West Virginia Bail Reform Moves Forward While Other States Go the Other Direction

New York bail reform is the laughing-stock of the nation.  That much you probably already knew.  When you can rob six banks in sixteen days and get a free release, that just doesn’t make sense.  When a defendant can get a release on his own recognizance on his 142^nd arrest, that doesn’t make sense either.  What you don’t know is that pending legislation in West Virginia (House Bill 2419) creates a version of these New York style reforms.

Other states are taking notice to these dangerous reforms, yet West Virginia is moving forward to create a presumption of release on own recognizance for a large variety of misdemeanor crimes by virtue of the passage of H.B. 2419.  Three states in particular are comparable to this legislation and worthy of consideration:

• In New Hampshire, Governor Sununu said you would have to be crazy not to realize that misdemeanor bail reform didn’t work.
• In Alaska, the state repealed their misdemeanor bail reform because of public outcry and explosion in pretrial crime.
• In Missouri, the legislature is poised to repeal court rules that created a presumption of release on own recognizance without having to post bail, which in one county increased failure to appears in court by 30%.

Despite these warnings from other states, apparently bail reform in West Virginia is somehow a good idea despite being a bad idea elsewhere.

Proponents of the legislation will say it does not limit judicial discretion—judges can still do bail.  Which begs the question, why do we need this bill?  But, as Missouri Representative Justin Hill pointed out in a letter to the Utah legislature this week which seeks to insert a similar presumption, what appears in the statute is not the entire story of what is going to happen.  He indicated that there is a top-down culture of embarrassing judges who impose bail, and even where the statute appears to allow for discretion, the results are not what we expected.

West Virginia is now poised to go down this same road with H.B. 2419.  On the one hand, a judge can invoke the exception and impose bail.  On the other hand, if the exception swallows the rule, we might ask, why have the rule?  The reason, to put it simply, is that the intent of the legislation is to let more defendants out for free rather than hold them accountable and second-guess prosecutors and judges.

Judges already have the power to release defendants they believe should get a release on their own recognizance in West Virginia, so there is no need for a presumption that restricts the discretion of judges.  The only possible outcome of this legislation is negative—to restrict judicial discretion and force judges to release more people that they otherwise would not agree to release on their own recognizance.

As we have seen in other states, this is a recipe for disaster.  This legislation can only serve to decrease accountability and increase crime in West Virginia.

The Mountain state deserves better.