Kanawha County Public Defender Ronni Sheets told members of the Legislative Oversight Committee on Regional Jail and Correctional Facility Authority that only about 250 people incarcerated in the state are serving a sentence due to a misdemeanor charge during legislative interims on Monday, Sept. 11, 2023. (Will Price | West Virginia Legislative Photography)
After failing to pass a bill during last month’s Special Session that would have changed bail procedures in the state and added reporting requirements meant to limit the number of people being held behind bars without a conviction, lawmakers on Monday had further discussions with individuals who work on both sentencing and bailing out people accused of crimes.
As of Monday morning, according to Kanawha County Public Defender Ronni Sheets, there were 500 people being held in jails across the state who are accused of committing misdemeanors but who have not been convicted by a court.
To put that in perspective, Sheets told members of the Legislative Oversight Committee on Regional Jail and Correctional Facility Authority, only about 250 people incarcerated in the state are serving a sentence due to a misdemeanor charge.
“Only about half those people [being held on] misdemeanors will serve actual jail time, so [everyone else] is basically serving sentences they shouldn’t have to serve,” Sheets said. “It’s important to see if everyone [accused of a crime] has an opportunity to make bail.”
There are no statutes in current law that outline what judges — magistrate or circuit — must accept as a bond for people who are arrested. Instead, circumstances for making bond and granting a pretrial release are largely up to the discretion of each judge on a case-to-case basis.
This leads to inconsistencies between each county and — even more locally — each judge.
“I do think that the amount of time someone spends incarcerated pretrial should not be based on where they live geographically,” Sheets said.
The limits judges are allowed to place on what kind of bail is accepted leads to exactly that, however.
Tommy Weatherholtz, a bail bondsman, said there are some magistrates in the state who only accept cash bonds for nonviolent misdemeanor offenses. While they have the option to accept a property bond or service from a bail bondsman, some don’t.
Part of the issue, Sheets told lawmakers, is a lack of reportable data on jail populations and what people are being held for.
While there is a court rule — which are guidelines promulgated by the West Virginia Supreme Court of Appeals — to require biweekly reporting from prosecutors on who is incarcerated in their counties without being convicted, there is enforcement mechanism for the rule, according to counsel for the Legislature.
Senate Bill 1008 and its corresponding version filed in the House last month would have added reporting requirements for prosecutors and the Supreme Court, as well as changes to bail procedures, into state code. Both those bills, however, died in House Judiciary when members opted not to bring them up for consideration before adjourning from the special session Sine Die.
If that proposed bill were made law, it would have changed how people accused of crimes could make bail, adding in stipulations for using bail bondsmen and property transfers and liens instead of allowing judges to only accept cash payments.
County prosecuting attorneys would have been required to file bimonthly reports to their county commissions and the appropriate court listing each person currently held in custody without a being convicted for longer than 10 days. They would have had to “provide a statement of reasons” for why the person was still held in custody, according to the bill text.
Annually, the Supreme Court of Appeals would have filed a report to the Legislature on how the changes, if at all, reduced jail populations in the state.
While some courts in the state — including Kanawha County — do follow these reporting requirements through the Supreme Court Rule, others don’t. This means a lack of data that makes it difficult to understand why so many people are being held without convictions who will — if convicted — still not get a sentencing for jail time.
Sheets said codifying reporting requirements could help alleviate the issues that come with a lack of data. It would also help potentially decrease the number of people held in jails, which would in turn lower the cumbersome jail bills that can cost counties millions of dollars.
Eli Baumwell, advocacy director for the West Virginia arm of the American Civil Liberties Union, said the organization would like to see the state do away with cash bail completely.
Under the current practices, Baumwell said, there are people who are losing much more than time for nonviolent offenses they haven’t even been convicted for. There are many people, he said, who are still getting “incredibly high bails” set for nonviolent misdemeanors like drug possession and even traffic offenses.
“If you’re in jail waiting to be charged for something that may not even lead to jail time, within three days you can lose your job. Within a week? That’s your housing. Within a month? It could be your family,” Baumwell said. “The only thing these people are guilty of really is not having enough money to get out of jail. We are significantly, negatively impacting people’s lives with these policies.”
Sheets urged lawmakers in her testimony to remember that fact as well. While the monetary cost of incarcerating people who have not been convicted with a crime is high — about $54 in taxpayer funding each night they’re incarcerated — the human cost is even greater, Sheets said.
“These are people. They’re staying in jails that are overcrowded, they’re sleeping on floors,” Sheets said. “These are members of our community.”
West Virginia has some of the deadliest jails in America, according to a report by Reuters that looked at deaths reported in more than 500 facilities nationwide between 2009 and 2019. Per that reporting, West Virginia had a 50% higher mortality rate for incarcerated people than the national average, which is the highest of any state studied.
Just last month, a federal lawsuit was filed against the state for the dangers inherent in its overcrowded and understaffed correctional facilities. As of March, according to the suit, prisons statewide had more than 1,000 job vacancies, and vacancy rates at eight facilities exceeded 40%.
While lawmakers passed a suite of bills during last month’s special session meant to alleviate some of these issues — including pay raises for corrections staff — the progress made is still minimal compared to the work that those in the jail facilities say needs to be done.
In his deposition for the federal lawsuit, Division of Corrections Chief of Staff Brad Douglas said conditions could be improved if the state put $60 million toward correctional officers and $250 million toward deferred maintenance for the facilities.
In the bills passed last month, just $27 million — about 45% of what Douglas said is needed — went to pay raises and one-time bonuses for jail staff, and $15 million — about 6% of the need Douglas said exists — went to maintenance costs.
Editor’s note: This story has been updated to clear up that people without convictions are being held in jail.
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