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.)

Pandemics and prison overcrowding are a recipe for disaster

 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.)

A time (and place) to test

 One of the populations most at risk of COVID-19 infection are people held in jails, prisons, and juvenile detention centers and those who work there. In such institutions, social distancing is impossible.

In addition to working with allies to reduce the number of West Virginians in confinement, AFSC in WV signed on to a letter to state officials urging that universal testing for the virus be made available to all detainees and workers in the system. This is particularly urgent because a significant percentage of those with the virus show no symptoms--and since outbreaks in one setting can easily spread to the community at large.

Please feel free to share the contents of the letter and to urge state officials to take appropriate action. Here's the letter:

Monday, April 27, 2020 

Dear Governor Justice, Commissioner Jividen, and Secretary Crouch:

As the COVID-19 crisis continues in West Virginia, so does our concern regarding its impact on those behind bars or otherwise detained in congregate settings across the state. Many West Virginians are extremely worried about loved ones of all ages who are incarcerated in jails, prisons, juvenile detention facilities and other out of home placements, where following social distancing guidelines is nearly impossible. The same is true of those who work in these facilities, their families and communities. We, the undersigned, share their concerns.  In fact, we would go even further to stress that what occurs in those settings can impact all West Virginians.  It is clear to all by now that prisons, just like nursing homes, schools, colleges and other locations that you have worked hard to address are at heightened risk, which then can adversely impact the general population.
  
We highly commend state leaders such as yourselves for taking effective measures to stop the spread of the disease. However, the recent news that a correction officer has tested positive raises disturbing possibilities.  Given the very high risk for this population and for the thousands of West Virginians connected to it in one way or another, we are writing to request that the state make universal testing available to all people detained or employed in these facilities as testing supplies become more available. Since studies indicate that many people who have and can spread the virus are asymptomatic, this is the surest way to identify cases of infection and to allow authorities to take appropriate measures in the interest of all West Virginians.

This would be consistent with federal guidance for the use of the CARES Act, which states that funds can be used for "costs of providing COVID-19 testing, including serological testing" as well as "COVID-19-related expenses of maintaining state prisons and county jails, including as relates to sanitation and improvement of social distancing measures, to enable compliance with COVID-19 public health precautions.”

Further, because of the vulnerability of this population, it is imperative that West Virginia provide robust transparency with regards to COVID-19 testing occurring in our corrections system. Other states like Florida, North Carolina, Ohio, Oklahoma, Texas, and Virginia publicly
report not only the number of positive cases in correctional facilities, but also the total number of tests performed as well. We’re asking that this information be made publicly accessible.

Ongoing forthrightness about COVID-19 testing and results within the prison system will maintain the public trust in our health and law enforcement officials. Transparency will similarly put incarcerated individuals and their families at greater ease.

Limiting the spread of COVID-19 in high-risk environments like our prison system is imperative for the health of incarcerated individuals, correctional staff, and our communities as a whole. The more incarcerated individuals and correctional staff that need treatment at local hospitals, the greater the strain will be on our health care system’s capacity.

The organizations listed below represent a diverse cross section of West Virginians supporting this request. We thank you and those who work with you for your service in this difficult time and look forward to your response.

Sincerely,

Americans for Prosperity
American Friends Service Committee
 WV Council of Churches
WV Access to Justice Commission
Catholic Diocese of WV
 American Civil Liberties Union-WV
Our Future WV
WV Center on Budget and Policy
Appalachian Prison Book Project
Mountain State Justice
NAACP – Jefferson County

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.)

Needed: a real second chance

One of the biggest victories in the last WV legislative session has the passage of Senate Bill 152, which allows for the expungement of some misdemeanor and felony convictions. Recently, the New York Times reported on a Michigan study of what that can mean to people.

