By Philip . . . Regular Session of the WV 2024 Legislative Cycle has Ended

The 2024 regular legislative session ended on Saturday, 9 March. Overall, it was a good, not great, session. No significant additions, restrictions, etc., passed; however, none were improved or abated. Here is a macro summary:

• House
  • 0 of 8 bills we opposed passed.
  • 0 of  2 bills we were for also did not pass.
  • 0 of 1 bill we conditionally supported, HB5502, which needed serious revisions to obtain full support, did not pass.
• Senate
  • 1 of 2 bills we opposed, SB159, passed.
  • 2 of 4 bills we were neutral on SB190, and SB504 passed.
  • 0 of 1 bill we were for SB199 also did not pass.

On the WVRSOL.org Bills We are Watching page, you can see the results of all the relevant registry bills that we watched, tracked, and provided written testimony on in this session.

UPDATE – 2/27/2024 By Philip… the HB5345 amendment, which brought in all of Delegate Young’s HB5502 registry revisions, was withdrawn, and the original committee substitute bill, which updates and strengthens WV §15-12 by clearly codifying how those citizens required to register who have no permanent residence can satisfy their legal obligation passed and was sent to the Senate where it was subsequently moved to the Senate Judiciary Committee.

By Philip . . . HB5345 was amended on the House floor to Include HB5502 elements bypassing House Judiciary Committee consideration.

On Friday, 23 February, Delegate Young convinced Delegate Chiarelli to accept a friendly amendment to his HB5345 [updating the registry code to provide a definitive method for non-housed registrants to stay in compliance], which brought in all of Delegate Young’s HB5502 registry revisions including the most egregious provision the introduction of a residency exclusion restriction of 2,500 feet of any public or private school or child daycare facility. In doing so, Delegate Young completely bypassed the Judiciary Committee, where HB5502 currently is, was not given any attention, and missed the ‘bills due out of committee’ deadline today.

Delegate Chiarelli’s acceptance of this friendly amendment without moving for HB5345 to be referred back to the Judiciary Committee sets up HB5345 for its 3rd reading [Right to Amend]on  Monday, 2/26, during the House floor session starting at 10:00 AM.

• You can watch (or listen) to the House session here: https://www.wvlegislature.gov/live.cfm

Since the floor amendment was accepted without objection, HB5345, as amended, is expected to pass via a House vote and be referred to the Senate.

CALL TO ACTION — WHAT TO DO NOW

Contact your individual delegate and REQUEST/DEMAND the following:

• Amendments to HB5345
  1. HB5345 be amended on its 3rd reading to strike §15-12-10(b) as outlined below:
     • (b) Effective January 1, 2026, during the duration of the registration period, no registrant may reside within 2,500 feet of any public or private school or child daycare facility. Any registrant that is found to be residing within 2,500 feet of a public or private school or child daycare facility shall be subject to the penalty provided pursuant to §15-12-8 (d) of this code.
  2. HB5345 be amended on its 3rd reading to change the three business days update back, restoring the ten business day requirement for updates in §15-12-3(a).
     • changing the current proposal of “… within ten three business days, …” back to “… within ten three ten business days, …”
• An outright NO vote on HB5345. If a non-starter, then a NO vote if the above amendments are not introduced and accepted.

Arguments you may use to support the requested amendments:

• On requested amendment 1. above:
  • Residency restrictions are NOT supported by the “Adam Walsh Child Protection and Safety Act of 2006” (Sensenbrenner, 2006) nor a recognized shortfall to substantial compliance according to the U.S. Department of Justice SMART Office’s SORNA Substantial Implementation Review State of West Virginia (SORNA Substantial Implementation Review State of West Virginia, 2016).
    1. There is also no empirical evidence that the presence or distance restrictions make anyone safer. In fact, they do the opposite.
       1. In its decision, the Sixth Circuit Court of Appeals not only agreed but went on to declare that adding geographic exclusionary zones, among others, made Michigan’s SORNA, post its 2006 and 2011 amendments, punishment and therefore could not be applied retroactively (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
       2. Moreover, the Sixth Circuit Court of Appeals said that geographic exclusionary zones and in-person reporting requirements are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety. (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
       3. Additionally, Human Services professionals and nationally recognized experts on sexual abuse and sex offender legislation agree that distance restrictions are counterproductive. According to Gina Puls (Puls, 2016), residency restrictions, which prevent sex offenders from living within an established distance of various places where children gather, have created enormous hardship for released sex offenders as they attempt to reintegrate into society, and the effectiveness of these laws has increasingly been rejected.
    2. Establishing presence or distance restrictions expands the use and impact of registry law in West Virginia. It invites litigation if passed as it transitions the WV registry from a “civil regulatory schema” into a “criminal punishment schema,” which violates the Ex post facto clauses of the West Virginia and US Constitutions.
       1. Article III, Section 4 of the West Virginia Constitution prohibits “No bill of attainder, ex post facto law, or law impairing the obligation of a contract, shall be passed.” (West Virginia Constitution, n.d.) There is little doubt that this bill could be anything other than a retroactive increase in punishment, ex post facto, because it seeks to place retroactive restrictions and punishment on registrants who have completed their court-ordered sentences.
       2. WV §15-12-2 (a) makes the WV registry retroactively and prospectively adding a presence or distance restriction to the code, coupled with the above clause, would make the presence or distance restriction retroactive, and, as already established above would therefore transition the WV registry schema from a “civil regulatory schema” into a “criminal punishment schema,” which violates the Ex post facto clauses of the West Virginia and US Constitutions.
          • Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him. (Hensler v. Cross – West Virginia – Case Law – VLEX 895334483, n.d.)
       3. Other jurisdictions have attempted to impose similar restrictions, only to have them stricken on constitutional grounds – most recently in Does v. Snyder, where the Sixth Circuit Court of Appeals determined Michigan’s SORNA to be punishment and may not be applied retroactively. (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
• On requested amendment 2. above:
  • Changing the current registry update requirement from within 10 business days to within 3 business days does not make West Virginia NOT substantially compliant (SORNA Substantial Implementation Review State of West Virginia, 2016); however, it will cause many more technical registry violations, requiring judicial resources to process, in prison, and supervise post-release; and significant associated unnecessary costs.

WVRSOL wishes this was better news; however, “it ain’t over until the fat lady sings” is apropos here — EMAIL YOUR DELEGATE TODAY (call in the morning as well if possible)!!

Works Cited

Does v. Snyder. No. 15-1536. United States Court of Appeals for the Sixth Circuit. August 25, 2016. https://casetext.com/case/doe-v-snyder-2

Hensler v. Cross—West Virginia—Case Law—VLEX 895334483. (n.d.). Retrieved February 11, 2024, from https://case-law.vlex.com/vid/hensler-v-cross-no-895334483

Puls, G. (2016). No Place to Call Home: Rethinking Residency Restrictions for Sex Offenders. Boston College Journal of Law and Social Justice, 36, 319.

Sensenbrenner, F. J. (2006, July 27). H.R.4472 – 109th Congress (2005-2006): Adam Walsh Child Protection and Safety Act of 2006 (2005-12-08) [Legislation]. https://www.congress.gov/bill/109th-congress/house-bill/4472

SORNA Substantial Implementation Review State of West Virginia (p. 13). (2016). U.S. Department of Justice – SMART Office. https://smart.ojp.gov/sites/g/files/xyckuh231/files/media/document/westvirginia-hny.pdf

West Virginia Constitution. (n.d.). Retrieved February 10, 2024, from https://www.wvlegislature.gov/wvcode/wv_con.cfm?lv=true#articleIII

Click here for a PDF of the house floor amended HB5345: HB5345 (vHF-amended)_2-23-24

By Philip . . . WVRSOL has provided written testimony in conditional support to HB-5502 5356 Relating to the sex offender registration act.

