August 26, 2020

Time to get serious about reforming bail

 Early in the COVID-19 pandemic, in the unimaginably distant days of springtime, somebody came up with the slogan “West Virginia: Practicing social distancing since 1863.” It made it to a T-shirt.

There’s some truth to that, although we didn’t prove to be as immune to the disease as it seemed at first. Still, living in a rural state with ample open space made things a bit more bearable for lots of people I know. I have friends in big cities who were cooped up in tiny apartments, experiencing claustrophobia.

We know now that the virus is most dangerous in places where social distancing is difficult or impossible. Known as congregate settings, these are places where groups of people live, meet or otherwise gather in close proximity for limited or extended periods of time. Examples include nursing homes, shelters, prisons, jails, juvenile detention centers, workplaces and schools.

Examples of disease spread in such settings include the recent nursing home deaths in Mercer County and the more than 100 cases reported in the state prison at Huttonsville in May and June.

Congregate settings pose a health risk to those who live in them and those who work in them. Many of these workers, who live in communities all over the state, do difficult jobs with not enough compensation or appreciation for the work they do.

One setting that poses a particular threat to public health is the regional jail system.

A lot of people, including myself, tend to use terms “jail” and “prison” interchangeably, but they’re very different. Usually, a jail is a place for detaining people serving relatively short sentences or awaiting trial, while prisons confine those already convicted and sentenced, generally for longer periods of time.

However, that definition gets blurred in West Virginia. For years, prisons here have been so overcrowded that hundreds of people who are supposed to be serving their sentence in a state prison wind up backlogged in overcrowded regional jails. A big difference is that jails don’t offer as many programs or educational opportunities that people might need to complete to be eligible for parole.

According to the West Virginia Center on Budget & Policy, the average jail population in West Virginia increased by 30% between 2010 and 2019, despite a declining population and dropping crime rates for many offenses.

Jails are particularly prone to becoming COVID-19 hot spots because of the constant churning of populations, as so many people wind up there for minor offenses.

It’s important to remember that more than half of those confined in regional jails haven’t been convicted or even tried for the offenses for which they were arrested.

With a cash-based bail system, that comes down to money — or the lack thereof. Many people are in jail not because they’re a threat to public safety, but because they can’t afford to get out.

In a time of pandemic, they’re at risk of a death sentence for being poor.

It doesn’t have to be that way. Earlier this year, the West Virginia Legislature passed House Bill 2419, which encouraged judicial officers to release people charged with certain offenses on personal recognizance bonds, impose the “least restrictive bail conditions determined to be reasonably necessary to assure appearance as well as ensure the safety of person in the community,” limiting the amount of bail imposed, and requiring a hearing within 72 hours of the first appearance of the accused in court, if they are unable to make bail.

There has been a growing awareness across the political spectrum that the consequences of even a few days in jail can be dire for families and communities: loss of income, jobs, child custody and housing.

Then there’s the cost to counties of about $50 per inmate per day. Further, evidence suggests that people confined before trial are more likely to be convicted and sentenced to longer jail or prison terms than those released.

That bill passed before the pandemic really hit the United States. The stakes for reducing the jail population are even higher now. It went into effect in June, although, unfortunately, so far, it doesn’t appear to have had the intended effect of reducing the jail population.

In late March, the West Virginia Supreme Court issued guidance to lower courts to “identify any pretrial individuals who do not constitute a public safety risk and may be appropriate candidates for [public recognizance] or reduced bond” and to balance “the safety of the public and victims, whether PR or reduced bonds are appropriate to address concerns related to COVID-19.” In some cases, police officers were encouraged to issue warnings or citations, rather than make arrests.

It worked. Between March 2 and April 20, the population in regional jails dropped from 5,200 to 4,108, a 21% decrease. Incarceration of pretrial detainees dropped from 2,685 to 1,842, a 31% drop.

More to the point, this drop in confinement wasn’t followed by a spike in the crime rate, which demonstrates that it’s possible to reduce pretrial detention without compromising public safety.

Unfortunately, the numbers began creeping back up as things returned to something like “normal,” whatever that is these days. Now, the regional jails are about as crowded as they’ve ever been — sometimes more.

That needs to change. It never made sense to criminalize poverty. It makes even less sense to do so in the context of a catastrophic health and economic crisis.

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