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At Southern Regional Jail in Raleigh County, as reported by the Register Herald on Aug. 8, a pregnant woman had to sleep on a cement floor. She was one of four women in a tiny cell. When the toilet in that cell overflowed and soiled another woman’s mat, no replacement mat was offered.

Built to house 468 people, the jail had 727 inmates on Aug. 7. This is not new. Nor is it unique. Last fall, Betsy Jividen, commissioner of the state Division of Corrections and Rehabilitation (DCR), told the legislature that the state’s regional jails were “bursting at the seams.”

Despite a decline in the state’s population and crime rates, West Virginia’s jail population has exploded from 1,581 people in 1999 to 5,168 people in March 2020. On any given day, nearly every one of the 10 jails across the state is over capacity.

Lawrence Messina of the Department of Homeland Security said that “[a] large part of the jail’s overcrowding problem is because of the number of pre-trial defendants.” He’s right. More than half of the people stuck in those jails have not been convicted of a crime. When the Pretrial Justice Institute created a state-by-state report card grading pretrial procedures, West Virginia received an F.

The COVID-19 pandemic makes matters worse. Social distancing is not an option inside overcrowded jail cells. And people without symptoms can spread the virus. Two months ago, Huttonsville Correctional Center saw the number of positive COVID-19 cases jump from one person to 121 people within two weeks. Another outbreak emerged recently at South Central Regional Jail in Charleston, where one out of 10 inmates tested positive for the virus, and a man who was incarcerated there has now died from COVID-19. Now there’s also an outbreak at Mount Olive Correctional facility with over 140 positive cases.

The Journal of American Medical Association reported that “[t]he COVID-19 case rate for prisoners was 5.5 times higher than the U.S. population case rate” and the death rate was three times higher than the general population.

This threatens all of us. The people who work in our jails and return home to their families and communities; the judges, attorneys and courthouse employees who must continue to provide due process to those awaiting hearings and trials; and all of us who expect our health care systems to be available when we need them.

Epidemiologists have warned that outbreaks inside jails “require mass transfers to local hospitals for intensive medical and ventilator care…[and each] severely ill patient coming from corrections who occupies an ICU bed will mean others may die for inability to obtain care,” as Conor Friedersdorf wrote in The Atlantic, continuing, “People who have never seen a city jail could die because too many others were kept in one.”

In addition to the health implications, incarcerating so many people awaiting trial has enormous fiscal implications for counties. Every day a person is held in pretrial detention costs a county approximately $50. Many people are held weeks and months prior to their trial date, resulting in hefty jail bills. As counties experience worsening fiscal crises as a result of the pandemic, these high costs will be an even greater threat to county budgets.

Thankfully the state Legislature and Gov. Jim Justice have given us a tool we need to fight COVID-19 and the strain on county budgets. A new law aimed at reducing the number of people awaiting trial in jail requires a magistrate to hold a hearing if a defendant is unable to post bail within 72 hours.

This is important because it is the first time the magistrate gets to hear from the defendant’s attorney. Laws like this work by giving someone who cannot afford bail the chance to be heard.

Unfortunately, most West Virginia magistrates are either ignoring the law, or only applying it to people facing misdemeanor charges – even though the law clearly applies to felonies too. A law to reduce the pretrial jail population must apply to felony charges in order to be effective. On the day the new bail law went into effect, people facing misdemeanor charges represented only 7% of the people in jail.

The practice of pretrial detention is not only an issue of public health and fiscal responsibility but is a moral issue as well. The United States Supreme Court has held that “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

That’s because people jailed prior to trial are more likely to be convicted and more likely to be sentenced to jail or prison. The men and women who are charged by the criminal system are overwhelmingly poor and disproportionately Black. Many are living paycheck to paycheck, and incarceration pretrial can lead to job loss and eviction. No system that delivers unequal punishment for the poor can be called just. And in the era of COVID-19, incarceration is a matter of life and death.

Owens Brown is the president West Virginia NAACP.

Gail Henderson-Staples is president of the Mountain State Bar Association.

Barbara Evans-Fleischauer, D-Monongalia, is a member of the House of Delegates representing the 51st District.

Tim DiPiero is a Charleston attorney with DiPiero, Simmons McGinley & Bastress PLLC.