CONDITIONAL SUPPORT Response to HB 5502

Relating to the sex offender registration act

February 20, 2024

House Judiciary Committee:

West Virginians for Rational Sexual Offence Laws (WVRSOL) is a West Virginia non-profit association and an affiliate of the National Association for Rational Sexual Offence Laws (NARSOL), which advocates for society’s segment that is adversely affected by the sex offender registry. We help families impacted by the registry, seek ways to maintain and improve public safety, recommend prudent use of state funding in this area, and work to ensure that proposed legislation is constitutional.

WVRSOL conditionally supports HB 5502 because it aligns the West Virginia registry more closely with the “Adam Walsh Child Protection and Safety Act of 2006” (SORNA Substantial Implementation Review State of West Virginia, 2016).

Full support is conditioned on the following necessary changes to HB 5502:

1. Removal of the residency restriction, which is NOT supported by the “Adam Walsh Child Protection and Safety Act of 2006″ (Sensenbrenner, 2006) nor the U.S. Department of Justice SMART Office’s SORNA Substantial Implementation Review State of West Virginia. (SORNA Substantial Implementation Review State of West Virginia, 2016) To include such a provision would almost certainly lead to costly litigation, which has been decided unfavorably throughout the United States.
2. Removal of all references to the collection of DNA samples for registrants under a civil regulatory schema for registering only not related to a criminal conviction in WV.
3. Reclassification of certain offenses, which are currently classified as lifetime (aka AWA’ Tier III‘) but which, according to the the “Adam Walsh Child Protection and Safety Act of 2006″ (Sensenbrenner, 2006) should all be 25 years (aka AWA’ Tier II‘). This approach will permit the limited law enforcement resources to be directed at the more severe offenses.
4. Addition of the 5-year “Clean Record” credit outlined in §115 of the “Adam Walsh Child Protection and Safety Act of 2006.” (Sensenbrenner, 2006) This approach is consistent with federal law and will remove the less severe offenses from the list.
5. Update by striking the updating to registry change reporting requirements from “within 10 business days” to “within 3 business days,” which does not make West Virginia NOT substantially compliant. (SORNA Substantial Implementation Review State of West Virginia, 2016)
6. Update to §15-12-2 (d) to make the current requirement for the person forced to register of “…provide or cooperate in providing at a minimum…” more understandable, similar to the “Adam Walsh Child Protection and Safety Act of 2006” §114. (Sensenbrenner, 2006)
7. Addition of exemptions from public display/access on the WV Registry of (a) 15 years (aka AWA “Tier1”) category registrants and (b) ‘juvenile sex offenders’ who had not attained the age of 18 years at the time of their offense. Having 15 years (aka AWA “Tier1”), low-risk registrants on the public registry does not enhance public safety, nor does having ‘juvenile sex offenders’ visible/accessible on the public registry, as well as the moral implications it raises.
8. Updates to several highlighted items in the bill make it void for vagueness and require clarification, etc.

1. Support is conditioned on removing the residency restriction, which is NOT supported by the “Adam Walsh Child Protection and Safety Act of 2006” (Sensenbrenner, 2006) nor a recognized shortfall to substantial compliance according to the U.S. Department of Justice SMART Office’s SORNA Substantial Implementation Review State of West Virginia (SORNA Substantial Implementation Review State of West Virginia, 2016).
   1. There is also no empirical evidence that the presence or distance restrictions make anyone safer. In fact, they do the opposite.
      1. In its decision, the Sixth Circuit Court of Appeals not only agreed but went on to declare that adding geographic exclusionary zones, among others, made Michigan’s SORNA, post its 2006 and 2011 amendments, punishment and therefore could not be applied retroactively (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
      2. Moreover, the Sixth Circuit Court of Appeals said that geographic exclusionary zones and in-person reporting requirements are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety. (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
      3. Additionally, Human Services professionals and nationally recognized experts on sexual abuse and sex offender legislation agree that distance restrictions are counterproductive. According to Gina Puls (Puls, 2016), residency restrictions, which prevent sex offenders from living within an established distance of various places where children gather, have created enormous hardship for released sex offenders as they attempt to reintegrate into society, and the effectiveness of these laws has increasingly been rejected.
   2. Establishing presence or distance restrictions expands the use and impact of registry law in West Virginia. It invites litigation if passed as it transitions the WV registry from a “civil regulatory schema” into a “criminal punishment schema,” which violates the Ex post facto clauses of the West Virginia and US Constitutions.
      1. Article III, Section 4 of the West Virginia Constitution prohibits “No bill of attainder, ex post facto law, or law impairing the obligation of a contract, shall be passed.” (West Virginia Constitution, n.d.) There is little doubt that this bill could be anything other than a retroactive increase in punishment, ex post facto, because it seeks to place retroactive restrictions and punishment on registrants who have completed their court-ordered sentences.
      2. WV §15-12-2 (a) makes the WV registry retroactively and prospectively adding a presence or distance restriction to the code, coupled with the above clause, would make the presence or distance restriction retroactive, and, as already established above would therefore transition the WV registry schema from a “civil regulatory schema” into a “criminal punishment schema,” which violates the Ex post facto clauses of the West Virginia and US Constitutions.

      3. Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him. (Hensler v. Cross – West Virginia – Case Law – VLEX 895334483, n.d.)

      4. Other jurisdictions have attempted to impose similar restrictions, only to have them stricken on constitutional grounds – most recently in Does v. Snyder, where the Sixth Circuit Court of Appeals determined Michigan’s SORNA to be punishment and may not be applied retroactively. (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
2. Support is conditioned on removing all references to DNA sampling from registrants.
   1. Adding DNA sampling to §15-12-2 is unnecessary as WV code §15-2B-6 already codifies the collection of DNA samples upon conviction for registry offenses in West Virginia and those with equivalent offenses accepted from another state under any interstate compact or other reciprocal agreements.
   2. Including DNA sampling to §15-12-2 would only impact people moving untethered to West Virginia who must register, i.e., not via a supervised interstate compact agreement or similar agreements—for these people, being forced to provide a DNA sample simply for registering invites litigation if passed as it transitions the WV registry from a “civil regulatory schema” into a “criminal punishment schema,” which violates the Ex post facto clauses of the West Virginia and US Constitutions.
      1. Article III, Section 4 of the West Virginia Constitution prohibits “No bill of attainder, ex post facto law, or law impairing the obligation of a contract, shall be passed.” (West Virginia Constitution, n.d.) There is little doubt that this bill could be anything other than a retroactive increase in punishment, ex post facto, because it seeks to place retroactive restrictions and punishment on registrants who have completed their court-ordered sentences.
      2. WV §15-12-2 (a) makes the WV registry retroactively and prospectively adding a presence or distance restriction to the code, coupled with the above clause, would make the presence or distance restriction retroactive, and, as already established above would therefore transition the WV registry schema from a “civil regulatory schema” into a “criminal punishment schema,” which violates the Ex post facto clauses of the West Virginia and US Constitutions.

      3. Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him. (Hensler v. Cross – West Virginia – Case Law – VLEX 895334483, n.d.)