Here's the good news:

"...people who get expungements tend to do very well. We found that within a year, on average, their wages go up by more than 20 percent, after controlling for their employment history and changes in the Michigan economy. This gain is mostly driven by unemployed people finding work and minimally employed people finding steadier positions."

and:

"...contrary to the fears of critics, people with expunged records break the law again at very low rates. Indeed, we found that their crime rates are considerably lower than those of Michigan’s general adult population. That may be in part because expungement reduces recidivism."

The bad news was that only small percentage of eligible people actually got the expungements, as in around 2,500 out of possibly hundreds of thousands. Also, they took a long time to get. Only 6.5 percent got them within five years of becoming eligible.

We've had experiences like that here, where legislative or policy victories don't reach as many people as we'd like. The takeaway is that the process needs to be as simple as possible and that people need to know they are eligible.

That may be where the real work begins.

It's past time for bail reform

On May 15, 2010, Kalief Browder and a friend were walking home from a party in the Bronx when they were stopped by police officers. He was accused of stealing a backpack stuffed with a camera, an iPod Touch, a credit card and $700 in cash.

Browder, a 16-year-old African-American, had no incriminating evidence against him and denied stealing anything. He was arrested and charged with robbery, grand larceny and assault.

Because he was on probation for taking a bakery truck on a joyride, Browder was not released. Instead, he was sent to a juvenile facility on Riker's Island known for "a deep-seated culture of violence."

Bail was set at $3,000, a sum his family could not pay.

He wound up spending three years at Riker's, much of that time in solitary confinement. During this time, he was brutalized by guards and other inmates, some incidents of which were captured on video.

Not surprisingly, he was traumatized by the event. He attempted suicide on more than one occasion in and out of custody. On June 16, 2015, he succeeded.

He was never placed on trial and never convicted of the offense. Charges against him were eventually dropped.

This example of what I can only call bureaucratic murder makes me feel sick every time I think about it. It also makes a travesty of the promise of the Fifth Amendment to the Constitution, according to which no person shall be deprived of life, liberty or property without due process of law.

As far as I know, nothing on that scale of awfulness has happened in West Virginia, but we have similar issues with low-income, low-risk nonviolent offenders wasting away in regional jails because they can't afford bail.

It causes untold suffering, clogs up the jail and prison system and costs a lot of money.

Speaking of money, the Gazette-Mail's Phil Kabler recently reported, "Counties paid the Regional Jail Authority more than $1.9 million in 2018 to jail individuals unable to post bond of $1,000 or less for misdemeanor charges."

That year, 3,750 people jailed on misdemeanor charges spent an average of 11 days in jail before they were released or were able to post bail. One person spent 127 days in jail due to lack of money to post a $500 bond.

That added up to 41,058 days that the counties had to pay for, to the tune of $48.25 per person per day. Because that doesn't cover the full cost, they had to kick in an additional $18,750.

In human terms, this can have devastating effects on those incarcerated and their families. Even short of extreme violence and suicide, lots of bad things can happen behind bars, many of which are not conducive to improving civic behavior or promoting public safety in the long run. And overcrowded jails and prisons are unsafe both for those who work there and those who are incarcerated.

There is a further issue here. Our state prisons are already overcrowded. So much so, in fact, that hundreds of people (1,205 in 2016, for example) sentenced to state prisons are still warehoused in regional jails, which are not designed to be long-term facilities. Many cannot access educational and other programs offered in prisons that might make them eligible for treatment, training or parole.

To state the obvious, having hundreds of people doing time in the jails at public expense simply because they are poor only makes things worse all the way around.

Fortunately, there is a growing and bipartisan awareness of this problem at the legislature these days. A (very modest) bail reform bill, HB 2190, passed the House and is up for consideration in the Senate. It allows people charged with certain nonviolent offenses to be released on their own recognizance. It could have been stronger, but at least it's a step in the right direction.

Words written by then U.S. Attorney General Robert Kennedy in 1964 still ring true today: "The rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail."

(This appeared as an op-ed in the Huntington Herald-Dispatch.)