Autumn came, followed by winter, and John Hammond remained in jail.
“I miss being around my wife, my kids,” the 48-year-old said in a phone call from Central Regional Jail in December. Men were arguing loudly in the background. He did his best to ignore them. “It’s the most [time] I ain’t been around my granddaughter.”
His family missed him too.
“I’m thinking he’s never going to get out,” said Tammy Hammond, his wife. “I mean, I’ve lost hope. I’ve literally lost hope.”
Central Regional Jail, located just off the Interstate 79 exit in Flatwoods, serves eight counties overall, including Nicholas County, where Hammond faced felony burglary charges for allegedly stealing a washer and dryer. But despite being in jail for four months at the time he made the phone call, Hammond hadn’t been tried for his crimes or convicted.
In West Virginia, magistrates and circuit judges have a lot of discretion in deciding who goes to jail before a trial. Generally, judges aim to release those who they think are unlikely to leave the area, or harm themselves or others — they can go home to await their trial. But these standards are subject to individual interpretation. And as a result, there are thousands of people in jail for a variety of reasons, even before they’re put on trial for their alleged crimes.
This compounds the problems facing West Virginia’s already-stretched jail system. At times during Hammond’s detention at Central Regional Jail, the facility was over capacity by nearly 180 people. As of Wednesday, there were about 1,500 more people in West Virginia jails than the facilities were built to hold.
“They’re just all piled in here together,” Hammond said. While he was imprisoned at Central Regional Jail, he spent most of his time with two other men in a cell that should have held only one other person.
This problem isn’t new: for decades, West Virginia’s jails have faced overcrowding issues. But despite attempts at reform — including as recently as last year — the behind-bars population has steadily grown. And as a pandemic rages across West Virginia and the nation, people in crowded, confined spaces, such as those found in regional jails, are at greater risk of catching the coronavirus. For many, the public health crisis injects a new sense of urgency into questions about who is being locked up, whether they should be and the effectiveness of the state’s attempts at change.
A new Mountain State Spotlight analysis of West Virginia Division of Corrections and Rehabilitation incarceration data found that of the more than 2,000 people behind bars before trial for felony offenses on Jan. 19, fewer than half could be linked to charges that generally were violent, sexual or involved direct harm to children.
An additional 457 people were being held on that date without being tried or convicted for misdemeanor offenses, according to the data.
Wanda Bertram, communication strategist for the nonprofit think tank Prison Policy Initiative, said the argument cannot be made that only the “worst of the worst” are being held behind bars for everyone’s safety. Even felony charges vary drastically in severity.
“Today, if you steal an iPhone that costs more than $1,000, that’s a felony,” she said.
The more than 2,000 people in jail pretrial for felony charges strikes Steve Canterbury as an “awfully high number.”
While he hasn’t seen the current data, Canterbury, a former administrator of the state Supreme Court and former executive director of the West Virginia Regional Jail and Correctional Facility Authority (which has since combined with juvenile services and the state prison system into the Division of Corrections and Rehabilitation), doubted that most of the people in jail awaiting trial would pose a risk if released.
“What it most likely represents is money bond,” he said. “They are sitting there for a lack of money to make bail.
“Getting rid of money bond would really make a difference in overcrowding, make a difference in the pretrial [defendants] sitting there, and it would make a huge difference to, I think, quality of life for some of them and their families,” he said.
Bond revoked
The data analyzed by Mountain State Spotlight did not include any information about how many of the people currently awaiting trial behind bars was offered bail. But another factor for many people in the jail system is having their bond revoked, which can happen for myriad reasons, including being charged with another crime, failing to show up for a hearing, or, like in Hammond’s case, failing a drug screening.
Hammond says his drug use began when he was prescribed pain pills after a bad car accident in the early 2000s. And though he was initially released after posting bond in June, court documents show on Aug. 17, Nicholas County Circuit Judge Stephen O. Callaghan ordered him back behind bars after a random drug screening indicated methamphetamine and amphetamine were in his system.
