata system to help counties pay the increased cost.

“We were able to figure out each county’s allotment of jailed nights, and then we were able to create a formula based on that pro rata share that each county will receive,” he said. “The first 80 percent of the nights that happened in the county would be billed at a 20 percent discount rate. From 80 percent to 100 percent, would be billed at the 100 percent of the current rate, and then if the county goes over their allotment of nights, there will be a 20 percent penalty for those nights.”

The rates for each county will be calculated by the commissioner of Corrections and Rehabilitation using census data and reviewed every 10 years. Barrett said through the 20 percent penalty, the bill would encourage counties to not only reduce their jail bill, but also develop alternative programs to help West Virginians.

“This way, we’re able to reduce the jail bills for counties, and also incentivize them to have really good day report centers, recovery resource centers, and utilize home confinement officers,” Barrett said. “We are incentivizing counties to not only reduce their jail bill, but to help people of West Virginia. If counties refuse to participate in those things, and they don’t make an effort to reduce their jail bill, in the amount of nights that folks are in jail in their county, then there will be a monetary penalty for that.”

The Division of Corrections and Rehabilitation, which has budgetary issues including a deferred maintenance cost of $200 million, has previously stated that the artificially low per diem payments do not cover the actual cost of incarceration.

In presenting the bill on the Senate floor, Chair of the Senate Finance Committee, Sen. Eric Tarr, R-Putnam, highlighted a provision in the bill that would put county commissioners personally on the hook for unpaid jail bills.

“It would codify the common and case law principle that public officials may be held personally liable for clearly delineated constitutional and statutory duties,” Tarr said. “This section of code clearly provides that counties bear the responsibility for paying for inmate housing and care. When a county fails to pay for inmate housing, this bill would codify that liability on both an official level and the personal level.”

The bill passed 22 to 11, with one senator absent, and now heads to the House of Delegates for consideration.

Legislators Hear About Corrections Cost Increase And Possible Solutions

The cost of keeping inmates in regional jails in the state may go up, and counties and municipalities are concerned.

At a meeting of the Legislative Oversight Committee on Regional Jail and Correctional Facility Authority Tuesday evening, members heard results from a working group of statewide stakeholders about the daily rate for inmates.

The amount counties and municipalities pay has been capped at $48.25 per inmate since 2018, but is set to expire in July.

Committee staff counsel William Valentino said that amount falls short of actual cost to run the jails

“From my experience, working for corrections, they have to make up that money somewhere,” he said. “What I’m being told is that they are running out of revenue sources to make up the money that they are losing by the actual costs of per diem versus the $48.25.”

Valentino said the State Budget Office has already stated the per diem rate will increase to $54 in July, unless the legislature takes action in their upcoming session.

The working group of various officials from across the state met from May through September to discuss the per diem increase. The group included representatives from the governor’s office, the Supreme Court, the municipal league, mayors, sheriffs, attorneys and county commissioners.

“The things that we heard from the group over and over again, the common themes for what what was driving the pretrial detention, what was driving the increase in per diems, were either substance use disorders, mental health disorders, or essentially some co-occurring disorders of substance use and mental health,” Valentino said.

He said 80 percent of pretrial detainees, who make up the core of the regional jail system’s population, are arrested as a result of substance use or mental health disorder.

“It’s important for this committee to remember that the jails are not mental health facilities,” Valentino said.

He also highlighted the overcrowding in the state’s jail systems. He said the system in total is designed to hold 4,265 inmates but was currently housing 4,858 inmates, down from a high of 5,177 earlier in the year. Valentino said on average, pretrial detainees spend 271 days in regional jails.

The working group discussed and came up with many potential solutions, including cost sharing agreements between law enforcement organizations, reporting centers to replace expensive bonds in appropriate cases, and reducing pretrial delays by shifting juvenile abuse hearings to family court.