The Human Cost Of Bail
Lisa Hartline grew up in Parkersburg. Today, she is an attorney at Legal Aid of Pennsylvania representing people who can’t afford a private attorney because she used to be one.
“I think I’m more willing to make exceptions when maybe clients aren’t following the plan that they need to follow because I know what it’s like,” she said. “They know how hard I’ll fight for them because I know what it’s like to be in their shoes.”
She knows what it’s like to sit in front of a judge in both a pants suit and a jail uniform. I drove to Washington, Pennsylvania, where she lives to speak with her about her experiences while she was incarcerated.
Hartline lives on the ground level of a duplex, near Washington and Jefferson College. Uplifting messages like ‘you got this’ hang on decorations in the bathroom and portraits with abstract shapes and colors of people and landscapes from tropical areas like the Caribbean hang on the walls. She shared stories with me, both good and bad, about how she became incarcerated.
She told me about a night in 2006 when she was arrested in West Virginia after her boyfriend sold drugs to someone wearing a police wire.
“When the doorbell rang, he made me go answer the door. So I answered the door, let the person in. And I went into the bedroom and wasn't present for anything else after that,” she said.
Hartline said the police did not see the couple leave the house. It wasn’t until hours later that they found them at a convenient store.
“It was like hours later, all of a sudden, the police swarm on us. Apparently, they didn't see us leave, and somehow missed us. They had the building surrounded,” she said.
She was charged with possession with intent to distribute and her bond was set for $20,000. She knew she hadn’t been present for any kind of transaction, so she fought the charge and insisted on a preliminary hearing.
The police dropped the possession with intent to distribute charge and instead charged Hartline with a conspiracy charge and raised her bond to $50,000.
“Which makes no sense because the purpose of bond is just to ensure you appear in court,” she said. “Well, if I couldn't get out on $20,000, why would you need to increase it to 50 for a lesser charge?”
Because Hartline could not afford the $50,000 set for her, she spent the next four and a half months in North Central Regional Jail in Greenwood, West Virginia, and another year in home confinement before the charges were dropped due to a lack of evidence.
Hartline said it’s usually more difficult to negotiate a fair bail amount when someone can’t afford a defense attorney.
“So basically because I had a public defender, and they're overworked. That's the difference between people with public defenders and those who can pay for attorneys is you end up having to do a lot of the work yourself because they don't have the time,” she said.
"I was trying to come up with an alternative to sitting in jail for a crime I had not only not been convicted of but knew I didn't commit and knew they had no evidence that I committed that crime and if and when it finally went to court, I would never be convicted," she added . "It felt even more unfair because I knew there were crimes I did commit during my use, not anything serious, they were all drug-related . But to go to jail for something I knew I didn't do just felt so wrong.”
Hartline is no stranger to the criminal justice system. She spent a fair amount of time in and out of North Central and South Central Regional Jail for tax fraud and other drug-related crimes. Her longest stint incarcerated was almost a year and a half.
During her various stints incarcerated, she said her bond was typically set around $10,000. A bond is an amount of money a judge or magistrate decided Hartline needed to pay in order to be released from jail and await her trail at home. She had been arrested and accused of a non-violent crime, but had not been found guilty yet, and the trial date can sometimes take days to set.
“Usually it was around $10,000, which we all know I can't afford $10,000. Most people can't afford to just hand over $10,000, especially those who end up in the criminal justice system," Hartline said. "And so you would have to resort to a bondsman and pay 10 percent was the only way you could get it.”
When you’re arrested in West Virginia, you’re taken to a regional jail. There are 10 throughout the state and they make up the Regional Jail and Correctional Facility Authority, a part of the Division of Corrections and Rehabilitation. The judge or magistrate sets bail depending on the crime you’re accused of. Once it’s set, the accused person––or someone else––can pay the entire amount in cash, or pay a bail bondsman 10 percent of the total amount. In Lisa’s case, she would have had to pay $5,000 in 2006 when she was charged with conspiracy.
The bondsman holds authority in the courts, so once they receive 10 percent of the bail, they sign the bond, guaranteeing the person accused will show up for court. If not, then it's the bondsman's responsibility to get that person to court. Once paid, the person is released.
If you pay the full bail to the court, you get most of the money back after all your court appearances, whether you’re found guilty or not and after court fees. If you use a bondsman, they keep the 10 percent as a fee. In any event — the whole point of bail bonds are to motivate people to show up for trial, rather than run away. Judges can also decide that a person is trustworthy enough to return for trial without setting a bail amount and release them on their own recognizance.