3. Support is conditioned on reclassifying the following offenses, which are classified as lifetime (aka AWA’ Tier III‘) but which, according to the the “Adam Walsh Child Protection and Safety Act of 2006″ (Sensenbrenner, 2006), should all be 25 years (aka AWA’ Tier II‘):
   1. 61-8A-1 et seq, §61-8B-9, §61-8B-11b, §61-8C-1 et seq, §61-8D-5, §61-8D-6, §61-8-12, §61-14-5(b), and §61-14-6(b) when the offense is NOT against a minor who has NOT attained the age of 12 years – these offenses should all be 25 years (aka AWA’ Tier II‘) category when not committed against anyone not a minor who has NOT attained the age of 12.
   2. 61-3C-14b and §61-14-6(a) – these offenses should all be 25 years (aka AWA’ Tier II‘) category regardless.
   3. Additionally, §61-8-A-9 (1^st and 2^nd offenses) and §61-8c-3a should be specifically called out as 15 years (aka AWA’ Tier I‘). Language needs to be added that specifies that all offenses where the sentencing judge made a written finding that the offense was sexually motivated and where the sentence is classified as a misdemeanor should be registerable as 15 years (aka AWA’ Tier I‘).
4. Support is conditioned on the addition of the 5-year “Clean Record” credit outlined in §115 of the “Adam Walsh Child Protection and Safety Act of 2006”
   1. The “Adam Walsh Child Protection and Safety Act of 2006” provides a 5-year “clean record” reduction in registry requirements for Tier 1 (aka WV 15-year registrants) (Sensenbrenner, 2006) and needs to be added to HB 5502 and ultimately WV §15-12-2. This credit provision must be coded as automatic upon review without the registrant’s request or court proceedings.
   2. The “Adam Walsh Child Protection and Safety Act of 2006” provides a tier reduction for a “clean record” for Tier III (aka WV lifetime registrants) to Tier II (aka WV 25-year registration (Sensenbrenner, 2006) and needs to be added to HB 5502 and ultimately WV §15-12-2. This credit provision must be coded as automatic upon review without the registrant’s request or court proceedings.
5. Support is conditioned on striking the updating to registry change reporting requirements from “within 10 business days” to “within 3 business days.”
   1. Changing the current registry update requirement from within 10 business days to within 3 business days does not make West Virginia NOT substantially compliant (SORNA Substantial Implementation Review State of West Virginia, 2016); however, it will cause many more technical registry violations, requiring judicial resources to process, in prison, and supervise post-release; and significant associated unnecessary costs.
6. Support is conditioned on updating §15-12-2 (d) to delineate registrant vs State registry items.
   1. The current language in §15-12-2 (d) requires the person forced to register to “provide or cooperate in providing” items they do not know of nor have control over. The language must be updated to make it more understandable by delineating between registrant and State responsibilities similar to the “Adam Walsh Child Protection and Safety Act of 2006” (Sensenbrenner, 2006) §114.
   2. 15-12-2 (d) should be updated to delineate registry requirements that must be provided by the registrant and those that are the purview and must be provided by the State, similar to how the “Adam Walsh Child Protection and Safety Act of 2006” (Sensenbrenner, 2006) §114 delineates it.
   3. As it stands today, registrants are expected to “provide or cooperate in providing” items not under their purview for which they have no means of providing, e.g.,
      1. Date of all arrests;
      2. Date of all convictions;
      3. Status of parole, probation, or supervised release; and
      4. Outstanding arrest warrants, etc.
7. Support is conditioned on the addition of exemptions from public display/access on the WV Registry of (a) 15 years (aka AWA “Tier1”) category registrants and (b) juvenile registrants.
   1. The “Adam Walsh Child Protection and Safety Act of 2006” provides for optional exemptions of:
      1. “Any information about a tier I sex offender convicted of an offense other than a specified offense against a minor,” and
      2. “Any other information exempted from disclosure by the Attorney General.”(Sensenbrenner, 2006)
   2. HB5502 needs to add specific language using the optional exemptions above:
      1. To provide WV registrants classified as 15 years (aka AWA “Tier1”) exemption from display/access on the WV public registry and
      2. To provide WV juvenile registrants, those who had not attained the age of 18 years at the time of their offense, exemption from display/access on the WV public registry.
8. Support is conditioned on the updates to several highlighted items in the bill, which make it void for vagueness, require clarification, etc.
   1. The proposed updates to West Virginia Registry §15-12-2. (d)(8) removes the requirement to provide “screen names, user names, or aliases the registrant uses on the internet” and adds the requirement to provide the “Internet Protocol (IP) addresses of any computer or electronic device of the registrant.”
      1. First, screen names, user names, aliases, and IP addresses are not included in the “Adam Walsh Child Protection and Safety Act of 2006” schema; as such, if the bill’s purpose is to be taken seriously, then §15-12-2. (d)(8) should be struck. In addition, recent federal case law has concluded that collecting internet identifiers from registrants violates the First Amendment. (Cornelio v. Connecticut, 2023)
      2. Second, the above requirement to provide IP addresses is not feasible as the standard for IP addresses is that they are dynamic, NOT static (Network Fundamentals – Internet Protocol and IP Addressing | Information Security | University of Houston-Clear Lake, n.d.), and constantly change with the location the device connects to the internet, i.e., coffee shop, work, home, etc. consequently providing an IP address, which changes constantly and frequently, is nonsensical.
      3. In addition to 1. a. & 1. b. above, the proposed update and addition of WV §15-12-2-10 (b) include a distance restriction from a “child daycare facility,” which is insufficiently defined. It would be difficult for registrants to know with certainty how to comply with this language when what constitutes a “daycare” isn’t explicitly defined. As written, the clause would not likely survive a “void for vagueness” challenge.
         1. The “void-for-vagueness doctrine” requires a statute to be clear enough for those subject to it to understand what conduct would render them liable to its penalties. (Void for Vagueness and the Due Process Clause, n.d.) The standard for determining whether a statute provides fair notice is “whether persons of common intelligence must necessarily guess at [the statute’s] meaning.” (Galloway v. State, 781 A.2d 851, 2001)

WVRSOL supports legislation that actually reduces abuse and sexual offenses, helps children and families, and improves public safety. HB 5502 does this; unfortunately, it needs the modifications stipulated before WVRSOL can support it. Therefore, we conditionally support HB 5502 and respectfully urge the House, its members, and the House Judiciary Committee to make the necessary modifications and pass HB 5502.

Works Cited

Cornelio v. Connecticut, No. 3:19-CV-1240 (JAM), 2023 WL 5979996 (D. Conn. Sept. 14, 2023). https://casetext.com/case/cornelio-v-connecticut-3

Does v. Snyder. No. 15-1536. United States Court of Appeals for the Sixth Circuit. August 25, 2016.

https://casetext.com/case/doe-v-snyder-2

Galloway v. State, 781 A.2d 851 (Court of Appeals of Maryland 2001), 365 Md. 599. https://www.courtlistener.com/opinion/1494306/galloway-v-state/

Network Fundamentals—Internet Protocol and IP Addressing | Information Security | University of Houston-Clear Lake. (n.d.). Retrieved February 11, 2024, from https://www.uhcl.edu/information-security/tips-best-practices/ipaddressing

Puls, G. (2016). No Place to Call Home: Rethinking Residency Restrictions for Sex Offenders. Boston College Journal of Law and Social Justice, 36, 319.

Sensenbrenner, F. J. (2006, July 27). H.R.4472 – 109th Congress (2005-2006): Adam Walsh Child Protection and Safety Act of 2006 (2005-12-08) [Legislation]. https://www.congress.gov/bill/109th-congress/house-bill/4472

SORNA Substantial Implementation Review State of West Virginia (p. 13). (2016). U.S. Department of Justice – SMART Office. https://smart.ojp.gov/sites/g/files/xyckuh231/files/media/document/westvirginia-hny.pdf

Void for Vagueness and the Due Process Clause: Doctrine and Practice. (n.d.). LII / Legal Information Institute. Retrieved February 11, 2024, from https://www.law.cornell.edu/constitution-conan/amendment-5/void-for-vagueness-and-the-due-process-clause-doctrine-and-practice

West Virginia Constitution. (n.d.). Retrieved February 10, 2024, from https://www.wvlegislature.gov/wvcode/wv_con.cfm?lv=true#articleIII

Click here for a PDF of the WVRSOL opposition letter: HB-5502_2024

By Philip . . . WVRSOL has provided written testimony in opposition to HB- 5356 Prohibiting registered sex offenders from utilizing school-based health centers.

OPPOSITION Response to HB 5356

Prohibiting registered sex offenders from utilizing school-based health centers

February 10, 2024

House Judiciary Committee:

West Virginians for Rational Sexual Offence Laws (WVRSOL) is a West Virginia non-profit association and an affiliate of the National Association for Rational Sexual Offence Laws (NARSOL), which advocates for society’s segment that is adversely affected by the sex offender registry. We help families impacted by the registry, seek ways to maintain and improve public safety, recommend prudent use of state funding in this area, and work to ensure that proposed legislation is constitutional.

