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W.Va. chief justice offers his view from the bench

CHARLESTON, W.Va. - With state prisons bursting at the seams and experts predicting the problem will only get worse, state Supreme Court Chief Justice Brent Benjamin is urging lawmakers to get to work.

"This is a tidal wave that's coming," he said.

House lawmakers are still working out their differences on Gov. Earl Ray Tomblin's prison bill, which is meant to reduce populations and save the state more than $100 million over the next five years.

House Speaker Rick Thompson, D-Wayne, and Minority Leader Tim Armstead, R-Kanawha, said last week they do not like a provision in the bill allowing some nonviolent offenders to leave prison early on a supervised release program.

Benjamin is worried that if the Legislature delays action on the state's prison overcrowding problems, someone will sue the state. That lawsuit likely would reach the U.S. Supreme Court.

"When legislators look at overcrowding, they have the luxury of time. They have the luxury of options. They have the luxury of looking at cost," he said. "If they leave it for the courts to act, the courts have to look at it from a constitutional parameter."

A high court could order West Virginia to build a new prison or even release some inmates, with no consideration of the cost.

But Benjamin is hopeful prison reform will pass this session. He said he has talked with delegates and believes there is enough bipartisan support to pass the bill.

"Hopefully the leadership can get this to the floor," he said.

Benjamin said concerns about the six-month early releases are unfounded.

"It's easy to get into the crime and punishment side of things," he said. "They're still under state control."

He said without such an early release program, prisoners return to society with no supervision at all.

"There's no control. They're simply put back in our communities," he said.

That leads to more crime, Benjamin said, and more cost to the state.

Drug courts

Benjamin said West Virginia already has seen success with a smaller program, the state's drug courts.

Earlier this year, Benjamin spoke to members of the House and Senate judiciary committees about the successes of the state's 20 adult and 16 juvenile drug courts.

Drug courts cost the state $3 million a year, with most of that money going for drug testing and court administrators' salaries. Benjamin said the judges, prosecutors and mental health experts involved in the program volunteer their time to their courts.

Without the drug courts, Benjamin said the state would pay $21 million to keep participants in state jails or prisons.

About 52 percent of adult drug court participants - 420 in all - have graduated from the program since its inception in 2003, according to the Supreme Court's report. Juvenile drug courts have a 62 percent graduation rate, with 201 individuals successfully completing the program between 2007 and 2012.

Benjamin told lawmakers about 10 percent of adult drug court graduates will return to jail, while the return rate for traditional incarceration methods is about 30 percent. Recidivism among juvenile offenders is 14 percent for drug court graduates as compared to 51 percent for traditional juvenile justice.

"What we found was, if we did it the right way, we could not only do it a lot cheaper . . . but we could also get a better result for the individual and turn their lives around," Benjamin said.

"These are lives that are turned around. They become responsible, hardworking West Virginians. They break that cycle.

"Justice reinvestment is very similar to that, but on a much, much grander scale."

New View

Following the legislative session, Benjamin plans to turn his attention to another area of concern, the state's adoption system.

He said in 2009 about 900 children in West Virginia were eligible for adoption. There are now more than 1,300.

The state Supreme Court is starting a program called New View that will bring together attorneys who specialize in adoptions to look at old case files and decide which ones deserve special attention.

Benjamin compares the process to the television show "Cold Case," which features investigators taking up unsolved crimes.

"Instead of criminal cases, these are cases of placement," he said. "You've got to look beyond the numbers because each child has a life. Each child wants an address. Each child wants a family and is entitled to that."

New View also would focus on finding extended family members of children in the state foster system who might be willing to give them a permanent home.

Benjamin said the high court also hopes to partner with religious institutions around the state to help find adoptive parents. He said many families who might be willing to adopt worry they can't afford it.

"Maybe just having that congregation of people around them would give them just that extra amount of support," he said.

Parents' influence

Benjamin traces his passion for human rights issues, from drug courts to adoptions, to his parents.

His mother and father both grew up poor. Benjamin's father was orphaned during the Great Depression. They emphasized to their children the importance helping people.

"The thing that was most important was people. That was instilled in me at a very early age," Benjamin said.

Benjamin grew up in Columbus and was recruited to play lacrosse by Ohio State University, where he completed both his undergraduate and law degrees. He said his parents' focus on helping people influenced him to become a lawyer and, later, a judge.

"If you look at the judges in West Virginia, what you see are people who are not just occupying public office. These are folks who want to serve their fellow West Virginians. Most of these people could be making much more money in private practice," he said.

After college, Benjamin and his wife moved to Charleston. He worked for the local Robinson & McElwee law firm for 20 years.

He was elected to the state Supreme Court in 2004, defeating incumbent Justice Warren McGraw.

Don Blankenship, then-CEO of Massey Energy coal company, contributed $3 million to an effort to unseat McGraw. That obviously benefited Benjamin, his opponent. The Blankenship effort came back to haunt Benjamin in 2008, when a case involving Massey came before the Supreme Court.

He did not recuse himself from that case. When the plaintiffs appealed the state Supreme Court's decision to the U.S. Supreme Court, justices there ruled the West Virginia high court must reconsider the case - with Benjamin not participating.

'Like a family'

Benjamin began his term as chief justice in January.

Justices rotate the position each year, and Benjamin previously held the office in 2009.

Serving as chief justice doesn't give Benjamin any more power on the court. Just as on the U.S. Supreme Court, all five justices' opinions carry equal weight. But the leadership position does significantly increase his workload.

The state Supreme Court does much more than rule on cases. It also is charged with administering all the state's lower courts, from magistrate courts all the way up. As chief justice, Benjamin is the state court system's top administrator.

"We are an entire branch of government, and our job is not just to adjudicate, but run all of the courts in West Virginia," he said. "Somebody has to make certain administrative decisions."

The chief justice also is the high court's de facto spokesman, appearing before the Legislature when the need arises and speaking for the other justices on national matters.

When in session, the state Supreme Court holds court dates every other week. Justices use the off weeks to catch up on reading and research.

Benjamin said he now finds himself doing much of that reading and preparation at night, because his days are largely consumed with administrative work.

He's glad the chief justice position rotates every year because it gives each member an appreciation for the amount of work required to keep the state's judicial system going.

However, he enjoys the work.

"For me, serving with my four colleagues is a treasure. We genuinely like each other. It's almost, in some ways, like a family," he said. "It makes the job fun."

And while the Supreme Court may act like a family, Benjamin said that doesn't prevent the five justices from having strong disagreements. Justices still respect one another, however, and listen to their colleagues' opinions.

Benjamin said many times he doesn't know how cases will turn out until the final vote.

"You change your mind a lot by listening to your colleagues," he said.

He said the state Supreme Court was a very political "activist court" in the past but is now more nonpartisan and moderate.

"I think we all have the same vision, that the court needs to be a stabilizing force in West Virginia," he said.

Justice Allen Loughry is the newest addition to the court. He was elected in November to fill retiring Justice Thomas McHugh's seat. Benjamin said McHugh is greatly missed, but he predicted Loughry would fit in well with the other justices.

"I think as we begin reading his opinions, I think people will get a very good image of him as a responsible, competent, thoughtful jurist," he said. "It's a delight to have him on our court."

Contact writer Zack Harold at 304-348-7939 or Follow him at



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