The number of people incarcerated in West Virginia’s regional jails has dropped dramatically in the past three weeks. However, the jails still have more people than beds more than three weeks after the World Health Organization declared a worldwide pandemic over the coronavirus.
People working in the Mountain State’s judicial system and some special-interest groups are approaching the issue of how the state can balance the safety and well-being of inmates with overall public safety amid the pandemic.
On March 19, there were 4,997 people held in the state’s 10 regional jails, said Lawrence Messina, director of communications for the Department of Military Affairs and Public Safety, which oversees the Division of Corrections and Rehabilitation.
On Wednesday, there were 4,535 people incarcerated, Messina said.
The regional jails are equipped with 4,265 beds, meaning that, even though 462 people had been released in two weeks, the jails still were overpopulated by 270 people as of Wednesday.
Messina previously said the Division of Corrections and Rehabilitation doesn’t have authority to release people from jail, especially those who are awaiting trial. Those decisions are left up to the judges on a case-by-case basis.
There had been no confirmed cases of coronavirus or the disease it causes, COVID-19, in any state jail, prison or other correctional facility as of Friday.
On March 27, Lisa Tackett, director of the West Virginia Supreme Court’s court services, issued a memo to the state’s 75 circuit judges and 158 magistrates telling them to direct their local prosecutors to review the cases of their most recent pretrial defendants.
Prosecutors right now should be in the process of identifying people who “do not constitute a public safety risk” who would be good candidates for a personal recognizance bond or a lower bail they could post to leave jail, according to the memo.
“As always, judicial officers must fully consider the safety of the public and victims when setting bond or ordering bond revisions in light of the COVID-19 concerns,” Tackett said in the memo. “Factors that may be considered in making such determinations include special treatment of older individuals or individuals with an underlying health condition that make them especially susceptible to complications from the virus.”
Among those released from jail or prison were people who were serving short jail terms for parole violations and work-release inmates who already were eligible for weekend furloughs, according to a correctional facilities information page on the Department of Health and Human Resources website.
Those work-release inmates’ furloughs have been extended from a single weekend to two weeks, according to the page.
In practice, the Supreme Court memo has encouraged prosecutors to look for more resolutions to get people out of jail if they meet certain requirements, Kanawha County Assistant Prosecutor Maryclaire Akers said.
The order doesn’t mean the government is throwing open jailhouse doors and letting everyone out without regard to public safety, Akers said.
“If we can agree to something, a bond they can make or maybe agreeing to home confinement as a condition, we’ve been doing that,” Akers said. “What we’re not doing is letting people out who have violent histories, no matter what the charges. We’re not making agreements in cases where people have violent histories, even if they’re in on nonviolent charges. We’re obviously not making agreements on violent charges either.”
Even when prosecutors and defense attorneys reach an agreement, a judge still has to approve the agreement before an inmate is released from jail.
ACLU, inmates seek safetyThe Supreme Court’s memo addresses at least one of the requests made by the American Civil Liberties Union of West Virginia in a news release sent out March 25.
The ACLU asked Gov. Jim Justice to use his executive authority to “minimize the harm inflicted on inmates and correctional staff in West Virginia.”
Among the ACLU’s requests was having the governor ask Corrections and Rehabilitation officials to grant presumptive parole for inmates who have fewer than 365 days left in their sentence, as long as there’s no evidence the person would pose an immediate or direct threat to public safety.
The organization also called on the governor to identify or expand recovery homes and transitional housing for inmates who are homeless or suffering from addiction and to instruct law enforcement agencies to use discretion that would address certain misdemeanor violations without incarceration.
“An outbreak of the virus in West Virginia’s overcrowded jails, prisons, and juvenile detention facilities risks the rapid transmission of the virus and its eventual spread beyond those confines,” ACLU-WV spokesman Billy Wolfe said in the news release. “This could significantly prolong the time needed to bring the virus under control, overwhelm our medical capacity, and prove catastrophic for those who work in or are incarcerated in state correctional facilities, many of whom have not be tried or convicted of a felony or misdemeanor.”
The same day ACLU-WV issued its statement, inmates who are plaintiffs in a federal lawsuit against Corrections and Rehabilitation filed an emergency motion. That motion asked for a judge to order correctional officials to release a “sufficient number” of inmates to reduce overcrowding and to “allow for appropriate social distancing within the jails and prisons to protect medically vulnerable inmates as well as those who remain incarcerated and correctional staff.”
The inmates filed the lawsuit in May 2019, seeking medical treatment for people incarcerated in West Virginia. They are represented by attorneys from Mountain State Justice, a nonprofit legal services firm.
In the motion, the attorneys also ask for officials to ensure inmates and correctional officers are properly educated on how COVID-19 spreads and how to prevent and limit its spread.
They also seek preparatory steps in the event inmates or correctional officers test positive for the virus, and they want the DCR to suspend all fees inmates pay to make phone calls, video chats and other electronic communication from jails and prisons.
A hearing in the case is set to take place by conference call Monday.
On Thursday, Corrections and Rehabilitation filed with the DHHR an updated policy establishing procedures and responses to a COVID-19 diagnosis in a state facility, if it happens.
On Friday, two Kanawha County commissioners sent out a statement saying they oppose plans that would release prisoners from regional jails and plan to continue to pay regional jail costs.
Kanawha Prosecuting Attorney Chuck Miller addressed the commission during its regular meeting Thursday.
On Friday, Commission President Kent Carper said other counties in West Virginia had stopped paying their jail bills during the pandemic, but Kanawha would continue to pay its bill.
Carper and Commissioner Ben Salango, who is a candidate for the Democratic nomination for governor, said support should go to prosecuting attorneys. They said plans that allow for the release of people convicted of serious or violent crimes aren’t good plans.
None of the plans proposed by the ACLU, the Supreme Court or Mountain State Justice provide for people convicted of violent crimes or crimes of a sexual nature to be released from prison or for those charged with the same crimes to be released from jail ahead of their trials.
“We heard loud and clear from the prosecuting attorney that the effort to allow a mass release of prisoners, including any plan that could potentially allow the release of convicted murderers or sex offenders, raises several legal issues and would prove to be very dangerous to the public,” Carper said. “Law enforcement is already working 24/7 to keep the public safe during this pandemic.”