WVRSOL opposes HB 5356 because (1) its intent is based on outdated (2003), erroneous, and refuted preposterous data; (2) it invites litigation by creating a presence/distance restriction, which has been previously found unconstitutional; (3) and solves a problem that doesn’t exist through panic legislation.

HB 5356 – prohibiting registered sex offenders from utilizing school-based health centers

1. The new code proposed as §61-8G-1-5 adds a prohibition on registered sex offenders from school-based health centers and establishes a new presence/distance restriction of the same.

Opposed to: legislation based on outdated (2003), erroneous, and refuted data

1. The record of empirical evidence that has been put forth since the 2003 SCOTUS decision, which said that “Sex offenders are a serious threat in this Nation.” (McKune v. Lile :: 536 U.S. 24 (2002) :: Justia US Supreme Court Center, n.d.) and that “[T]he victims of sex assault are most often juveniles,” and “[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault” (McKune v. Lile | Case Brief for Law Students | Casebriefs, n.d.) is long and refuting.
2. Taking the Sixth Circuit Court of Appeals decision in Does v. Snyder as a prime example, we see:

Intuitive as some may find this, the record before us provides scant support for the proposition that SORA, in fact, accomplishes its professed goals. The record below gives a thorough accounting of the significant doubt cast by recent empirical studies on the pronouncement in Smith that “[t]he risk of recidivism posed by sex offenders is ‘frightening and high.'” 538 U.S. at 103, 123 S.Ct. 1140 (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002)). One study suggests that sex offenders (a category that includes a great diversity of criminals, not just pedophiles) are actually less likely to recidivate than other sorts of criminals. See Lawrence A. Greenfield, Recidivism of Sex Offenders Released from Prison in 1994 (2003). Even more troubling is evidence in the record supporting a finding that offense-based public registration has, at best, no impact on recidivism. [R. 90 at 3846–49]. In fact, one statistical analysis in the record concluded that laws such as SORA actually increase the risk of recidivism. (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))

3. The idea that those previously convicted of a sex crime are especially likely to re-offend sexually is a myth. A 2012 meta-analysis of sex offender recidivism rates published in Criminal Justice and Behavior found that most offenders’ likelihood of committing another sexual offense over five years was around 7%. And a study of sex offender recidivism in Connecticut found an even lower rate of 3.6%. Emily Horowitz, a professor of sociology at St. Francis College and an expert on sex offense registries, says it best, “People who commit sex offenses have the lowest recidivism rate of almost any crime besides murder.” In fact, most reconvictions for registrants are for paper violations of the ever-increasing civil regulatory registry requirements, not a new crime. Horowitz says, “The registry wasn’t developed out of research; it was developed out of emotion and fear, which is a recipe for disaster in public policy.” (Sex Offender Laws Are Broken. These Women Are Working To Fix Them., n.d.)

Opposed to: legislation that creates an unconstitutional and punishing presence/distance restriction

1. There is also no empirical evidence that the presence or distance restrictions make anyone safer. In fact, they do the opposite.
2. In its decision, the Sixth Circuit Court of Appeals not only agreed but went on to declare that adding geographic exclusionary zones, among others, made Michigan’s SORNA, post its 2006 and 2011 amendments, punishment and therefore could not be applied retroactively (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
3. Moreover, the Sixth Circuit Court of Appeals said that geographic exclusionary zones and in-person reporting requirements are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety. (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))
4. Additionally, Human Services professionals and nationally recognized experts on sexual abuse and sex offender legislation agree that distance restrictions are counterproductive. According to Gina Puls (Puls, 2016), residency restrictions, which prevent sex offenders from living within an established distance of various places where children gather, have created enormous hardship for released sex offenders as they attempt to reintegrate into society, and the effectiveness of these laws has increasingly been rejected.
5. Establishing presence or distance restrictions expands the use and impact of registry law in West Virginia. It invites litigation if passed as it transitions the WV registry from a “civil regulatory schema” into a “criminal punishment schema,” which violates the Ex post facto clauses of the West Virginia and US Constitutions.
6. Article III, Section 4 of the West Virginia Constitution prohibits “No bill of attainder, ex post facto law, or law impairing the obligation of a contract, shall be passed.” (West Virginia Constitution, n.d.) There is little doubt that this bill could be anything other than a retroactive increase in punishment, ex post facto, because it seeks to place retroactive restrictions and punishment on registrants who have completed their court-ordered sentences.
7. Other jurisdictions have attempted to impose similar restrictions, only to have them stricken on constitutional grounds – most recently in Does v. Snyder, where the Sixth Circuit Court of Appeals determined Michigan’s SORNA to be punishment and may not be applied retroactively. (Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016))

Opposed to: panic legislation that purports to solve a problem that doesn’t exist

1. HB 5356 is panic legislation that addresses a problem that doesn’t exist with a solution that doesn’t work.
2. There are no known cases where a person forced to register interfered with or committed a sexual offense while using a school-based health center in West Virginia.
3. This is panic legislation for a problem that doesn’t exist, presumably to appease the public and garnish votes. Similar to what Catherine Carpenter concluded in her “Panicked Legislation” Journal of Legislation article when she said, “Ultimately, Panicked Legislation is a cautionary tale about hastily crafted lawmaking intended for only one purpose: to appease a fearful public.” (Carpenter, 2022)

WVRSOL supports legislation that actually works to reduce abuse and sexual offenses, help children and families, and improve public safety. Unfortunately, HB 5356 does none of these things. Therefore, we oppose and respectfully urge the House, its members, and the House Judiciary Committee to reject HB 5356.

Works Cited

Carpenter, C. L. (2022). Panicked Legislation (SSRN Scholarly Paper 4179366). https://doi.org/10.2139/ssrn.4179366

Does v. Snyder. No. 15-1536. United States Court of Appeals for the Sixth Circuit. August 25, 2016.

McKune v. Lile: 536 U.S. 24 (2002): Justia US Supreme Court Center. (n.d.). Retrieved February 10, 2024, from https://supreme.justia.com/cases/federal/us/536/24/

McKune v. Lile | Case Brief for Law Students | Casebriefs. (n.d.). Retrieved February 10, 2024, from https://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-saltzburg/self-incrimination-and-confessions/mckune-v-lile/

Puls, G. (2016). No Place to Call Home: Rethinking Residency Restrictions for Sex Offenders. Boston College Journal of Law and Social Justice, 36, 319.

Sex Offender Laws Are Broken. These Women Are Working To Fix Them. (n.d.). Retrieved February 10, 2024, from https://reason.com/2020/01/18/sex-offender-laws-are-broken-these-women-are-working-to-fix-them/

West Virginia Constitution. (n.d.). Retrieved February 10, 2024, from https://www.wvlegislature.gov/wvcode/wv_con.cfm?lv=true#articleIII

Click here for a PDF of the WVRSOL opposition letter: HB-5356_2024

By Philip . . . WVRSOL has provided written testimony in opposition to HB-4530 Creating a Domestic Violence Registry

OPPOSITION Response to HB 4530

Creating a Domestic Violence Registry

January 28, 2024

House Judiciary Committee:

West Virginians for Rational Sexual Offence Laws (WVRSOL) is a West Virginia non-profit association and an affiliate of the National Association for Rational Sexual Offence Laws (NARSOL), which advocates for society’s segment that is adversely affected by the sex offender registry. We help families impacted by the registry, seek ways to maintain and improve public safety, recommend prudent use of state funding in this area, and work to ensure that proposed legislation is constitutional.

WVRSOL opposes HB 4530 because public registries have proven unproductive; consequently, one must assume that the primary purpose of a new domestic abuse registry is for, simply put – public shaming. No other conclusion is possible.