There is not a lot of state or national data that informs how often people show up for trial. In 2019, the Pretrial Justice Institute studied 91 jurisdictions and found that 63 percent of jurisdictions surveyed either did not collect data on court appearances or did not know whether they did. However, in Mecklenburg County, North Carolina, researchers found that court appearance was above 80%.
Numbers from different states may not be comparable. But conditions remain the same. If you aren’t released on recognizance and can’t afford bail, you have to wait for your trial in jail. Researchers with the Brookings Institute say that people accused of felonies who can’t afford bail usually wait two to six months in jail.
But in West Virginia, nobody is measuring the average stay in jail before trial for someone accused of a felony.
So much of Hartline's motivation to be a legal aid attorney is wrapped up in that experience of having to figure out how to advocate for herself, in lieu of literally any other option.
“I had to get creative and come up with some kind of solution myself,” she said. “Whereas had I been paying an attorney who was working by the hour for a higher rate of pay, they would have done the legwork. So there's a big difference when it comes to finance, indigent inmates and those with money, when it comes to things like that as well.”
Hartline had no other choice, but to wait in jail for four-and-a-half months because she could not afford the $50,000 bond assigned to her.
High bond is not an issue unique to her.
In fact, so many justice organizations believed bail was responsible for jail overcrowding that a number of states began to work on bail reform to decrease that population.
In 2018, there were, on average, about 5,000 people in West Virginia regional jails per month. That’s up about 30 percent since 2010. In early March of this year, the regional jails were overcrowded by about 1,700 people. At that same time, about two of every five folks in jail were just stuck there because state prisons were full to capacity.
In 2020, West Virginia legislators tried to follow the national trend of reforming the bail system when the legislature passed a bill to limit bail for certain nonviolent crimes. The hope was to reduce the number of people in regional jails. This bill, HB 2419, called for judges to release certain nonviolent offenders out on personal recognizance bonds. It passed with an overwhelming majority, 79 to 21.
That means, if a person is charged with a certain, nonviolent misdemeanor offense––like driving with a suspended license or a public indecency charge––then a judge or magistrate should assign the lowest amount or should use discretion to release that person until their court date, unless they’re proven to be a risk to society.
Some interpret the bill as applying to certain nonviolent felonies, too. In that case, the judge who holds jurisdiction where the crime occurred will decide whether or not to release the accused person. The bill doesn’t apply to violent crimes, if the victim is a minor, serious drug crimes, sexual abuse or a serious traffic violation.
The heart of this law is to alleviate the disproportionate effect of bail on people living in poverty and to decrease the jail population by allowing more people to make bail.
The bail system disproportionately punishes people living in poverty, according to Devon Unger, a staff attorney at the West Virginia Innocence Project, who was a former public defender in Harrison County and a former private defense attorney.
“It's poor people, it's people who just do not have access to, you know, cash or credit or property. You know, these are the ones who you know, cash bail effects because if you have money if you have property, if you have resources, you know, you're able to meet the requirements and get out of jail,” he said.
As a child, Hartline didn’t have much growing up. Her parents divorced when she was very young and her mother, the sole provider of income, often worked two jobs just to pay the bills. At 16, Hartline found out she was pregnant. She married the father and together they had two more children.
Hartline said the poverty in her family wasn’t uncommon in the area she grew up in.
“There were so many poor people in that area that like the local convenience stores would buy big bags of diapers and like cut them in half and sell them for a reduced price because they knew people sometimes only had a few bucks and needed diapers, and you couldn't buy a pack for that” she said.
Hartline describes her life at that time as one continuous dead-end.
In 1996, Hartline and her husband were arrested for submitting fraudulent taxes to the IRS. Her sister adjusted the couple’s joint taxes so that they could receive a larger refund. Eventually, her sister was caught, and at 21 years old, Hartline was charged with six months of home confinement.
She had to repay the money she owed and serve five years of probation. During that time, she tried crystal meth at a party and became addicted to the drug. She failed a routine drug test that was part of probation. As a result, she spent four months in South Central Regional Jail in Charleston.
“The feds came to town and pretty much cleaned out all of the manufacturers of that," Hartline said, referring to crystal meth.
Over the next few years, a lot changed in her life. She divorced her husband, was arrested multiple times in Parkersburg for various drug crimes and entered treatment for her substance use disorder. During that time, she began dating another man who sold crack cocaine––the same man who led to her arrest in 2006. Eventually, she tried the drug and fell into another vicious cycle of substance abuse.
