Second Chance Act was down to its final minutes

CHARLESTON, W.Va. — The Second Chance for Employment Act almost ran out of chances.

The bill, under discussion the past couple of years and meant to help non-violent felons improve their job opportunities, had been passed by both houses of the West Virginia Legislature in two different forms.

The houses needed to agree on one bill, but time was running out.

The original version that passed through the Senate would allow non-violent felons who have served their time to petition the court system to expunge their record.

The House, in an earlier bit of drama this past Friday evening, amended the bill to allow non-violent felons to petition to have their sentences reduced to misdemeanors. The idea was that employers wouldn’t immediately blow them off, but could see the full record in a background check.

On Saturday, the final day of this year’s legislative session, the Senate needed to decide whether to accept or reject the House’s change.

But time was running short. The Senate worked through a long day of final passage of bills and then matters got really pressing as the Legislature made a final push to pass a budget for the coming fiscal year.

About 11 p.m. Saturday, the Senate officially received a message from the House about the changes that had been made to the employment bill.

Senate Majority Leader Ryan Ferns rose and offered an amendment to clarify the term “reduced misdemeanor.” The full Senate approved his motion.

That left only one hour for the House to receive the message and decide what to do. A bill-runner took the Senate’s message on SB76 and took off running toward the House.

About 10 minutes before midnight, the House had worked through its own agenda and took up the Second Chance for Employment Act. The House voted to concur with the Senate’s change and then voted to pass the whole bill.

As it did so, applause went up among supportive delegates.

Five minutes remained in the session. A bill-runner grabbed a copy of the bill, SB76, from the House Clerk and took off running toward the Senate Chamber to ensure it would be received and entered before the final gavel.

In official terms, the message was communicated to the Senate and that completed legislative action. The bill goes to the governor to be signed or vetoed.

That’s a lot of drama, but it was just the second act of what started Friday night.

Delegate Mike Pushkin, a Democrat who has made the bill his passion for the past two years, teamed up with House Judiciary Chairman John Shott, a Republican, to come up with an amendment that might strike a balance that could lead toward passage.

Their amendment focused on the state’s drug epidemic and narrowed those who could be affected to people who were convicted of non-violent, drug-related crimes. It also switched from the possibility of expungement to the possibility of a reduced sentence.

“I think a number of people felt that because the focus was on drug crimes, that ought to be some connection to the crime in order for them to be eligible,” Shott said in an interview Saturday morning.

The amendment caught other delegates by surprise. An earlier amendment worked out in Judiciary Committee would have applied to a broader range of non-violent offenses.

One of those who expressed disappointment with the amendment was Delegate Amy Summers, a Republican from Taylor County: “I think we’ve watered this down.”

The amendment put forth by Shott and Pushkin was voted down.

“Unfortunately, I think it confused some people because we didn’t have time to discuss it – certainly not with our caucus and I assume the Democrats with theirs,” Shott said. “So we went really off track when that went down to defeat.”

Pushkin also saw flaws in the logic of the amendment, although he supported it because he wanted some form of the bill to pass.

“Personally I didn’t think that made much sense. What if someone didn’t use drugs? That doesn’t apply to them? To me it didn’t make much sense but I supported it because I wanted to see a bill passed,” he said.

“But it was members of the Republican Party also saw the obvious flaws with that amendment.”

With the amendment defeated, delegates were in the act of voting on the full bill when Speaker Tim Armstead realized that one of the delegates had pushed a button to request to make comments about the bill.

That stopped the voting but started some more confusion.

Clusters of delegates began talking among themselves. Shott approached the Speaker’s podium. Then he walked over to where Pushkin was talking with some Democrats.

“I went back up and wanted to know  if we could fall back on the original committee strike-and-insert amendment, which I had withdrawn earlier,” Shott said. “It was significantly broader. It did not limit the crimes that were eligible for this kind of relief. They had to be non-violent.

“Keep in mind it was late and people were tired too. There wasn’t a whole lot of communication that had gone on beforehand about the bill because it was late being delivered to the members.”