HB 4530 – proposes the creation of a publicly accessible domestic abuser registry

1. The updates proposed to section §15-2C-1 is to add a new section §15-2C-2a, a domestic abuse registry, which significantly expands the use of public shaming registration in West Virginia. Along with the Sex Offense registry, the proposed Animal Abuser Registry (HB 4655), and now the proposed Domestic Abuser registry (HB 4530) – all of which purport public safety; however, in effect, do nothing other than to publicly shame offenders. (Kaso, Philip, 2024)

Opposed to: expanded use of public shaming registries

1. According to the Safety Net Project, HB 4530 will not improve public safety and have potentially harmful consequences.

Domestic violence continues to be an epidemic that requires comprehensive and effective responses that will hold offenders accountable, protect victims, and create real prevention. A domestic violence offender registry has many potentially harmful consequences and, regardless of the intended goals, is not a tool for primary prevention. To truly prevent abuse, we need to change social norms that allow and even condone one partner choosing to abuse another partner through power and control. (Offender Registries: Potential Unintended Consequences of Domestic Violence Offender Registries, n.d.)

2. Registries do not work – period, so why are we creating another doomed-to-fail registry?

The vast majority of Americans believe sex offender registries make their communities safer, according to polls. A growing body of research, however, suggests otherwise. A long list of studies using decades of data have found no significant evidence that registries prevent sex crimes. (Bebernes, 2022)

A new study of ours shows that these policies are not effective in deterring crime or protecting citizens. SORN policies demonstrate no effect on recidivism. This finding holds important policy implications given the extensive adoption and net-widening of penalties related to SORN. (Zgoba & Mitchell, 2023)

3. HB 4530 creates and passes a non-funded mandate from state to local county prosecuting attorneys in all 55 counties, where it will get mixed implementation, mixed enforcement, and undoubtedly mixed support.

WVRSOL supports legislation that actually works to reduce abuse and sexual offenses, help children and families, and improve public safety. Unfortunately, HB 4530 does none of these things. Therefore, we oppose and respectfully urge the House, its members, and the House Judiciary Committee to reject HB 4530.

Works Cited

Bebernes, M. (2022, March 24). Experts say sex offender registries don’t work. Can they be fixed? AOL News. https://www.aol.com/news/experts-sex-offender-registries-don-215957275.html

Kaso, Philip. (2024). OPPOSITION Response to HB 4655: Establishing an animal abuser registry. West Virginians for Rational Sexual Offence Laws (WVRSOL).

Offender Registries: Potential Unintended Consequences of Domestic Violence Offender Registries. (n.d.). Safety Net Project. Retrieved January 28, 2024, from https://www.techsafety.org/offender-registries

Zgoba, K. M., & Mitchell, M. M. (2023). The effectiveness of Sex Offender Registration and Notification: A meta-analysis of 25 years of findings. Journal of Experimental Criminology, 19(1), 71–96. https://doi.org/10.1007/s11292-021-09480-z

Click here for a PDF of the WVRSOL opposition letter: HB-4530_2024

By Philip . . . WVRSOL has provided written testimony in opposition to HB-4651 Increasing Penalties Sexual Offenses

OPPOSITION Response to HB 4651

Increasing Penalties for Sexual Offenses

January 28, 2024

House Judiciary Committee:

West Virginians for Rational Sexual Offence Laws (WVRSOL) is a West Virginia non-profit association and an affiliate of the National Association for Rational Sexual Offence Laws (NARSOL), which advocates for society’s segment that is adversely affected by the sex offender registry. We try to help families impacted by the registry, seek ways to maintain and improve public safety, recommend prudent use of state funding in this area, and work to ensure that proposed legislation is constitutional.

WVRSOL opposes HB 4651 because (a) there is no empirical evidence that longer sentences are preventative and (b) because of its exorbitant financial and apparent expounding exacerbation of the Division of Corrections and Rehabilitation prison population and overcrowding.

HB 4651 – proposed changes

1. The updates proposed to section §61-8B-18 to increase the median sentence length by eight years significantly increase prison sentences for those who will serve sentences for §61-8B-3, §61-8B-4, §61-8B-5, §61-8B-7, §61-8B-8, §61-8B-9, §61-8B-9b, §61-8B-10, and §61-8B-12 and new section §61-8B-4a.

Opposed to: the lack of empirical evidence that longer sentences are preventative

1. In the 1970s, the United States began an unsupportive research experiment in mass incarceration based solely on an emotional hypothesis that harsh punishment reduces crime. “Skeptics argued that imprisonment may have a criminogenic effect. The skeptics were right. Previous narrative reviews and meta-analyses concluded that the overall effect of imprisonment is null.” (Petrich et al., 2021)
2. Hawkins, an eminent and respected scholar, argues that “‘ rational’ policy and practice should be informed by research” and never on an emotional hypothesis. Over the last 4+ decades, “evidence-based corrections” has certainly evolved. Today,

Substantial scientific evidence, much of it based on evaluation research, provides direction on what does and does not work to change the behavior of justice-involved individuals (Lipsey and Cullen 2007; Bonta and Andrews 2017; more generally, see Cullen and Jonson 2017). This literature is clear in showing the limits of punishment-oriented interventions. Among this category of punitive sanctions, the data reveal that custodial placements, including in prison settings, are not effective in reducing future reoffending. (Petrich et al., 2021)

Opposed to: exacerbation of the Division of Corrections and Rehabilitation prison population costs and current overcrowding

1. The West Virginia prison population was 5,800, according to the Prison Policy Initiatives’ West Virginia profile. (West Virginia Profile, n.d.)
2. “Average Annual Cost Per Inmate for FY 2021: $38,788,” according to the FY 2022 Annual Report of the WV Division of Corrections and Rehabilitation. (Marshall, 2022)
3. Assuming HB 4875 is passed, ~29.62% of the FY 2021 inmate population of 5,800 (Marshall, 2022) would lose all “good time” and be required to serve their entire determinate sentences.
4. Assuming HB 4651 is passed, the average sentence for applicable sexual offenses would increase by at least six years determinate and at most eleven years determinate, so ~8 years median increase.
5. “Since 2000, the prison custody population has increased 82%,” or 4.56% per year (2000-2018), according to the Vera Institute of Justice’s Incarceration Trends in West Virginia fact sheet. (Incarceration Trends in West Virginia, 2019)

• If we take points 1-4 above, we can extrapolate as noted below:
  • 9,968 is the increase in the prison population in 10 years (2034) at a rate of 4.56% per year.
  • 2,840 or 30% of the 2034 total will be for HB 4875 qualifying offenses and must do 50% more time.
  • 2,840 or 30% of the 2034 total will meet the HB 4651 8-year median sentence increase.
  • 2,840 is the increase over the 9,968 total due to the HB 4875 50% added time increase and HB 4651 median sentence increase.
  • 12,808 the net prison population total in 2034, a 28% increase over current projections.
  • $224,970,400 today’s annual prison population cost ($38,788 x 5,800)
  • $367,244,784 projected 2034 annual prison population cost ($38,788 x 9,968) 63% increase
  • $496,796,704 projected 2034 annual prison population cost if HB 4875 and HB 4651 pass ($38,788 x 12,808), a 121% increase or 35% more than currently projected or $271,826,304.
    • $271.8M HB 44875 & HB 4651 prison population price tag based on today’s dollars projected in 2034
  • Suppose we add the $161.2M to the estimated $300M needed to increase pay and repair decaying facilities in the understaffed and overcrowded WV prisons (Culvyhouse, 2023). In that case, one can easily see that an added $271.8M for zero rehabilitation value, but instead, added punishment will never and should never be in the legislative budget or the taxpayer’s pocket.

WVRSOL supports legislation that actually works to reduce abuse and sexual offenses, help children and families, and improve public safety. Unfortunately, HB 4651 does none of these things. Therefore, we oppose and respectfully urge the House, its members, and the House Judiciary Committee to reject HB 4651.

Works Cited

Bonta, James, and D. A. Andrews. 2017. The Psychology of Criminal Conduct. 6th ed. New York: Routledge.

Cullen, Francis T., and Cheryl Lero Jonson. 2017. Correctional Theory: Context and Consequences. 2nd ed. Thousand Oaks, CA: Sage.