“If the judge felt it was that big of a problem, he needed to be in rehab, not jail,” Tammy Hammond said.
If someone fails a drug test, they are more likely to get the help they need through a substance abuse recovery program instead of jail time, Lida Shepherd from the American Friends Service Committee said.
“I believe we could drastically reduce the overcrowding if we no longer revoke based on technical violations,” she said. “There are scaled sanctions that could be used instead or alternative sentencing that ultimately would be less costly and probably more effective for that person.”
Another possible solution: home confinement.
West Virginia Center of Budget and Policy analyst Quenton King said home incarceration is a viable option to reduce overcrowding. In an WVCBP issue brief published last month, he wrote it allows defendants to “still be employed, take care of their families, and attend any health or counseling services,” though they would have to foot the bill, and a home phone is required.
Other options, King said, would be automated court hearing notification services and to stop using jails for long-term incarceration.
Tammy Hammond said she would have been willing to pay to have her husband on home confinement.
“He’s not a flight risk,” she said. “[His charges] are not violent.”
But that option wasn’t offered to John Hammond.
A motion filed right after his readmission by Hammond’s public defender cited the risk of COVID-19 transmission. But Judge Callaghan ruled against the release, saying Hammond had shown himself “unable to follow the terms and conditions of bond” because of the drug test. Also: the court found that there was “no settled evidence that the Defendant would be safer from COVID-19 upon release from incarceration.”
Callaghan declined to comment further through a spokesman.
The Journal of the American Medical Association released research in July that found that the COVID-19 case rate for prisoners was 5.5 times higher than the rest of the United States population. The death rate was three times higher.
In December, after being in jail for around four months, Hammond tested positive for COVID-19.
‘Bursting at the seams’
Nine months before John Hammond entered the Central Regional Jail for what would turn out to be a five-and-a-half-month-long stay, lawmakers were hearing once again about overcrowding in West Virginia’s jail system. In the November 2019 meeting of the Legislative Joint Judiciary Committee, DCR Commissioner Betsy Jividen told legislators that the state’s regional jails were “bursting at the seams,” according to the Charleston Gazette-Mail.
Former delegate John Shott, R-Mercer, then the committee’s co-chairman, said addressing this would be a focus during the 2020 legislative session. One of the resulting bills: House Bill 2419, which received bipartisan approval.
The bill says cash bail can’t be more than three times the maximum fine for a misdemeanor offense, and it requires magistrates and judges to release people charged with certain misdemeanors on personal recognizance bond, which means they don’t have to pay anything if they return for court proceedings. The bill also says that everyone who’s charged with a crime with a penalty of incarceration is entitled to the least restrictive conditions possible if they’ll appear in court and not be a risk to the public.
Another new requirement from the bill: if someone can’t pay to get out of jail, court officials have to hold a hearing within 72 hours to reevaluate the situation.
“The bill tries to strike the right balance between making sure that people maintain their right to reasonable bail … without jeopardizing public safety and providing, leaving in, the discretion of judicial officers,” said the chairman of the Senate Judiciary Committee, Sen. Charles Trump, R-Morgan, according to the Charleston Gazette-Mail.
These “judicial officers” are West Virginia’s 158 magistrates and 75 circuit judges.
The bill was passed by the Senate and House of Delegates and signed by Gov. Jim Justice in March. The World Health Organization declared the coronavirus outbreak a pandemic several days later. Another few days and the state would have its first confirmed COVID-19 case. Though the legislation wasn’t set to go into effect until June, suddenly jail overcrowding became a much more pressing issue.
As an interim fix, the state Supreme Court sent a memo directing magistrates and circuit court judges to determine if there were any pretrial defendants who did not represent a public health risk who could be released on personal recognizance or a reduced bond.
The memo temporarily worked to reduce the incarcerated population. The jail population even briefly fell below capacity. But the population steadily grew in the late spring and early summer, even after the new legislation went into effect in June.
