The West Virginia Advisory Committee (Advisory Committee) to the U.S. Commission on Civil Rights (Commission) is investigating the collateral consequences of a felony record on West Virginians’ access to employment, housing, professional licenses, and public benefits. Appalachian Views has engaged the Commission and attended recent meetings of the Advisory Committee in order to examine its ongoing work concerning civil rights in West Virginia.

The Commission is one of the landmark reforms of the Civil Rights Act of 1957 (P.L. 85-315), which represented the first instance since Reconstruction that the federal government undertook significant legislative action to protect civil rights. The Commission serves as the only independent, executive, bipartisan, fact-finding agency, with a charge to inform both the President and Congress on implementation of civil rights protections. It does so through investigations and reports monitoring federal civil rights enforcement efforts throughout the United States. The Commission is composed of eight Commissioners: four appointed by the President and four by Congress. Underlining its bi-partisan nature, not more than four members, at any one time, can be of the same political party. The current Commission consists of three Democrats, one Republican, and three Independents.

But even with its procedural safeguards, the Commission has not escaped the politics of the beltway. According to a 2008 Congressional Report, the Commission has been subject to an increasingly heated partisan debate between Republicans and Democrats, which can be summarized as a divide between those seeking to limit government’s role to ensuring a legal right to equal opportunity as opposed to those supporting government measures to overcome discrimination in order to achieve actual socioeconomic equality. Unsurprisingly, controversy at the Commission has continued in the Trump era. In 2017, Commissioners split along partisan lines in a 6-2 vote to issue a statement expressing “grave concerns” with the Trump administration’s budget priorities and policies impacting civil rights. The Commission found “particularly troubling” Education Secretary Betsy Ross’s “repeated refusal in Congressional testimony and other public statements to commit that the department would enforce federal civil rights laws.”

This political fighting could come at a cost to the Commission, which faces potential threats to its budget or even direct interference from the White House. Notably, in 1983, President Ronald Reagan fired several commissioners who were critical of his administration, triggering a debate on the Commission’s independence and mandate. As a result, Congress reformed the appointment process by enacting its current formula stipulating both Congressional and Presidential appointments. Later, however, Congressional critics severely cut the Commission’s budget and staffing capacity, including eliminating all regional offices. As a result, the Commission has come to rely on volunteer state advisory committees to assist in carrying out its investigative and reporting functions.

For example, in the current effort involving West Virginia, the Commission is supported by the Advisory Committee. Each state advisory committee has a charter, valid for a four-year term, which it uses as a basis for operation and for selecting its members. Members are recommended by the Commission’s regional director of their area, approved by the Commission staff director, and voted on by Commissioners. West Virginia is currently represented by ten members from across the state and led by Chairwoman Tara N. Martinez, Executive Director of Manna Meal, a non-profit soup kitchen based in Charleston. In relation to the ongoing investigation, Chairwoman Martinez observed: “I believe that residents of this state have no idea the extent to which a felony record can continue to limit the life chances of ex-offenders once released from custody even though they have served the time for their crimes.”

In addition to topics like the impact of felony records, the Commission has investigated a number of civil rights issues such as alleged deprivations of voting rights and alleged discrimination based on race, color, religion, sex, age, disability, or national origin, or in the administration of justice. The Commission does not have enforcement power, but instead refers complaints to the appropriate federal, state, or local governmental agency for remedy. Nevertheless, the Commission has been a key driver for highlighting ongoing threats to constitutionally-protected civil rights.

In 2018, the Commission issued a detailed report highlighting the “pernicious and enduring American problem” of racial discrimination in voting and called for legislative reforms to address the weakening of the Voting Rights Act of 1965 following the Supreme Court decision in Shelby County v. Holder in 2013. In Shelby County, the Court struck down parts of the Voting Rights Act, which mandated that jurisdictions with a history of discrimination had to submit any changes in voting procedures to the Department of Justice or a federal court and prove that the new voting procedures would not be discriminatory. To protect voting rights following this decision, the Commission called for, among other things, a streamlined remedy for federal review of certain state voting law changes with known risks of discrimination before they take effect—not after potentially tainted elections. More recommendations are expected this year when the Commission completes its comprehensive two-year assessment of federal civil rights enforcement under the Trump administration.

