New West Virginia Capias Law – Effective June 9, 2023

WEST VIRGINIA CENTER ON BUDGET AND POLICY FACT SHEET

In March 2023, lawmakers passed legislation to

address a growing reason why people are taken

to West Virginia jails: capiases. A capias – or

bench warrant – is an arrest order issued by a

magistrate or judge. The number of people

brought to jail on a capias arrest in West Virginia

increased from 1,990 in 2012 to 4,936 in 2022.

Today, one in eight people enter jail because of a

capias. Capiases are one reason why West

Virginia’s jail population has continued to grow

over the last decade – despite declining crime

rates and fewer criminal cases filed over that

time.

Senate Bill 633 provides Magistrate and Circuit courts a uniform standard for addressing capiases with

three key provisions:

1. A Hearing Within Five Days of a Capias Arrest

Under the new law, when a person is arrested on a capias, the magistrate or judge who issued the capias

must hold a hearing within five days of the arrest and set a bond. New Code: §§ 62-1C-17b(k), 62-2-17(e).

Also, if a person is arrested in another county, they must be transferred within five days of their arrest to

the regional jail serving the county that issued the capias. New Code: § 62-1-7.

2. A Standard for Issuing a Capias due to Nonappearance

Before a court may issue a capias for failing to appear at a hearing, the court must determine the person

received effective notice of the court hearing. A notice is “effective” if it provides the date, time, location,

and purpose of the hearing to the defendant or defendant’s counsel no fewer than 10 days prior to the

scheduled court hearing. Publication in a newspaper is not effective notice. New Code: §§ 62-1C-17b(f)-(h).

If a person receives effective notice, but has no documented history of nonappearance, the court may not

issue a capias until 24 hours after the scheduled hearing. Further, a person who voluntarily appears within

24 hours of the scheduled hearing may not be charged with the criminal offense of failure to appear. New

Code: § 62-1C-17b(i).

3. Removal from Law Enforcement Databases After a Capias is Served

When a person appears in court following a capias arrest, the court must notify the sheriff in writing that

the capias is no longer active and should be removed immediately from all law enforcement databases.

New Code: §§ 62-1C-17b(l), 62-2-17(f).

Questions? Contact Sara Whitaker, (304)-610-6391, swhitaker@wvpolicy.org.

“Annual Report FY 2012” (Charleston, WV: WV Regional Jail and Correctional Facility Authority), 31; “FY 2022 Annual Report” (Charleston, WV:

WV Division of Corrections and Rehabilitation, December 2022), 38.

FBI Crime Data Explorer, National Incident-Based Reporting System (NIBRS) details reported in West Virginia, 2012 through 2021. WVCBP

analysis of “Annual Statistics Report on Circuit, Family, and Magistrate Courts” for Fiscal Years 2014 through 2021 and “Annual Report” for

Fiscal Years 2012 and 2013 (Charleston, WV: Supreme Court of Appeals of West Virginia Administrative Office).

Capias Admissions Have Kept West Virginia Jails Overcrowded

Source: WVCBP analysis of Division of Corrections and Rehabilitations

Annual Reports (Fiscal Years 2012 – 2022).