This story was updated on April 24, 2020, at 12:30 p.m.
The West Virginia Supreme Court agreed on Thursday to dismiss a request that would’ve required the state to release 39 incarcerated individuals. The request was made by criminal justice reform advocates in response to fears of a coronavirus outbreak in the state’s correctional institutions, which have historically faced overcrowded conditions.
On April 9, the West Virginia chapter of the American Civil Liberties Union announced it had filed the petition with the state’s highest court, calling for the release of 39 specific people from the state’s jails and prisons who the ACLU said would pose no risk to public safety.
The petition was not the only request from a criminal justice-minded group. On March 25, the ACLU and other groups for criminal justice reform called on the governor to order that the state Division of Corrections and Rehabilitation reduce its incarcerated population.
On Thursday, the Department of Military Affairs, which oversees the DCR, reported 4,072 people were incarcerated in jails statewide. According to numbers in the DCR’s response to the ACLU’s petition, that’s 1,115 fewer people than were in the state’s jails on March 13.
Statewide, there are 193 more beds than people in jail. Still, four individual jails remained over capacity as of Thursday.
Prisons, which are different from jails, remained under capacity, according to numbers from DMAPS on Thursday. There were 5,068 people in West Virginia prisons on Thursday.
In the division’s response to the ACLU’s request, attorneys for the DCR said the agency has been, “[l]aser focused on the COVID-19 pandemic and its impact on the regional jails and prisons in West Virginia.” The response highlighted the reductions that already have been made, in addition to a statewide policy for correctional facilities the DCR made public on April 16.
The DCR’s response noted some of the 39 people in the request were not in state custody at the time the ACLU filed its petition. Twelve of the people named in the petition have already been released, while another four were deemed eligible and are preparing for release. One individual was eligible and declined.
“For the ACLU-WV to claim any credit would be a grave disservice to the men and women working tirelessly in the prosecutor and judicial offices across the state,” Messina stated. “DCR will continue to work with local prosecutors and law enforcement agencies to ensure that any reduction in inmate population is done with public safety at its core.”
The response noted facilities are supposed to report daily to DCR officials on implementation of the statewide COVID-19 policy. Under the policy, facilities are required to fill out worksheets assessing their ability to enforce the DCR’s measures and recommendations.
Those worksheets and other policy implementation information have not been made available to the public. When asked about the worksheets last week, Messina said the materials include “policy directives and operational procedures of personnel relating to the safe and secure management of inmates or residents that if released, could be used by an inmate or resident to escape a facility, or to cause injury to another inmate, resident, or to facility personnel.”
Also on Thursday, a U.S. District Judge ruled that the DCR must file some previously confidential court documents — including statements related to the policy's implementation from the DCR's assistant commissioner and the DCR's director of correctional health care — without redactions by Monday, April 27. The Judge agreed the policy that the DCR shared last week may remain redacted.
In a statement, the ACLU notes many of the inmates named in the petition are among those that already have been released. For those still incarcerated, the ACLU says they might file again in a lower court, which the Supreme Court said they could do.
“We had hoped the Court would order all parties to get together and work collectively on the petition to accomplish two things: a necessary reduction in the facilities’ populations and removal of deserving individuals from a high-risk environment,” the ACLU stated. “Jails and prisons are no place to be in a viral pandemic. These crowded, poorly ventilated, and often unsanitary facilities are breeding grounds for disease, making incarcerated people and corrections workers vulnerable to infection. Prison walls will not contain a virus as contagious as COVID-19. This is a public health crisis waiting to happen.”
As more facilities across the nation are reporting a surge in inmates and staff testing positive, including those across the border in Ohio and Virginia, West Virginia remains one of the few where there have been no recorded instances of the virus in a jail or prison.
Emily Allen is a Report for America corps member.