Gov. Jim Justice in a news conference regarding the latest spike in COVID-19 cases, now famously said, “I don’t know what else I can do.”
To give credit where credit is due, starting in March Justice has shown a willingness to listen to public health experts and take proactive measures to prevent the spread of the virus.
However, for the thousands of people who are incarcerated or who work in state correctional facilities — all of whom are at elevated risk of sickness and death from COVID-19 — there are many responses that have not yet been taken by the governor and state officials that would help prevent more outbreaks.
Incarcerated people are infected by COVID-19 at a rate more than five times higher than the nation’s overall rate, due largely to the fact that social distancing necessary to prevent the spread of the virus is virtually impossible in overcrowded facilities.
As of this writing, according to the West Virginia Department of Health and Human Resources COVID-19 website, there are 254 positive cases of COVID-19 in the Stevens Correctional Facility in McDowell County, which means 64% of the prison inmates have contracted the virus. Statewide, there are 58 employees of Division of Corrections and Rehabilitation who are currently positive for COVID-19.
Our state’s regional jails are 35% over capacity, and what’s worse is that nearly half of those incarcerated are pre-trial, meaning they have not been convicted of any crime but, more likely than not, are too poor to come up with the bail money to purchase their freedom as they await trial. This has dire and potentially fatal consequences for these individuals and their families.
To put this problem in perspective, and also as cautionary tale, a recent report by the University of Texas at Austin found that 80% of those who had died from COVID-19 in Texas jails had not been convicted of a crime but were incarcerated pre-trial.
According to public health and safety experts in their October report, “Decarcerating Correctional Facilities During COVID-19,” commissioned by the National Academies of Sciences, Engineering and Medicine, state officials can prevent outbreaks and deaths if they take action to reduce incarceration.
The first recommendation is to reduce “churn” in regional jails by law enforcement officials using their discretion to divert individuals from incarceration through citations in lieu of arrests.
Additionally they recommend judges and prosecutors adhere to “strong presumption against pretrial detention” through issuance of personal recognizance bonds.
Prior to the pandemic in early March, the state Legislature, wanting to reduce county jail bills, passed House Bill 2419, which instructs magistrates to grant personal recognizance bonds for low-level felony and misdemeanor charges “unless for good cause shown.” To date, even with correctional facilities and their surrounding communities becoming COVID-19 hot spots, there is little indication the new law is being applied.
The report also stresses the need to expedite release for people who are nearing the end of their sentence or are medically vulnerable, and who pose no threat to public safety.
According to data from the West Virginia State Parole Board, between March 3 and May 2, 389 people were granted parole, while 438 were either denied or deferred parole, meaning that the majority of people who were parole eligible were not released.
One way to expedite more releases would be the governor empowering the DOCR commissioner to work with staff to identify individuals who are parole eligible or within a year of parole eligibility, who are deemed low risk for reoffending, and see to their release.
The report also recommends that probation and parole policies be revised to “greatly limit revocation for technical violations,” and instead direct that only when a new crime is committed should parole or probation be revoked.
Last but not least, the report underscores the importance of reentry support to ensure people’s safety and well-being after release. Even in non-pandemic times, reentry is tremendously challenging for those who don’t have resources for housing, transportation and food.
Pile on lack of employment opportunities during a global pandemic while saddled with a criminal conviction, and one can imagine how crucial it is we invest in reentry, especially transitional housing.
As inspiration, other states have safely reduced their prison and jail populations. Most recently in New Jersey, Gov. Phil Murphy and the state legislature worked together on legislation that allowed for the release of over 2,000 adults and juveniles with qualifying offenses who had a year or less left on their sentence.
Why not here?
When leaders of our state realize the urgency to reduce incarceration during this pandemic, lives will be saved.
Then beyond this pandemic, if we take bold steps for criminal legal reform and reinvest the $250 million we spend annually on adult and juvenile incarceration, we will see lives restored and families reunited.
And we can look back and know West Virginia was on the right side of history, as we put our country’s failure of mass incarceration behind us once and for all.
(This ran as an op-ed by AFSC's Lida Shepherd in the Sunday Gazette-Mail.)