Bluefield Daily Telegraph, Bluefield, WV

West Virginia State News

March 25, 2012

Time fit for the crime? County, state officials: Issues exist with prison sentences in W.Va.

PRINCETON — By

Bluefield Daily Telegraph

PRINCETON — The arrest of a convicted felon for a recent homicide in Princeton has many people asking how much time criminals are really doing for their crimes?

Gerald Wayne Little, 60, of Wyoming County, was arrested last Tuesday and charged with first-degree murder for the March 1 stabbing death of Jerry Buckner of Princeton. Buckner died after being stabbed multiple times in the neck.

Little is not a new face West Virginia’s criminal justice system. He was previously convicted of voluntary manslaughter in Wyoming County. “I left that courtroom knowing Gerald Little would kill again,” Wyoming County Prosecuting Attorney Rick Staton said, discussing Little’s manslaughter conviction. “I thought he’d kill someone while he was in prison. This was a brutal crime. Brutal and bloody.”

When Little came up for parole, Staton sent comments to the parole board describing him as unremorseful, uncooperative, arrogant and belligerent.

Adding notes in a comment section on a “fitness for parole” form, Staton wrote, “Mr. Little was convicted on a voluntary manslaughter charge. A poll of the jury showed it would have convicted him of 1st degree if it had been allowed to here [sic] 404(b) evidence of prior acts and prior incidendents [sic] with the decedent. This was a brutal crime in which the decedent was cut to pieces and buried in a landfill.”

Little had also been previously charged with kidnapping and sexual assault in Raleigh County, Mercer County Prosecuting Attorney Scott Ash said.

The kidnapping and sexual assault charges “were pled down to first-degree sexual assault,” Ash said, noting all of these charges “were within the past decade.”

Staton was unaware Little had been paroled until he learned of his arrest in Mercer County last week. “I was actually surprised — surprised he was paroled so early given the murder and rape convictions. Not surprised he had been arrested.”

•••

Little is not the only local felon previously convicted of sexual assault and murder arrested in recent months.

Floyd Bennett Jr., of the Matoaka area, was arrested on Feb. 14 on malicious wounding charges in Wyoming County for allegedly stabbing his brother, Basil E. Bennett, 48, multiple times during an argument the night before.

In 1984 Bennett was convicted of first-degree sexual assault on an adult female and served 10 years in prison. Years after his release, he was arrested and charged with first-degree murder for the June 3, 2002, murder of Barry Miller on Arista Mountain. Bennett was found guilty of the crime and, in September of 2003, was sentenced by Mercer County Circuit Judge Derek Swope.

Court documents show Swope ordered that Bennett be “confined for the remainder of his natural life without the possibility of parole ...”

The verdict was later reversed by the West Virginia Supreme Court because some “instructions were not given” during the trial, Ash said.

In December of 2008, Bennett entered a plea bargain agreement for the murder of Miller. He pleaded guilty to second-degree murder and was sentenced “to a definite term of imprisonment of 15 years,” with appropriate credit for time served.

•••

On the same day Gerald Little was having his bond set for murder, Dewey Dewayne Gilley, 45, of the Matoaka area, was also at the Mercer County Courthouse for a hearing. Gilley’s court date involved a charge of failure to register as a sex offender.

Prosecuting Attorney Ash said Gilley had been convicted of third-degree sexual assault in Mercer County. In an unrelated crime, Gilley had also pleaded guilty and served time for a murder charge.

Court documents show Gilley pleaded guilty in 1987 to the October 1981 murder of Janice Short. Gilley was 15 years old at the time of the murder, but he was adjudicated as an adult. Gilley pleaded guilty to second-degree murder and was sentenced to five to 18 years in prison.

In his plea bargain agreement, Gilley was asked to describe his participation in the crime. He wrote: “I asked Mrs. Short for $5 and she said no. I got mad and shot her with a 440 shotgun.”

•••

The amount of time prisoners serve behind bars in West Virginia is set by the courts, state statute, and parole boards, according to Division of Corrections Commissioner Jim Rubenstein.

State code mandates that prisoners receive one day off their sentence for every “one day of good time,” he said.

The only prisoners excluded from this are those who have received a life sentence with mercy. “With this sentence there is no good-time application,” he said. “The only way to be released is to be granted parole.”

Rubenstein said an individual sentenced to one to five years would be eligible to go before the parole board in one year. At that point, the prisoner could, or could not, be granted parole. If the inmate “kept his nose clean and was not granted parole” he could still be out in two-and-a-half years, with good behavior taking the additional time off his sentence.