Shott made a motion to offer the original amendment drawn up by the Judiciary Committee that would apply to a broader category of non-violent offenses.

Some delegates rose to support that amendment. Republican Riley Moore of Jefferson County spoke in favor of compromise. “Don’t let perfection be the enemy of the good. Let’s pass this amendment and pass this bill.”

Democrat Barbara Fleischauer of Monongalia County rose and expressed ambivalence. She had supported similar efforts for years and was worried that a version designed to pass the House might not pass the Senate.

“This bill has been delayed and delayed and delayed,” Fleischauer said. “At this point, I feel the best way to get bill this year is to say no to the amendment.”

Others, like Democrat Isaac Sponaugle of Pendleton County, argued against the aspect that provided the possibility of a reduced sentence, rather than full expungement.

Pushkin rose and said he would like to see some form of the bill pass, even if it meant compromising.

With 74 ayes and 25 nayes, the amendment that originated in the Judiciary Committee was adopted.

Then the bill was up for full passage.

Delegates voted overwhelmingly in favor of it — 95 ayes, 4 nayes, one absent.

The bill was on its way, setting up the drama of Saturday night.

Between the two acts, Pushkin took a few minutes to reflect on the bill. He said it’s important for West Virginians who have made serious mistakes to have better opportunities to reintegrate into society.

“The reason why it’s such an important piece of legislation is we all hear all the time that we’ve got this massive drug epidemic that’s just ravaged our state. One of the other by products is, I think we lead the nation in felons,” Pushkin said.

“A lot of these people get better too. They turn their lives around and we want them to get back to work. It’s not soft on crime. It’s very smart on policy. It’s about putting people back to work so they can provide for their families, become taxpayers.”

Some of the delegates who supported the bill spoke about friends or family members who have been trying to keep their lives on track after running afoul of the law.

“Roughly 10 percent of the state has a felony on their record so of course it’s going to touch everybody,” Pushkin said. “That’s a large number. So it doesn’t surprise me there’s members of this body who know people who would benefit from this legislation.”

Kayla Kessinger

Among those was Delegate Kayla Kessinger of Fayette County. On Friday night, she rose and spoke about her aunt, who committed a non-violent felony about a decade ago. The crime wasn’t drug-related so Kessinger was expressing frustration about the amendment that narrowed the focus to drug-related crimes.

On Saturday morning, Kessinger said her aunt helped the bill’s importance be clear to her.

“All of us know people in our families or our immediate friend groups who have made mistakes in their lives. My family is no different,” Kessinger said. “My Aunt Jessica made a mistake a lot of years ago. She paid her dues. She went to jail. Now she’s got three kids, she’s got her life together.

“Because of the mistake she made years ago, she still struggles to be able to provide for her family and find a job. Here’s this woman who just wants to work, just wants to provide for her kids, just wants to be able to pay her power bill and she looked at me one day and she said, ‘Everybody complains that I’m on welfare and government assistance but nobody wants to help me find a job.’”

Kessinger said a conversation with her aunt after the bill’s passage in the House underscored its importance.

“So yesterday when the bill passed I called her and she just started crying and was so thankful that we were able to do something. I think it was the biggest jobs bill all session.

“When I make decisions I try not to be led by emotion, but sometimes it’s hard and when you have to look somebody in the face every day and know that they not only paid their dues for the mistake they made so many year ago but continue to pay today, it makes you emotional.”

Shott said his own position on the bill was influenced by his work over the past couple of years with an advisory board for Recovery Point Four Seasons in Bluefield. The treatment center helps people through addiction recovery.

“It’s just exposed me to a number of people. A number of staff there have been through the program themselves and taken jobs as staff,” Shott said. “I’ve run into a number of other people who are connected to the drug court who are on the advisory board and in conversations with them realizing how difficult it is when you’ve completed that very difficult recovery program, the presence of a felony on your record serves as a real obstacle to even getting in the door on some job opportunities.

“It depresses the hope that people have when they get through that that there’s a chance they really can get an opportunity to turn their lives around and get the felony. Most of these cases were drug-related felonies.”

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