Guilty until proven wealthy

 It’s often said that, in the American legal tradition, a defendant is innocent until proven guilty. Unfortunately, these days, it’s more like guilty until proven wealthy.

I’m talking specifically about the cash bail system. At any given time, as many as 700,000 Americans are locked up in jails. According to the Pretrial Justice Institute, most of these people haven’t been convicted of or even tried for the crimes for which they were arrested.

The reason most of them languish in overcrowded jails has no necessary connection to public safety. It’s because they can’t afford cash bail.

Now, that’s criminal. Specifically, it’s the criminalization of poverty.

As far back as 1964, U.S. Attorney General Robert Kennedy observed that bail had become “a vehicle for systematic injustice.”

In testimony to the Senate Judiciary Committee, he wrote: “Bail has only one purpose — to insure that a person who is accused of a crime will appear in court for his trial. We presume a person to be innocent until he is proven guilty, and thus the purpose of bail is not punishment. It is not harassment. It is not to keep people in jail. It is simply to guarantee appearance in court.”

Things have gotten much worse over the years. The Vera Institute of Justice notes that pretrial detention increased by 433% between 1970 and 2015. It’s probably gotten worse over the past six years.

According to national data, the median bail set for a felony charge is around $10,000, in a country where 40% of the population would have trouble coming up with an unexpected $400. Even if the accused person or the family can raise that money with a bail bond agent, they will lose a percentage of what they coughed up. Many times, the accused will be found not guilty or the charges will be dropped.

The racial bias inherent in this system is glaring: While Black Americans make up 13.4% of the U.S. population, they account for about 40% of Americans in pretrial custody. In any case, we’re overwhelmingly talking about poor and working-class people.

What happens to people held in jail because they can’t afford bail isn’t pretty. It takes only a few days to put people at risk of losing jobs, homes or child custody. Family members — and especially children — can be traumatized. And a lot of bad things can happen in overcrowded jails. The effects can last for generations.

People who can’t afford bail also are more likely to be given harsher sentences or accept plea deals, just to get out at some point.

It’s also expensive to taxpayers. In a 2017 report, the Pretrial Justice Institute estimated that the United States spends about $14 billion “to detain people who are mostly low risk, including many whose charges will ultimately be dropped.”

Even though the Legislature overwhelmingly passed a bail reform bill last year, the jail numbers in West Virginia have increased. As reported on March 15, the population in West Virginia’s regional jails has jumped to 6,135. The actual capacity of those jails is 4,265. This means that regional jails are about 43% over their capacity. Of these, approximately the same percentage is being held for pretrial.

All this occurs in the context of the COVID-19 pandemic, where risk of infections and community spread are high because of the constantly churning jail population. Many have pointed out that a stint in jail for a minor offense could be a death sentence.

It wasn’t always that way. As recently as April 16, 2020, the regional jail population was as low as 4,085 because of steps taken to reduce the jail population to slow the spread of the virus — and there was no spike in the crime rate. But the population rapidly increased again as things returned to “normal.”

Under the 2020 reform bill, judges or magistrates must hold a hearing within 72 hours for people who are incarcerated because they can’t afford bail. Incredibly, a new measure, House Bill 3106, would increase the period someone waits in pretrial for a hearing to 10 days, making a bad situation much worse.

Even aside from the impact on incarcerated people, their families and public health, this would have a huge cost on taxpayers. Counties owe $48.25 per day for each inmate in a regional jail, and at least 10 counties are behind in payments to the tune of millions of dollars. When counties fall behind, the state picks up the difference.

If we use the March 15 numbers reported by the state, there were 2,672 people in pretrial detention, at a cost to counties of $128,924 per day. At 10 days, we’re talking $1,289,240. And many people who can’t make bail are held for weeks and months.

Clearly, HB 3106 would be a step in the wrong direction for all concerned. Rather, West Virginia would do well to continue on the path to reform and ultimately abolish a system that bases personal liberty solely on the ability to pay.

(This appeared as an op-ed in the Charleston Gazette-Mail.)

COVID and jails: stop the spread

CHARLESTON, W.Va. - As the number of COVID-19 cases in West Virginia jails skyrockets, advocates for incarcerated people are urging Gov. Jim Justice to follow recommendations in a new report to curb the spread.

As of December 1, more than 1,150 people serving time and correctional officers have contracted the virus, according to Lida Shepherd - program director with the American Friends Service Committee.

With regional jails at 35% over capacity, she said state officials should reduce pretrial detention and release anyone close to their parole date who isn't a threat to public safety. Those suggestions are in a study by the National Academies of Sciences, Engineering and Medicine.

"An outbreak anywhere reduces our state's overall ability to get this virus under control," said Shepherd. "And so, that's why it's just critical that the governor really take action to prevent them - not just respond to when they happen, but to really prevent them through some of these recommendations."

The state Legislature had passed House Bill 2419 before the pandemic, which aims to reduce the number of people being held pretrial for low-level misdemeanor charges.

But Shepherd said she thinks, even with jails and surrounding communities becoming pandemic hotspots, the new law isn't really being applied.