Culvyhouse, H. (2023, August 20). West Virginia lawmakers pour almost $100 million into improving jails. It’s not enough. Mountain State Spotlight. http://mountainstatespotlight.org/2023/08/20/jails-prisons-funding-dire-need-lawmakers/

Incarceration Trends in West Virginia. (2019). Vera Institute of Justice. https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-west-virginia.pdf

Lipsey, M., & Cullen, F. (2007). The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews. Annual Review of Law and Social Science, 3. https://doi.org/10.1146/annurev.lawsocsci.3.081806.112833

Marshall, W. K. (2022). FY 2022 Annual Report WV Division of Corrections and Rehabilitation (p. 47) [Annual]. https://dcr.wv.gov/resources/Documents/annual_reports/FY22%20ANNUAL%20REPORT%20WVDCR.pdf

Petrich, D. M., Pratt, T. C., Jonson, C. L., & Cullen, F. T. (2021). Custodial Sanctions and Reoffending: A Meta-Analytic Review. Crime and Justice, 50, 353–424. https://doi.org/10.1086/715100

West Virginia profile. (n.d.). Prison Policy Initiative. Retrieved January 20, 2024, from https://www.prisonpolicy.org/profiles/WV.html

Click here for a PDF of the WVRSOL opposition letter: HB-4651_2024

By Philip . . . WVRSOL has provided written testimony in opposition to HB-4742 Relating to Dangerous Crimes Against Children

OPPOSITION Response to HB 4742

Relating to Dangerous Crimes Against Children

January 28, 2024

House Judiciary Committee:

West Virginians for Rational Sexual Offence Laws (WVRSOL) is a West Virginia non-profit association and an affiliate of the National Association for Rational Sexual Offence Laws (NARSOL), which advocates for society’s segment that is adversely affected by the sex offender registry. We try to help families impacted by the registry, seek ways to maintain and improve public safety, recommend prudent use of state funding in this area, and work to ensure that proposed legislation is constitutional.

WVRSOL opposes HB 4742 because (a) sentences of life without the possibility of parole (LWOP) are (1) antithetical to personal transformation, the supposed primary goal of our corrections systems; (2) violates fundamental principles of human dignity (3) unnecessarily burdens prisons with the high cost of housing, feeding, and providing medical care; (b) there is no empirical evidence that longer sentences are preventative; and (c) because of its exorbitant financial and apparent expounding exacerbation of the Division of Corrections and Rehabilitation prison population and overcrowding.

HB 4742 – proposed changes

1. The updates proposed to section §61-8B-9a to increase prison sentences for sexual offenses against children and specifically increasing to without the possibility of parole (LWOP) for repeat violations of §61-8B-3, §61-8B-4, §61-8B-5, §61-8B-7, §61-8B-8 or §61-8B-9 is unconscionable.

Opposed to: sentences of life without the possibility of parole (LWOP)

1. Sentences of life without the possibility of parole (LWOP) are (1) antithetical to personal transformation, the supposed primary goal of our corrections systems; (2) violate fundamental principles of human dignity (3) unnecessarily burden prisons with the high cost of housing, feeding, and providing medical care.
   • “Life without parole is a common sentence in the United States, particularly as an alternative to the death penalty as states abolish or limit its use.” (Flatow, 2013) However, in 2013, the “top human rights court in Europe ruled that a prison sentence of life without parole is inhuman and degrading treatment, and violates the European Convention of Human Rights.” (Flatow, 2013)
   • Recommendations from The Sentencing Project in 2021 were to abolish life without parole in the United States.

Sentences of life without the possibility of parole (LWOP) are virtually unheard of in the rest of the world. They are considered antithetical to personal transformation, the primary goal of many other corrections systems. Even more, they violate fundamental principles of human dignity. Instead of serving the interests of justice, LWOP unnecessarily burdens systems with the heavy cost of housing, feeding, and providing medical care for the more than 55,000 people. This disproportionately elderly population must live in institutions not well designed to care for them. The elimination of LWOP will recalibrate all sentences underneath it. Public perceptions of incarceration minimize the negative impact of a 5- or 10-year sentence on an individual when compared to the extremes of a life sentence. Creation of a more fair and just system depends on ending all extreme penalties. (Ashley Nellis, 2021)

• Increases in life sentences without parole will have a direct corresponding increase in 8^Th Amendment challenges, which this bill if passed, will be ripe for.

In 2011, the US Supreme Court mandated that state penal systems respect the dignity of incarcerated people by eliminating overcrowded and inadequate prison conditions. The foreseeable ongoing increase in elderly prisoners portends similar legal challenges, with dignity claims concerning end-of-life care in prison moving to the fore of Eighth Amendment litigation. (Seeds, 2021)

Opposed to: the lack of empirical evidence that longer sentences are preventative

1. In the 1970s, the United States began an unsupportive research experiment in mass incarceration based solely on an emotional hypothesis that harsh punishment reduces crime. “Skeptics argued that imprisonment may have a criminogenic effect. The skeptics were right. Previous narrative reviews and meta-analyses concluded that the overall effect of imprisonment is null.” (Petrich et al., 2021)
2. Hawkins, an eminent and respected scholar, argues that “‘ rational’ policy and practice should be informed by research” and never on an emotional hypothesis. Over the last 4+ decades, “evidence-based corrections” has certainly evolved. Today,

Substantial scientific evidence, much of it based on evaluation research, provides direction on what does and does not work to change the behavior of justice-involved individuals (Lipsey and Cullen 2007; Bonta and Andrews 2017; more generally, see Cullen and Jonson 2017). This literature is clear in showing the limits of punishment-oriented interventions. Among this category of punitive sanctions, the data reveal that custodial placements, including in prison settings, are not effective in reducing future reoffending. (Petrich et al., 2021)

Opposed to: exacerbation of the Division of Corrections and Rehabilitation prison population costs and current overcrowding

1. The West Virginia prison population will increase by ~30% over current projection by 2034 if HB 4875 is passed, which raises the annual cost over the same period by ~38% over current projections or $161,155,680 (Kaso, 2024)
   • 2M
2. The West Virginia prison population will increase by an additional ~30% over current projection by 2034 if HB 4651 is passed, which raises the annual cost over the same period cumulatively by ~121% over current projections or $271,826,304 (Kaso, 2024a)
   • $271.8M
3. On top of this, an additional significant cost should HB 4742 pass, and one can see how quickly the 2024 legislative session could expand the WV prison cost by $300M+ over the next ten years.
   • Suppose we add the projected $300M+ 2024 expanded cost to the estimated $300M needed to increase pay and repair decaying facilities in the understaffed and overcrowded WV prisons (Culvyhouse, 2023). We see the net increase in cost rising to ~$600M over the next ten years.
     • ~$600M

WVRSOL supports legislation that actually works to reduce abuse and sexual offenses, help children and families, and improve public safety. Unfortunately, HB 4742 does none of these things. Therefore, we oppose and respectfully urge the House, its members, and the House Judiciary Committee to reject HB 4742.

Works Cited

Ashley Nellis. (2021). No End in Sight: America’s Enduring Reliance on Life Imprisonment (p. 46). The Sentencing Project. https://www.sentencingproject.org/reports/no-end-in-sight-americas-enduring-reliance-on-life-sentences/

Bonta, James, and D. A. Andrews. 2017. The Psychology of Criminal Conduct. 6th ed. New York: Routledge.

Cullen, Francis T., and Cheryl Lero Jonson. 2017. Correctional Theory: Context and Consequences. 2nd ed. Thousand Oaks, CA: Sage.

Culvyhouse, H. (2023, August 20). West Virginia lawmakers pour almost $100 million into improving jails. It’s not enough. Mountain State Spotlight. http://mountainstatespotlight.org/2023/08/20/jails-prisons-funding-dire-need-lawmakers/

Flatow, N. (2013, July 10). Top European Human Rights Court Deems Life In Prison Without Parole Inhuman and Degrading. Think Progress. https://archive.thinkprogress.org/top-european-human-rights-court-deems-life-in-prison-without-parole-inhuman-and-degrading-d615fc306396/

Kaso, P. (2024). OPPOSITION Response to HB 4875: Eliminate the use of good time credit for certain sexual offenses. West Virginians for Rational Sexual Offence Laws (WVRSOL).

