When Anthony[1] was arrested in 2020, he sat at the police station for hours before a man came over the station telephone and told him, “We’re going to set your bond at $25,000 cash.”
The man on the phone was a magistrate conducting Anthony’s “first appearance” hearing. At this hearing, a magistrate explains the criminal charge, informs a person of their rights, and makes one of the most critical decisions of a criminal case: the bond decision. For most people who are arrested, this decision determines whether they will return home, or whether they will lose their liberty and await their next hearing from jail.
West Virginia law requires magistrates to set the least restrictive bond to ensure a person will appear in court and not commit a new crime. Magistrates must consider several factors, including a person’s criminal history, their ties to the community, and whether they can afford a money bond.
But during Anthony’s first appearance, the magistrate did not ask him about any of these factors, and Anthony did not know to offer this information. Unable to pay the high cash bond, Anthony was taken to the regional jail to wait for his next hearing.
This year, West Virginia jails average nearly 1,000 more residents than the facilities were designed to house. Overcrowded jails were not inevitable for our state. Over the last two decades, West Virginia’s population shrank, while violent and property crimes decreased by 8 and 32 percent, respectively.[2] And yet, the regional jail population swelled by 227 percent.[3]
Half of the people in regional jails – 2,573 men and women as of July 2022 – have not been convicted and are awaiting trial.[4] Like Anthony, most of these legally innocent individuals are jailed due to their inability to afford a money bond, even though there is no evidence that paying a bond deters crime or ensures that people will show up for court.
This unnecessary, pretrial detention makes it harder for people to have their day in court. When a person is jailed prior to trial, they are more likely to be convicted, more likely to receive a longer jail or prison sentence, and more likely to accrue court debt than those who had not been detained.
Money bond further burdens already vulnerable people and their families. Research has shown that people in jail are at greater risk of job loss and reduced future earnings, experiencing homelessness, and losing custody of their children.
But what most research overlooks is the harsh experience of being confined to a cell. You are not allowed to hold your child or a loved one. You have no control of when you eat, when you open a door, or when the lights turn off. You must use the bathroom in view of strangers. Your belongings and your body can be searched at any time.
The trauma of these experiences is intensified in understaffed facilities in disrepair. In June 2022, a joint legislative interim committee heard testimony from women who had been in regional jails due to an inability to afford a money bond. One woman was in a cell for 12 days without hygiene products, including three days without toilet paper. Another described sleeping in two inches of standing water after the sprinklers went off in her section of the jail.
In the last decade, West Virginia jails had the highest death rate in the country – nearly 53 percent higher than the national average. Two-thirds of deaths were attributed to illness or suicide – underscoring the grave threat jail poses to people with physical and mental illnesses.
Overcrowding and poor sanitation can be harmful to people with chronic illnesses and make it easier for contagious diseases to spread. A recent analysis of dozens of studies found that during the COVID-19 pandemic, incarcerated people suffered disproportionately high rates of infection and death, as well as higher rates of death from all causes.
Jails are noisy, chaotic environments with inconsistent mental health care. One study discovered that 83 percent of people with a mental illness did not receive mental health care after entering jail.
Anthony’s case was eventually dismissed, but only after he spent weeks in a “double-bunked” jail pod at the height of the pandemic. His incarceration cost taxpayers thousands of dollars, but it cost him much more. He lost time with loved ones, his car was repossessed, and his retirement savings were spent on court and jail fees.
When asked if a lawyer could have helped him through his first appearance hearing, Anthony remarked, “A lot. Because they had already made up their mind.”
Next week Sara and the WVCBP will publish a policy brief highlighting a simple solution that would have benefited people like Anthony while also reducing harmful and costly pretrial detention.
[1] Name has been changed to protect individual’s privacy; Anthony’s story provided to author in May 31, 2022 interview.
[2] FBI, Crime Data Explorer, National Incident-Based Reporting System (NIBRS) details reported in West Virginia, https://crime-data-explorer.fr.cloud.gov/pages/explorer/crime (accessed June 30, 2022). “Annual Report FY 2014” (Charleston, WV: West Virginia Regional Jail Authority, January 2015), 28; “FY 2019 Annual Report WV Division of Corrections & Rehabilitation” (Charleston, WV: Division of Corrections and Rehabilitation, December 2021), 45.
[3] “Annual Report FY 2014” (Charleston, WV: West Virginia Regional Jail Authority, January 2015), 28; “FY 2019 Annual Report WV Division of Corrections & Rehabilitation” (Charleston, WV: Division of Corrections and Rehabilitation, December 2021), 45.
[4] “West Virginia Division of Corrections and Rehabilitation Adult Inmate Count, Run Date 7/7/2022” (Charleston, WV: Division of Corrections and Rehabilitation).