Not using the new law creates what's known as "churn" in regional jails - where a lot of people are entering for short periods and then exiting, Shepherd said.

"In the midst of a pandemic, that obviously has some pretty dire consequences, as we are now seeing play out in some of our regional jails," said Shepherd. "With the virus being introduced not only necessarily by inmates, people who are coming into the system, but of course, by staff as well."

The report also recommends that people not be reincarcerated for minor, technical parole violations. Shepherd said not only would this help stop the spread of COVID, it could help restore lives and reunite families.

(Note: this news story was published by the WV News Service, a local affiliate of the Public News Service.)

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.

Time to follow up on criminal justice reform

West Virginia’s legislators have grappled with the human and fiscal costs of mass incarceration and prison overcrowding for the past decade.

These efforts include two major studies of the state’s correctional system and several pieces of legislation to address the issues. While there is much to celebrate, several policy measures could be taken to reduce overcrowding in the state’s regional jails and prisons in ways consistent with public safety.

Since these issues are likely to be considered in the 2020 legislative session, it might be good to look back at some of what did — and didn’t— happen.

In 2010, the West Virginia Law Institute submitted detailed recommendations to the Legislature. It found that, “Although the state itself enjoys a history of some of the lowest reported crime rates, it currently has one of the highest increasing rates of prison growth in the country that is marked by insufficient correctional resources, inadequate imprisonment statistics and minimal alternative sanctions.”

The report made several recommendations, including expanding alternative sanctions, such as: community-based corrections; adopting validated measures of assessing risks and needs of offenders; increasing substance-use and mental-health treatment facilities; creating transitional housing for parolees; presumptive eligibility for parole; sentencing reform; improved data collection; and additional research and public education.

In 2012-13, the Council of State Governments Justice Center made similar recommendations after extensive consultations. They noted that, “Between 2002 and 2012, the number of people in West Virginia’s prisons increased 50 percent, with the prison population projected to grow an additional 24 percent by 2018.” Legislation enacting some of the measures was passed in 2013.

Since those studies, the state has made progress in community corrections, risk/needs assessments, alternative sanctions, drug courts and the capacity for treating substance-use disorder. The following additional measures may be worth considering:

*Sentencing reform: According to the Law Institute report, the state “imposes some of the longest sentences in the country, sends to and keeps in prison a much higher percentage of convicted defendants rather than placing them in alternative programs, and maintains various practices that result in more people incarcerated for longer periods of time.”
It called for a review of sentencing for offenses that include robbery, burglary, forgery and uttering, shoplifting, controlled-substance possession, fraud, etc.

Excessive sentencing increases overcrowding and costs but does little for public safety. In fact, it can have the opposite effect. The longer people are incarcerated, the more difficult it is for them to successfully re-enter the community, and the more likely it is that some will commit another offense.

The institute also recommended ending the practice of charging multiple offenses for the same act and making concurrent, rather than consecutive, sentencing the default practice, unless a judge has reasons to do otherwise.

*Early release to community supervision for nonviolent offenders: The 2013 legislation included a provision for the release of nonviolent offenders to community supervision when they reached 180 days prior to the calculated discharge date.

This measure passed the Senate but was removed in the House of Delegates.

It was estimated then that this would reduce the impact of the legislation by one-third. This is a major reason why the legislation wasn’t as successful as it might have been in reducing overcrowding. The 2020 session would be a good time to revisit that missed opportunity.

*Earned time: An additional measure to consider would be allowing inmates to earn time off their sentences by completing appropriate educational and rehabilitative programs, which would improve the hard and soft skills that promote successful re-entry and post-release employment.

*Bail reform: In the 2019 regular legislative session, the deputy commissioner of the Division of Corrections and Rehabilitation told the House Judiciary Committee that, in 2018, counties paid the Regional Jail Authority over $1.9 million to jail individuals unable to post bail of $1,000 or less for misdemeanor charges.

That year, 3,750 people spent an average of 11 days in jail before being released. This amounted to a total of 41,058 days, at a daily cost of $48.25. Decisions regarding the pretrial release of accused offenders should be based on considerations of public safety, rather than poverty.
While technically bail is about jails, rather than prisons, West Virginia’s overcrowding problem is so severe that many people who have been sentenced to prison time are backlogged to even more overcrowded regional jails, which often don’t offer the kinds of programs that make one eligible for parole. This is a dangerous situation for those incarcerated in jails and for those who work in them.

Then there’s this: Keeping people who haven’t been convicted of a crime in jail just because they’re poor separates families, can cause people to lose jobs and fall even further behind economically and makes it harder for them to prepare for their day in court.

*Parole reform: West Virginia should move in the direction of presumptive eligibility for parole, a system in which incarcerated individuals with qualifying offenses are released upon first becoming eligible for parole unless the parole board finds explicit reasons to not release them.

Common-sense reforms like these could go a long way toward addressing crowding problems, saving tax dollars, promoting public safety, easing re-entry and strengthening families and communities.

(This ran as an op-ed in yesterday's Charleston Gazette-Mail.)