Kaso, P. (2024a). OPPOSITION Response to HB 4651: Increasing penalties sexual offenses. West Virginians for Rational Sexual Offence Laws (WVRSOL).

Lipsey, M., & Cullen, F. (2007). The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews. Annual Review of Law and Social Science, 3. https://doi.org/10.1146/annurev.lawsocsci.3.081806.112833

Petrich, D. M., Pratt, T. C., Jonson, C. L., & Cullen, F. T. (2021). Custodial Sanctions and Reoffending: A Meta-Analytic Review. Crime and Justice, 50, 353–424. https://doi.org/10.1086/715100

Seeds, C. (2021). Life Sentences and Perpetual Confinement. Annual Review of Criminology, 4(1), 287–309. https://doi.org/10.1146/annurev-criminol-061020-022154

Click here for a PDF of the WVRSOL opposition letter: HB-4742_2024

By Philip . . . WVRSOL has provided written testimony in opposition to HB-4658 To clarify when inmates may receive “good time” or time served

OPPOSITION Response to HB 4658

To clarify when inmates may receive “good time” or time served

January 23, 2024

House Jails & Prisons Committee:

West Virginians for Rational Sexual Offence Laws (WVRSOL) is a West Virginia non-profit association and an affiliate of the National Association for Rational Sexual Offence Laws (NARSOL), which advocates for society’s segment that is adversely affected by the sex offender registry. We try to help families impacted by the registry, seek ways to maintain and improve public safety, recommend prudent use of state funding in this area, and work to ensure that proposed legislation is constitutional.

WVRSOL joins the ACLU of WV in opposition to HB 4658 because of its exorbitant financial and human cost, its apparent expounding exacerbation of the Division of Corrections and Rehabilitation prison population and overcrowding, and the inclusion of extended supervision while being subject to electronic or GPS monitoring for those affected.

HB 4658 – proposed changes

1. The updates proposed to section §15A-4-17 significantly expand the exclusion of “good time” from those serving a lifetime sentence to those serving sentences for (a) §61-2-1, §61-2-12(a), §61-2-14a, §61-2-29a (c), and §61-2-29a all relating to crimes against the person, (b) §61-8B-3, §61-8B-4, §61-8B-5, §61-8B-7, §61-8B-8, and §61-8B-9 all relating to sexual offenses, (c) §61-8D-2, §61-8D-2a, §61-8D-4a, §61-8D-5, and §61-8D-6 all relating to child abuse, and (d) §61-14-2 relating to human trafficking.
2. Moreover, the updates proposed to section §15A-4-17 also include a mandatory one-year post-release of supervision, subject to electronic or GPS monitoring for the entire supervision period, to all those included in the proposed “good time” exclusion categories.

Opposed to: exacerbation of the Division of Corrections and Rehabilitation prison population costs and current overcrowding

1. The West Virginia prison population was 5,800, according to the Prison Policy Initiatives’ West Virginia profile. (West Virginia Profile, n.d.)
2. “Average Annual Cost Per Inmate for FY 2021: $38,788,” according to the FY 2022 Annual Report of the WV Division of Corrections and Rehabilitation. (Marshall, 2022)
3. ~29.62% of the FY 2021 inmate population of 5,800 would be HB 4658 qualifying offenses based on the Adult Prison Statistics in the FY 2022 Annual Report WV Division of Corrections and Rehabilitation. (Marshall, 2022)
4. “Since 2000, the prison custody population has increased 82%,” or 4.56% per year (2000-2018), according to the Vera Institute of Justice’s Incarceration Trends in West Virginia fact sheet. (Incarceration Trends in West Virginia, 2019)

• If we take points 1-4 above, we can extrapolate as noted below:
  • 9,968 is the increase in the prison population in 10 years (2034) at a rate of 4.56% per year.
  • 2,840 or 30% of the 2034 total will be for HB 4658 qualifying offenses and must do 50% more time.
  • 1,420 is the increase over the 9,968 total due to the 50% added time increase.
  • 10,888 the net prison population total in 2034, a 13% increase over current projections.
  • $224,970,400 today’s annual prison population cost ($38,788 x 5,800)
  • $367,244,784 projected 2034 annual prison population cost ($38,788 x 9,968) 63% increase
  • $421,625,560 projected 2034 annual prison population cost if HB 4658 passes ($38,788 x 10,888), an 87% increase or 38% more than currently projected or $161,155,680.24
    • $161.2M HB 4658 prison population price tag based on today’s dollars projected in 2034
  • Suppose we add the $161.2M to the estimated $300M needed to increase pay and repair decaying facilities in the understaffed and overcrowded WV prisons (Culvyhouse, 2023). In that case, one can easily see that an added $161M for zero rehabilitation value, but instead, added punishment will never and should never be in the legislative budget or the taxpayer’s pocket.

Opposed to: mandatory one-year post-release of supervision, which is subject to electronic or GPS monitoring

1. In FY2021, West Virginia paid ~ $25,651,470 in supervision costs for parole and probation. (The Cost of Recidivism, 2023)

• Taking point 1 above, we can extrapolate as noted below:
  • Adding a year of supervision, possibly with GPS, to 2034 projected 13% more HB 4658 qualified candidates, we add another projected $3.3M in parole and probation costs.
    • $3.3M HB 4658 parole and probation price tag based on today’s dollars projected in 2034

Moreover, if GPS monitoring is included, the expense will be borne by the taxpayers for all indigent parolees and probationers, which is nearly all who are released from extensive prison sentences.

  Opposed to: a projected grand total price tag of $164.5M if HB 4658 passes

WVRSOL supports legislation that actually works to reduce abuse and sexual offenses, help children and families, and improve public safety. Unfortunately, HB 4658 does none of these things. Therefore, we oppose and respectfully urge the House, its members, and the House Jails & Prisons Committee to reject HB 4658.

Works Cited

Culvyhouse, H. (2023, August 20). West Virginia lawmakers pour almost $100 million into improving jails. It’s not enough. Mountain State Spotlight. http://mountainstatespotlight.org/2023/08/20/jails-prisons-funding-dire-need-lawmakers/

Incarceration Trends in West Virginia. (2019). Vera Institute of Justice. https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-west-virginia.pdf

Marshall, W. K. (2022). FY 2022 Annual Report WV Division of Corrections and Rehabilitation (p. 47) [Annual]. https://dcr.wv.gov/resources/Documents/annual_reports/FY22%20ANNUAL%20REPORT%20WVDCR.pdf

Sawyer, W. (2022, August 25). Since you asked: How many people are released from each state’s prisons and jails every year? Prison Policy Initiative. https://www.prisonpolicy.org/blog/2022/08/25/releasesbystate/

The Cost of Recidivism: The high price states pay to incarcerate people for supervision violations. (2023). The Council of State Governments Justice Center. https://csgjusticecenter.org/publications/the-cost-of-recidivism/

West Virginia profile. (n.d.). Prison Policy Initiative. Retrieved January 20, 2024, from https://www.prisonpolicy.org/profiles/WV.html

Click here for a PDF of the WVRSOL opposition letter: HB-4658_2024v2

By Philip . . . WVRSOL has provided written testimony in opposition to HB-4875 Eliminate the use of good time credit for certain sexual offenses

OPPOSITION Response to HB 4875

Eliminate the use of good time credit for certain sexual offenses

January 23, 2024

House Judiciary Committee:

West Virginians for Rational Sexual Offence Laws (WVRSOL) is a West Virginia non-profit association and an affiliate of the National Association for Rational Sexual Offence Laws (NARSOL), which advocates for society’s segment that is adversely affected by the sex offender registry. We try to help families impacted by the registry, seek ways to maintain and improve public safety, recommend prudent use of state funding in this area, and work to ensure that proposed legislation is constitutional.

