BREAKING: West Virginia Legislature Rejects Bail Reform Legislation in 2019 Session As The Gavel Comes Down

BREAKING:  West Virginia Legislature Rejects Bail Reform Legislation in 2019 Session As The Gavel Comes Down

Charleston, WV – Legislators from the Mountain State rejected calls for bail reform and sent to pasture House Bill 2190: Modifying Bail Requirements as the session came to a close for 2019.

H.B. 2190, which was supported by the ACLU, died on the calendar March 9, 2019.

The bill, while well intended, simply forced the hand of West Virginia judges to release a wide range of offenders on their own recognizance, a discretion judges already have and use often.  Removing judicial discretion is an insult to the judiciary, who are tasked with maintaining the rule of law and protecting public safety.

The sponsors of H.B. 2190 attempted to convince their colleagues that criminal defendants are solely in jail because they can’t afford their bail.  At best, this is a misunderstanding of the function and intent of bail.  These statements were and are made without evidence – not only in West Virginia but across many states considering similar reforms.

Bail is typically a third-party provided benefit that most often does not depend on the resources of the defendant.  It is more akin to a test of your ties to the community, and whether the community believes in you to comply with release conditions.  In addition, many defendants are negotiating plea deals involving time served, and that calculation is never backed out of the equation, even though it is a significant amount of jail time that would otherwise be served and perhaps for longer durations.

Further, many defendants suffer from alcohol abuse, substance abuse, addiction issues, mental health issues, and co-occurring disorders that the criminal justice system is not addressing.  Families and friends of defendants often choose not to post their bail due lack of alternatives for defendant’s suffering from these issues.  In addition, there are many other reasons that defendants are held in jail that make up the vast majority of reasons people are in jail in the first place.

Certainly, there are some for whom bail will not be posted.  But there is no right to “pretrial release” in America—there is instead a right to reasonable bail, a bail that is not excessive under the settled law on this continent for over 400 years.  The right to bail doesn’t guarantee release, and judges get motions for bail reductions all the time, and they decide these cases based on the facts and circumstances of each case – not with a broad brush as this legislation would have mandated.

We think maintaining accountability is in the best interest of West Virginia and exploring more reasonable options to improve the criminal justice system is a better idea.  The 2020 West Virginia legislature should instead focus on alternatives, such as;

  1. Due process. Defendants should be given a bail review by a judge within 48 hours of arrest should they not post bail.
  2. Nuisance Bail: If a bail bond is under $500 and the finding of guilt results in no jail time, the jailing of these individuals seems excessive considering the circumstances.
  3. Uniform Bail Schedules: Bail schedules act only as a guide for judges in the setting of bail.  In addition, uniformity of these schedules allow for defendants to act quickly in securing their release and therefore slow down the jail turnstile as a result.  Review of schedules should occur periodically by the judiciary, along with other stakeholders.

Making large wholesale changes to the criminal justice system without adequate research and consideration from all stakeholders can have consequences that are very difficult to unwind.  In states like Alaska and New Hampshire, where similar reforms have passed, law enforcement and even the Governor are having buyer’s remorse mere months into similar policy changes because of repeat offenders being released over and over with no oversight.

Fortunately, West Virginia legislators denied H.B. 2190, instead giving priority to judicial discretion and public safety first.

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