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Despite a federal judge’s ruling, West Virginia has no immediate plans to distribute federal stimulus checks to people incarcerated in the state’s jails and prisons. 

The federal government sent many Americans $1,200 checks earlier this year, through the Coronavirus Aid, Relief and Economic Security (CARES) Act. But for months, the government denied incarcerated individuals these checks.

A recent court ruling upended that restriction.

The West Virginia Division of Corrections and Rehabilitation is holding off giving any previously-received payments to those behind bars per verbal IRS guidance, waiting for the outcome of the case, said Lawrence Messina, spokesperson for the state Department of Homeland Security. The case is currently in the appeals process. 

The state still retains checks held in response to IRS guidance from before the court decision, Messina said, and none had been received since the application process began following the ruling.

“If any are received, and if the IRS has not provided any subsequent guidance or direction, DCR will consult with legal counsel and decide how to proceed,” he wrote.

Yaman Salahi, partner at the law firm Lieff, Cabraser, Heimann & Bernstein, which represents those incarcerated in the case, said other places across the nation have already begun distributing that money.

In Florida, for example, corrections officials say the checks will be distributed into the accounts of those who apply. 

Those behind bars — both in West Virginia and across the county — have until Nov. 4 to postmark paper claims for the payments, though the IRS is advising prison officials that they be permitted to apply even after that date. Online claims must be filed by Nov. 21, but the technology to submit them is usually inaccessible to those in jail or prison.

Federal court decisions 

Judge Phyllis Hamilton of the U.S. District Court for the Northern District of California, in a Sept. 24 preliminary injunction, said the stimulus payments could not be restricted based on someone’s incarcerated status. Hamilton made the decision permanent with an Oct. 14 summary judgment — permanent unless overturned by an appellate court.

The federal government, which was sued in the case, has appealed the ruling. A request to suspend, or “stay,”  the order until the appellate court makes its final decision was denied on Friday.

“We conclude that appellants have not demonstrated a sufficient likelihood of success on appeal to warrant a stay,” wrote the U.S. 9th Circuit Court of Appeals in its Friday decision.

Salahi said he’s aware of no legal basis for West Virginia to keep the checks from incarcerated people.

“I think that’s pretty troubling and could be a legal issue for the state system,” he said. “The outcome of the case is known. The court has entered its final judgment.”

If the defendants proceed with the appeal, the 9th Circuit Court of Appeals will eventually rule on that judgment, and either confirm or overturn the ruling. The proceedings are set to spill into next year.

Messina said on Monday morning that West Virginia had received no additional guidance or instructions from the IRS.

“As DCR is not a defendant in the pending case, it is awaiting guidance or direction from the defendants who are subject to the court’s orders,” he said in an email.

Rachel Kincaid, an attorney at Mountain State Justice, which provides legal advocacy on behalf of low-income West Virginians including those who are incarcerated, said she has no direct knowledge of payments either being disbursed or withheld.

“If [they were being withheld], it would be highly problematic and we believe in violation of the court’s order,” she said. “Because the appeals court refused to stay the order it is good law here as it is across the nation.”

In a statement provided to Mountain State Spotlight Monday afternoon, Loree Stark, the legal director of the American Civil Liberties Union of West Virginia, urged the state to distribute the money. 

“The 9th Circuit’s ruling on Friday denied the government a stay on the lower court’s ruling because the government has not made a sufficient or compelling argument that it will ultimately succeed on its appeal,” she said. “The ruling reaffirmed what we’ve known all along — that incarcerated people are entitled to CARES Act payments. The state of WV should distribute CARES Act funds to recipients as soon as they are received at its correctional facilities.”

Looking back

The checks began arriving in April for U.S. citizens. At the end of the month, West Virginia DHS announced an investigation into “inmate COVID-19 stimulus schemes.”

According to a press release, officials were investigating 125 incarcerated people in the state who applied for a check. Messina said all of them were held at Mount Olive Correctional Complex. The 125 mentioned in the press release weren’t the total amount of incarcerated West Virginians who requested payments, he said.

“As inmates receive meals, housing and medical care at state taxpayer expense, they are considered dependents and are ineligible for such payments,” wrote DHS. “The IRS called for the return of all CARES checks sent to inmates in a Monday bulletin to federal and state correctional officials nationwide.”

After checks had already been mailed to some incarcerated individuals, the IRS said in a fact sheet published on May 6 that incarcerated people were not eligible. The IRS went as far as to ask state officials for a return of money incarcerated individuals may have received through the payments. A June report by the Treasury Inspector General for Tax Administration said nearly 85,000 payments had been made to the incarcerated in the United States, totaling around $100 million.

Then came Hamilton’s ruling.

Messina said the investigation into the incarcerated individuals who had previously applied for the checks was pending. He said no action had been taken against any of them aside from the withholding of the money.

Checks are ‘life-saving’ and ‘a world of difference

Stark of the ACLU-WV said a stimulus check can be life-changing. 

“I don’t think people a lot of people realize that when you’re incarcerated so many things still cost money,” Stark said. 

Kincaid of Mountain State Justice said people behind bars still need money to buy commissary items, and many have fees and fines related to their convictions.

Also, Kincaid pointed to the value of such a sum of money when someone is released from incarceration.

“It’s really hard for people to reintegrate into society when they get out of jail or prison,” she said. “Having some extra money, especially during a pandemic, when it’s hard for anybody to get hired, would certainly make it easier on them to secure housing, secure transportation, take care of basic needs both for themselves and their families.”

While those in prisons may spend many years — maybe a lifetime — behind bars, people typically assigned to regional jails have lower-level offenses and are released in less than a year. 

Although occupancy numbers change daily, there were 5,915 West Virginia regional jail inmates and 3,980 prison inmates as of Tuesday, according to DCR data. Many would be eligible to request the payment, if they meet the standards.

The check is more than just money for someone who is incarcerated. Seth DiStefano, policy outreach director for the West Virginia Center on Budget and Policy, pointed to the benefits that money could have for the families of those incarcerated. He said it made “a world of difference.”

“That’s rent, that’s you name it,” he said. “[This money is significant for] families of incarcerated people and everything they have to go through to stay connected to their loved ones, paying for phone calls, paying for basic commissary things like soap or just having a breadwinner out of the household.”

Douglas Soule is a Report for America corps member and watchdog reporter. A Bridgeport native, he worked as an intern at the Charleston Gazette-Mail. He has served as editor-in-chief of The Daily Athenaeum,...