WVRSOL joins the ACLU of WV in opposition to HB 4875 because of its exorbitant financial and human cost, its apparent expounding exacerbation of the Division of Corrections and Rehabilitation prison population, and overcrowding.

HB 4875 – proposed changes

1. The updates proposed to section §15A-4-17 significantly expand the exclusion of “good time” from those serving a lifetime sentence to those serving sentences for (1) §61-3C-14b, §61-8-32, §61-8A-2, §61-8A-4, §61-8A-5, §61-8B-3, §61-8B-4, §61-8B-5, §61-8B-7, §61-8B-8, §61-8B-9, §61-8B-10, §61-8B-11, §61-8C-2, §61-8C-3, §61-8C-3a, §61-8D-3a, §61-8D-5, §61-8D-6, §61-14-2, §61-14-5, §61-14-6 all relating to sexual offenses.

Moreover, the updates proposed to section §15A-4-17 include a clause that removes good time for those already placed in the custody of the Commissioner of the Division of Corrections and Rehabilitation after October 21, 2023, which would be unconstitutional.

Opposed to: exacerbation of the Division of Corrections and Rehabilitation prison population costs and current overcrowding

1. The West Virginia prison population was 5,800, according to the Prison Policy Initiatives’ West Virginia profile. (West Virginia Profile, n.d.)
2. “Average Annual Cost Per Inmate for FY 2021: $38,788,” according to the FY 2022 Annual Report of the WV Division of Corrections and Rehabilitation. (Marshall, 2022)
3. ~29.62% of the FY 2021 inmate population of 5,800 would be HB 4875 qualifying offenses based on the Adult Prison Statistics in the FY 2022 Annual Report WV Division of Corrections and Rehabilitation. (Marshall, 2022)
4. “Since 2000, the prison custody population has increased 82%,” or 4.56% per year (2000-2018), according to the Vera Institute of Justice’s Incarceration Trends in West Virginia fact sheet. (Incarceration Trends in West Virginia, 2019)

• If we take points 1-4 above, we can extrapolate as noted below:
  • 9,968 is the increase in the prison population in 10 years (2034) at a rate of 4.56% per year.
  • 2,840 or 30% of the 2034 total will be for HB 4875 qualifying offenses and must do 50% more time.
  • 1,420 is the increase over the 9,968 total due to the 50% added time increase.
  • 10,888 the net prison population total in 2034, a 13% increase over current projections.
  • $224,970,400 today’s annual prison population cost ($38,788 x 5,800)
  • $367,244,784 projected 2034 annual prison population cost ($38,788 x 9,968) 63% increase
  • $421,625,560 projected 2034 annual prison population cost if HB 4875 passes ($38,788 x 10,888), an 87% increase or 38% more than currently projected or $161,155,680.24
    • $161.2M HB 4875 prison population price tag based on today’s dollars projected in 2034
  • Suppose we add the $161.2M to the estimated $300M needed to increase pay and repair decaying facilities in the understaffed and overcrowded WV prisons (Culvyhouse, 2023). In that case, one can easily see that an added $161M for zero rehabilitation value, but instead, added punishment will never and should never be in the legislative budget or the taxpayer’s pocket.

Opposed to: applying a good time exception to a specifically targeted class of citizens, in this case, those with sexual offenses

1. It is restrictive and inclusive to those with sexual offenses only while allowing all other non-life sentence offenses to retain good time application. This legislation is targeted ostracization behavior for no relevant or apparent reason.

Opposed to: The ex post facto clause prevents removing good time for those already placed in the custody of the Commissioner of the Division of Corrections and Rehabilitation after October 21, 2023

1. While good time is by no means a constitutional right, applying a clause that removes good time from any date other than from crimes committed after the date of passage should HB 4875 be signed into law is unconstitutional and will result in litigation challenges and expenses citing the constitutions guarantee that no ex post facto laws will be enacted.

WVRSOL supports legislation that actually works to reduce abuse and sexual offenses, help children and families, and improve public safety. Unfortunately, HB 4875 does none of these things. Therefore, we oppose and respectfully urge the House, its members, and the House Judiciary Committee to reject HB 4875.

Works Cited

Culvyhouse, H. (2023, August 20). West Virginia lawmakers pour almost $100 million into improving jails. It’s not enough. Mountain State Spotlight. http://mountainstatespotlight.org/2023/08/20/jails-prisons-funding-dire-need-lawmakers/

Incarceration Trends in West Virginia. (2019). Vera Institute of Justice. https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-west-virginia.pdf

Marshall, W. K. (2022). FY 2022 Annual Report WV Division of Corrections and Rehabilitation (p. 47) [Annual]. https://dcr.wv.gov/resources/Documents/annual_reports/FY22%20ANNUAL%20REPORT%20WVDCR.pdf

Sawyer, W. (2022, August 25). Since you asked: How many people are released from each state’s prisons and jails every year? Prison Policy Initiative. https://www.prisonpolicy.org/blog/2022/08/25/releasesbystate/

The Cost of Recidivism: The high price states pay to incarcerate people for supervision violations. (2023). The Council of State Governments Justice Center. https://csgjusticecenter.org/publications/the-cost-of-recidivism/

West Virginia profile. (n.d.). Prison Policy Initiative. Retrieved January 20, 2024, from https://www.prisonpolicy.org/profiles/WV.html

Click here for a PDF of the WVRSOL opposition letter: HB-4875_2024v2

By Philip . . . WVRSOL has provided written testimony in opposition to HB-4222 Relating generally to probation and parole

OPPOSITION Response to HB 4222

Relating generally to probation and parole

January 23, 2024

House Jails & Prisons Committee:

West Virginians for Rational Sexual Offence Laws (WVRSOL) is a West Virginia non-profit association and an affiliate of the National Association for Rational Sexual Offence Laws (NARSOL), which advocates for society’s segment that is adversely affected by the sex offender registry. We help families impacted by the registry, seek ways to maintain and improve public safety, recommend prudent use of state funding in this area, and work to ensure that proposed legislation is constitutional.

WVRSOL joins the ACLU of WV in support of HB 4222 because it allows people on probation and parole to earn credits to shorten their period of supervision; however, as written, we also oppose it since it carves out an exception for those convicted of sexual offenses.

HB 4222 – proposed changes

1. The updates proposed to section §62-12-30 significantly improve the probation and parole policy, incentivize those affected to participate, better themselves as citizens, and help facilitate effective and successful re-entry. However, the proposed changes carve out exceptions for those on probation and parole with convictions for §61-2-1 et seq., §61-3E-1 et seq., §61-8B-1 et seq., and §61-8D-1 et seq.

Opposed to: carved-out exceptions

1. The proposed changes exclude ~31% of the current 5,842 prison population. (Marshall, 2022)
2. One could, and we do argue, that those proposed to be excluded are actually the supervised population we should be targeting to offer these incentives to, not EXCLUDE.
3. How does excluding ~31% of the supervised population reduce the supervision roles, associated costs, and human resources hours?
4. What logical reasoning/purpose do the bill sponsors say these exclusions support other than – “… cannot say we are soft on crime.“

Considering all of the above, it’s clear that HB 4222 should be supported; however, the carved-out exceptions SHOULD be removed.

WVRSOL supports legislation that actually works to reduce abuse and sexual offenses, help children and families, and improve public safety. HB 4222 does this, and we support it; however, we oppose and respectfully urge the House, its members, and the House Jails & Prisons Committee to remove the carved-out exceptions to HB 4222.

Works Cited

Marshall, W. K. (2022). FY 2022 Annual Report WV Division of Corrections and Rehabilitation (p. 47) [Annual]. https://dcr.wv.gov/resources/Documents/annual_reports/FY22%20ANNUAL%20REPORT%20WVDCR.pdf

Click here for a PDF of the WVRSOL opposition letter: HB-4222_2024