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W.Va Jails Still Overcrowded During Pandemic, Despite New Law For Pretrial Release

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Almost 60 prisoners had tested positive for the coronavirus by Thursday at the South Central Regional Jail in Charleston.

As the facility experiences overcrowding – there were 73 more people than reported beds at the Charleston jail on Thursday, and officials say almost 57 percent of the population there was pretrial – advocates for criminal justice reform are once more renewing calls to local courts and prosecutors to incarcerate fewer people. 

One “tool at their disposal,” according to Lida Shepherd with the American Friends Service Committee, is a law that took effect in June, establishing a new process for the release of pretrial defendants facing certain nonviolent misdemeanor charges.

House Bill 2419 calls on judges to release people with eligible charges on non-cash “personal recognizance” bonds, or using methods other than incarceration like home arrest to ensure people charged with certain non-violent offenses don’t skip their own trial.  

If a judge finds cash bail is necessary, the new law prohibits them from charging more than three times the maximum fine for an offense. If a defendant doesn’t qualify automatically for pretrial release on personal recognizance or cash bail, the law requires judges to hold a hearing up to three days after someone is placed in jail, to again consider alternatives to incarceration.

“Since the bail bill went into effect in June, we've actually seen an increase in pretrial incarceration, which is the opposite of its intended effect,” Shepherd said. “We're incredibly concerned about the overcrowded jail facilities... this just has enormous implications for our ability to kind of keep this virus under control in the state.”

Shepherd is part of a coalition of groups, including West Virginia chapters of Americans for Prosperity and the ACLU, which helped pass that law and others dealing with criminal justice reform.

Before the law went into effect in June, staff for the West Virginia Supreme Court of Appeals also issued guidance to local courts in March, encouraging magistrates and public defenders to consider more people in jail for PR bonds or alternative sentencing, like home arrest. 

But several prosecutors and magistrates tasked with implementing the law say they’re upholding their end of the deal.

“Overcrowding has been a problem since the institution of the regional jail system,” Raleigh County prosecutor Brian Parsons said Monday. 

Parsons reported there were 117 people at the Southern Regional Jail in Raleigh County last Thursday, Aug. 13, on charges from his office.

Several employees there have tested positive for the coronavirus at Southern Regional Jail, and the DCR lists two prisoners as having recovered from the virus.

In Raleigh County, Parsons said local criminal justice officials hold weekly meetings to evaluate which defendants are safe to release before their trial, and who, for public safety reasons, must stay in jail. 

“We’re trying to identify people who are in jail and are being held because they’re just financially incapable of securing their own release,” Parsons said. “We feel strongly that you shouldn’t be held incarcerated just because you couldn’t make bail.” 

Prosecutors can ask to reduce a bail amount or use PR bond instead, after a defendant’s arraignment. Magistrates are the ones responsible for determining bail amounts or bond when a person is first arrested and brought to the court.

“If law enforcement arrests them, we have to arraign them -- there’s nothing we can do,” Harrison County magistrate Paul Osborn said. “A police officer’s got to do their jobs.”

Kanawha County magistrate Rusty Casto said he's still seeing just as many substance-related charges now as he did before the pandemic. 

“A lot of people just have mental health issues when they come in here,” Casto said. “You can tell they don’t really need to be in jail, but they shouldn’t really be on the streets. … You just try to do what you think is right on the information you have.”

In Kanawha County, prosecutor Chuck Miller said he’s been advising members of his office against incarceration if defendants awaiting their court dates don’t need to be in jail.

“I’d like to think that we’ve always taken the position that if we don’t think they’re a danger to the public, and we don’t think they’re going to flee to Mexico, leave them out,” Miller said. “We don’t think they’re a risk.”

Although jail populations dropped by nearly 30 percent in March following guidance from the supreme court to local courts, jails have resumed overcrowding into the summer -- nine out of 10 jails were over capacity on Tuesday, and there were almost 5,500 people in West Virginia jails statewide, 1,400 more than there were in mid-April.

Miller said part of the reason he thinks South Central in Charleston is overcrowded is the fact prisoners in Charleston are still waiting for the DCR to move them to prison, after they’ve been sentenced. 

DCR spokesperson Lawrence Messina said on Wednesday 1,800 out of roughly 5,500 West Virginians in jail are waiting to be transferred to prison. At South Central Regional Jail, 160 out of roughly 530 prisoners are awaiting transport. 

The division is holding off on all non-emergency transports, Messina said, to avoid coronavirus spread or exposure.

There are a little more than 300 prisoners, or about 57 percent of the South Central Jail population, who are being held pretrial.

“I’m not sure we have a ready-made solution to overcrowding,” Miller said. “Changing the law ... I think that certainly gave judges and magistrates an easy way out, but the people who are released on PR [bond] and violate the law … what do you do with them?”

Prosecutor Rachel Romano in Harrison County said she thinks House Bill 2419 has made an impact statewide, by streamlining how magistrates determine bond amounts and creating the presumption for PR bonds.

Members from her office, local public defenders and the day report center met weekly prior to the pandemic to reconsider bond and bail amounts for people on misdemeanor charges from Harrison County. 

“It made a difference,” Romano said. “There were certainly individuals on a weekly basis that we could identify as someone who we could lower their bond, or someone who was ready to plead.”

As for the bounce back in jail populations since June, Romano said earlier in the pandemic her office and likely others agreed on PR bonds for people who aren’t getting the same grace now, because they’ve violated the terms of their bond and committed more crimes while on release. 

“In the beginning, we made a very concerted effort, not knowing what COVID-19 was, to get as many defendants on PR bonds as we could. … to reduce the [jail] population,” Romano said. “We still make a concerted effort. But there are some cases we can’t help, we have to argue for incarceration. … We’re only doing our job when we argue for incarceration at that time.” 

The Division of Corrections and Rehabilitation identified 59 prisoners at South Central Regional Jail with COVID-19 on Thursday, according to a press release. There was one additional prisoner with COVID-19 at the Mount Olive Correctional Center in Fayette County, and 16 empoyees statwide who had tested positive for the coronavirus.

The DCR has tested all staff and prisoners at South Central, and the division also placed the facility on lockdown. On Tuesday, the DCR said all of the prisoners with COVID-19 are kept in five out of 24 housing units. 

Emily Allen is a Report for America corps member.

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