With regard to the Commission’s engagement in West Virginia, the Advisory Committee is in the midst of drafting its report on the collateral consequences of felony records. The report’s findings will be based, in part, on the findings from a public hearing held in July 19, 2018, at the Capitol Complex in Charleston. The Advisory Committee convened a panel of experts to discuss how felony records can impact an individual’s access to housing, employment, legislation, occupation licensing, and public benefits. Participants included criminal justice and housing activists, faith leaders, academics, public defenders, and representatives from the state legislature and attorney general’s office. The Advisory Committee hearing highlighted potential areas for criminal justice reform.

For instance, panelists highlighted the fact that West Virginia was one of six states that had not modified or opted out of the federal law barring persons convicted of felony drug offenses from accessing the Supplemental Nutrition Assistance Program (SNAP), otherwise known as food stamps. Most recently, on March 1, 2019, Governor Jim Justice signed House Bill 2459 lifting the ban on access SNAP for persons with drug felony convictions in West Virginia. One the hearing participants, Lida Shepherd of the American Friends Service Committee, explained to Appalachian Views the important role the Advisory Committee played in this milestone legislation: “The Advisory Committee to the U.S. Commission on Civil Rights helped raise awareness of the many laws that continue to punish people after they’ve served their sentence. In order to get House Bill 2459 passed, awareness was a crucial first step because many lawmakers did not know that this federal law was affecting so many people in West Virginia. Until we take a hard look at the policies that prioritize incarceration over substance abuse treatment, then we must ensure people are given every chance to succeed post incarceration. HB 2459 is an important step in the right direction and will relieve a lot of unnecessary human suffering.”

One of those on the ground providing treatment is Matthew Kerner, Executive Director of Opportunity House in Buckhannon. The non-profit organization offers recovery support services like counseling and housing. According to Mr. Kerner, criminal justice reforms like House Bill 2459 are incredibly important to the everyday lives of the people he encounters: “People often have a movie version of how drug culture works. At a local level, when folks come out of incarceration, they have little or no support. Limiting access to food, shelter, and employment, just makes their lives harder and increases the chances that they will return to the lifestyle that resulted in their criminal conviction. It’s like escaping from a spider web. Any step we can take, like providing access to food, helps turn the odds towards recovery.”

At its meeting on February 15, 2019, the Advisory Committee reviewed the status of the investigation. Ivy Davis, Director of the Eastern Region, which includes West Virginia, opened the discussion and turned over the proceeding to Chairwoman Martinez. Much of the data-collection phase is complete. Ellis Atiba, professor of law at West Virginia University, leads the working group responsible for the initial draft.

The final report of the Advisory Committee’s investigation will document ongoing developments in West Virginia, such as House Bill 2459, and make further recommendations. Other notable reforms recently passed by the state legislature that address issues raised during the civil rights investigation include: Senate Bill 152 which permits people with non-violent felony and misdemeanor convictions to petition to clear their criminal record with a few exceptions; House Bill 2083, which eases the process for obtaining a state ID after being released from prison; and House Bill 2486 which lifts certain restrictions on dozens of professional licenses for people with criminal convictions.

During the Advisory Committee’s meeting on March 1, 2019, Mr. Atiba outlined the draft report and conveyed a goal to publish the report by November. November is also when the current two-year term of the Advisory Committee ends. As such, the Commission is soliciting new applicants to serve on the West Virginia Advisory Committee. Committee members come from a broad cross-section of professional, educational, and political backgrounds. Members serve without compensation, although they are eligible for reimbursement for per diem subsistence allowance

and travel expenses. The Commission is particularly interested in appointing individuals with diverse points of view who have a demonstrated interest in civil rights, voting rights and the equal protection of the law in the administration of justice. The Advisory Committee serves as the Commission’s “eyes and ears” on the ground, providing advice to the Commission about civil rights matters in their locales. Moreover, reports of the state advisory committees may lead to important policy changes – locally and nationally. Based on comments made to the Advisory Committee, “worker bees” are particularly appreciated.

In West Virginia, the work of the Advisory Committee continues. Meaningful change is already occurring, and the forthcoming report will add fresh momentum for initiatives designed to mitigate the collateral damage of felony records. From his view in Buckhannon, Mr. Kerner notes: “This problem transcends politics and speaks to our basic humanity. I see it daily. Approximately 70% of Opportunity House participants suffer from a criminal conviction. Now West Virginia has the opportunity to offer a critical voice on a civil rights issue that deeply impacts our community and beyond. There is certainly more work to be done.”