“I just thought, oh, that's the worst drug to ever do. So to have done it was crazy, but it's true what they say that you can get hooked just using it one time, and it was just downhill from there,” she said.
I asked Hartline to describe her experience during her four and a half months in North Central Regional Jail in Greenwood while she waited for a trial that would never come.
“Basically, you're always pretty much at least two people in a cell. And these cells are made to be for one person, there's one bed, if you call it a bed, it's a concrete slab that is attached to the wall, and you get like one of those old gym mats you used to use in school. And that's your mattress. And there's a toilet with a sink on top of it and some hooks on the wall to hang like towels and stuff,” she said.
Hartline said there’s little privacy in jail cells.
“The light never goes out completely because they have to be able to count you at all times throughout the night to check on you,” she said, “so you have to learn to sleep with the light on and of course you're locked in. It's really tiny. It's all concrete floors, concrete, brick walls, steel doors, everything is bolted down, you can't move anything.”
She said her time in jail created a lot of anxiety because there is nothing to do and no place to go all day long.
“I would walk around in a small circle around the width of the pod from morning till night because I had so much pent up energy. And I would do it in my socks. And I'd wear holes down through my socks, like from walking so much just because it's just so awful,” she said.
A report from Reuters found that West Virginia jails had the highest death rate of the 500 jails studied. Between 2009 and 2019, 111 people died in West Virginia regional jails––a rate 50 percent higher than the national average. More than one fourth of those deaths were from suicide.
However, it’s important to note that officials at the West Virginia Division of Corrections and Rehabilitation say the claim that the state’s jails had the highest death rate in the United States isn’t accurate because of the number of jails and jail deaths left out of the report.
Lawrence Messina is the director of communications for the West Virginia Department of Homeland Security, which oversees the DCR. I tried reaching out to him but he denied my request for an interview. He is on record with the Charleston Gazette Mail saying, “West Virginia only has 10 jails, so 100 percent of its data was included, but for the other states, this approach excluded more than 2,600 jails, along with more than 3,300 inmate deaths just from 2008 to 2016.”
The time Hartline spent in jail took a toll on her. After four-and-a-half months, rather than pay bail, the circuit judge allowed Lisa to be released to the Clarksburg Mission where she would be held under home confinement for a year.
After a year, the court dropped the charges due to a lack of evidence, so after a year and a half, Lisa was released without ever being convicted of a crime. When she was released from home confinement, she said so many of her belongings were stolen from her house.
“When I got out there was nothing left at my house — like people had taken everything because they knew I was in jail,” she said.
“So I had to start from scratch with just the clothes on my back. And in a new city out of place, I didn't really know anybody that well. But that was the price, you know, I had to pay, to be able to make bail because they refuse to lower it at all”
If this would have happened to Hartline in 2021, after West Virginia’s bail reform bill became law, would the magistrate have decided that $50,000 was too much and reduced it to an amount she could have paid? Well, it depends on the county you’re in.
Quenton King, a policy expert at the West Virginia Center on Budget and Policy, says the new law hasn’t changed a single thing. One of the main reasons for that, according to King, is the lack of comprehensive data collection on who is going to jail for what crimes.
“The only thing that we see are the total number of people in jails on any given day, and so it just has your pretrial felon, your pretrial misdemeanor and we see the number is either staying the same, maybe increasing, maybe decreasing, but in general, it’s barely moved, the pretrial number since June,” he said.
There is no county data collection either, so researchers and legislators are unable to tell which counties the law is helping and which need more help.
“Another problem is I don’t know which magistrates are doing it well. It’s very possible that judge A in Jefferson County saw the law and saw the policy change whereas judge B might ignore it, not know about it or not care, and just keep doing what they were doing before, or worse,” King said.
West Virginia jails are still overcrowded even in a time when many jurisdictions around the country are reducing the incarcerated population to keep COVID-19 from spreading.
Of the jails that are overcapacity, Southern Regional Jail and North Central Regional Jail were the worst at nearly 63 percent in early March. About four months later, on July 29, there were 5,420 people in jails, which was 1,155 people over capacity. North Central Regional Jail, for example, has space for 564 people and had 854 incarcerated that day.
So, why isn’t the bill even doing what it was designed to do? Or, has the problem become too large to control? Is the state’s bail system broken, or is it operating in the way it was designed to? What about bondsmen? How would reforms affect business? I’m going to try to answer those questions and more in the episodes to come.