Skip navigation
× You have 2 more free articles available this month. Subscribe today.

West Virginia Supreme Court Orders Prison Officials to Develop Good-Time Credit Policy

by David M. Reutter

On October 16, 2023, the Supreme Court of Appeals of West Virginia reversed denial of mandamus relief to a prisoner and compelled the Commissioner of the state Division of Corrections and Rehabilitation (DCR) to “develop a policy directive and/or operational procedure that is in compliance” with a statute establishing “good-time” sentence credits adopted by state lawmakers five years earlier.

Now codified at W. Va. Code § 15A-4-17(i), that 2018 law provided “extra good time for inmates who perform exceptional work or service.” But two years later, DCR had a written policy in place only for one half of the law—the part providing prisoners “may receive up to 90 days good time per program for successfully completing an approved, but not required, academic or vocational program, which is not part of the inmate’s required individualized reentry programming plan.” There was no written policy in place for the other part of the law, providing a prisoner “may receive extra good time in the sole discretion of the Commissioner for meritorious service or performing extra assigned duties during emergencies.”

Prisoner Aron Freeland filed a writ of mandamus on October 7, 2020, seeking to force DCR Commissioner William K. Marshall to write the second policy. The Court appointed counsel for Freeland and held a hearing on December 15, 2021. At issue was a sentence in the second subdivision stating, “The Commissioner shall adopt a written policy to effectuate the purposes of this subsection.” Freeland argued that the term “subsection” applied a “mandatory duty” to promulgate policy for both of its subdivisions. But DCR Commissioner William K. Marshall countered that it didn’t apply to the discretionary award of credits because that power rested in the Commissioner’s “sole discretion.” The Circuit Court for Kanawha County agreed and denied the petition on January 13, 2022. Freeland appealed.

The Supreme Court of Appeals found the text of § 15-A-4-17 is plain: The word “shall” in the last sentence of (i)(2) imposes a mandatory duty upon the Commissioner to adopt a policy effecting the purposes of “this subsection.” It then turned to the parties’ contrasting arguments as to what constitutes “this subsection” and concluded that it “necessarily includes the entirety of subsection (i), that is, both of its subdivisions (i)(1) and (i)(2).”

“If the Legislature had meant to limit the Commissioner’s duty only to subdivision (2),” the Court explained, “then the final sentence of [W.Va.C.] § 15-A-4-71 would have read ‘[t]he Commissioner shall adopt a written policy to effectuate the purposes of this sub[division].’”

The Court also found that the Commissioner’s argument—that a ruling in the prisoner’s favor would usurp the Commissioner’s authority—misconstrued Freeland’s case. He did not argue that the Commissioner must award additional gain-time; rather, he argued only that the Commissioner must promulgate policy to implement (i)(1) and (i)(2). The Court agreed, finding also that Freeland had no other adequate remedy at law.

The circuit court’s order was therefore reversed and the case remanded for further proceedings. Before the Court, Freeland was represented by attorney Edward L. Bullman of Bullman and Bullman in Charleston. See: Freeland v. Marshall, 895 S.E.2d 6 (W. Va. 2023).  

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Freeland v. Marshall