Individuals sentenced to life with mercy are not eligible for “good time,” but can go before the parole board in 15 years. Those sentenced to life without mercy “would be incarcerated indefinitely, and not be eligible to see the parole board,” he said. “You would serve the rest of your natural life with the Division of Corrections.”

A court order can change a sentence, Rubenstein said, but other than that “we’re just adhering to the letter of the law.”

•••

Prosecutor Ash said West Virginia “could use some clarity in sentencing reform” so that minimum and maximum sentences are more defined.

“What’s been done in West Virginia is not a matter of logic,” he said. “They’ve just added on to sentences and parole and probation statutes. It’s a matter of history and not logic. Sometimes it’s difficult for us to know how much time a person would be eligible for without doing legal research.”

Ash said the history in some cases “goes back to the mother state of Virginia ... they’ve added on and refined (the statutes) over the years.”

Now, there is no parole in Virginia, Ash said, noting the Commonwealth practices “honesty in sentencing.”

“No one gets parole,” Ash said, explaining the process in Virginia. “What they’ve done, is the judges basically act as the parole board. An individual may be sentenced to 10 years, but then the judge may suspend part of the sentence. .

“They’ve moved the function from parole board to the judge,” Ash said.

Discussing West Virginia’s sex offender registry law, Ash described many of the cases as “frustrating.” The law “has proven to be more difficult to rationally enforce than you would think, from the beginning.”

Ash said the law “is inadequate for some people who are attempting to actively get around the law, and for others it’s like squashing a grape with a redwood.

“A fellow comes in and says I bought a car 11 days ago and gets arrested — he only has 10 days (to register the new car). A lot (of sex offenders) are trying to comply, but it’s too technical,” Ash said, noting many of these offenders have a low intelligence.

Ash recalled that a judge once asked, in all seriousness, if a coloring book detailing sexual offender registration rules could be developed to “teach folks at that level.”

Looking at all crimes, Ash said there are many good reasons to give judges alternatives when it comes down to sentencing.

“You can’t micro-manage the courts from (Charleston),” Ash said. “It’s good to give judges the tools (day report, drug court, home confinement) and trust them to implement them. Ultimately you have to trust the judges to be able to shape the penalty that will address the community’s interests, the criminal’s interests and the interests of the taxpayer in an efficient end. Locking them up sounds great, but there’s tough on crime and there’s smart on crime. The judge is the person, the man or the woman, who is in the best position to know what is required in a particular case.”

•••

Sen. H. Truman Chafin, D-Mingo, who also represents a portion of Mercer County, described the cases of convicted murderers and sex offenders being out of prison as “totally shocking.”

“Drug use is, by far, the biggest reason for overcrowding in our prisons,” Chafin said. He noted prisons don’t have rehabilitation and other tools to fight the addiction. “They don’t have psychologists to treat the disease, and the first thing they (inmates) do when they get out is get high again.”

While Chafin believes treatment is necessary for drug-addicted inmates convicted of lesser crimes, he advocates for imprisonment of violent offenders, such as the three local offenders detailed here.

“Those are the kind of people that definitely need to be locked up,” Chafin said. “They should be locked up forever.”

Wyoming County prosecutor Staton is frustrated by comments he repeatedly heard during the recent legislative session. “When people talk about ‘prison reform’ or ‘relieving prison overcrowding’ those are just buzzwords for releasing felons early, and that decision needs to be made by the local community and people who interacted with these individuals — the prosecutors, the investigating officers and judges. When a judge makes a decision, good or bad, that should be given significant weight by the parole board or Division of Corrections. We are the ones who interacted with them and know the community and officers’ sentiment about a particular criminal.”

Staton believes lawmakers are ignoring the fact that they are going to have to build a new prison. “I know it will cost $200 million, but we have to have a place to put these people.”

Drug treatment for incarcerated offenders is also needed, he said. “You’ve got drug addicts in the regional jail and they’re not receiving treatment because the regional jail is not equipped. They are being released back into society as untreated addicts and they go back to their old ways, and the cycle starts again.”

Staton also noted that lawmakers bemoan the problem of prison and jail overcrowding, yet continue to consider making more acts illegal. A measure studied during the last session would have made putting graffiti on buildings illegal. “I told them, do not make crimes and then complain when we put people in prison for them.”

Chafin said he will bring up the issues and problems with prison sentences at the West Virginia Legislature’s next interim meeting.

•••

Gerald Little, Floyd Bennett Jr. and Dewey Gilley are currently behind bars at the Southern Regional Jail.

— Contact Samantha Perry at sperry@bdtonline.com

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