The jail population said to be “bursting at the seams” was 5,137 people. That number was 621 people higher on Wednesday.
“I would say [House Bill 2419] had next to no effect,” said King of the West Virginia Center on Budget and Policy. “I think the biggest reasons are lack of clarity. So a lot of magistrates just don’t know that they should follow it or why it matters.”
Who’s following the law?
That lack of clarity about who the law applies to is playing out in West Virginia’s largest county.
The law lays out that if bail is offered and the defendant can’t pay it, a hearing has to be held within three days to reevaluate. But Kanawha County Prosecutor Chuck Miller said he interprets the law to only apply to defendants facing misdemeanor offenses. Public defenders in the county contend it applies to most felony offenses as well.
In August and again in December, lawyers from the Kanawha County Public Defender’s Office filed petitions alleging that magistrates in the county aren’t following the law, because they aren’t holding the hearings for people charged with felonies.
The August petition argues that the law not only did not omit felonies, it “clearly and unambiguously” applies to both felonies and misdemeanors. In addition, the petition says that not including felonies would subvert the law’s intent, since only a small portion of those incarcerated for pretrial misdemeanors make up the jail population.
Miller said he tells his team to not keep anyone in jail who is suitable for release, but the decision ultimately rests with the judges.
“We just don’t have a lot of control over the system,” he said. “We don’t have much in the way of options when it comes to people who are released on bond and violate the terms and conditions of their bond, or oftentimes they’re put on probation and violate their probation. The only remedy is to put them back in jail.”
One of those judges — Jefferson County Magistrate Carmela Cesare — said sometimes she doesn’t have a lot of leeway in deciding who’s released on bond. Some misdemeanor charges are exempt from release on a personal recognizance bond, such as ones involving deadly weapons or violations of the Uniform Controlled Substances Act, and Cesare said those were common charges she saw.
“However, personally, me as a magistrate, I understand what the legislature had in mind when they created this bill, when they created this law, [which was to] relieve overcrowding,” Cesare said. “I always bear in mind that the purpose of bail is not to punish someone, but rather to ensure that they show up to their hearing.”
She said she tries to give personal recognizance bonds, depending on the severity of charges, and she tries “very hard” not to set a bond that is unobtainable to pay. She said most people she gives bond to pay the needed amount and get released in 24 hours.
Cesare said she doesn’t believe she’s given someone with a felony charge a personal recognizance bond.
“You need to understand, when we set a bond, we’re meeting a person for the first time coming off the street,” she said. “You have to make a game time call, to the best of your ability.”
When asked in follow-up questions over email whether she was applying House Bill 2419 to felony offenses for provisions like 72-hour bond review hearings, she declined to answer.
‘I love you papaw’
After five-and-a-half months behind bars, after contracting and recovering from COVID-19 without suffering any of its serious symptoms, a judge dropped John Hammond’s felony charges. He pleaded guilty to a misdemeanor and was released from jail the same day.
“I just wanted to get it done and over with,” Hammond said.
Tyler Mason, the lawyer who got Hammond released, said he wished he had been able to represent him from the start.
“When I was able to investigate the case and go over all of the evidence with the prosecutor and law enforcement, they were very reasonable and helped to make sure that this case was resolved quickly,” Mason said in a statement sent to Mountain State Spotlight. “I’m glad we were able to come to a successful conclusion, and I’m very relieved that Mr. Hammond is back home with his family.”
Back in his home in Camden-on-Gauley, Hammond stood beside a window near the wood stove, looking out at acres of his mountainous, fog-swathed property. One of his German Shepherds bolted past. The view was a whole lot nicer and the window a whole lot bigger than the frosted glass one in his cell.
When he turned back to the living room, in sight was a drawing his granddaughter made for him on Feb. 2, the day he walked out of Central Regional Jail. Written in multi-colored letters, it said, “I love you papaw.”
Tammy Hammond said her health had declined while her husband was in jail, and paying bills had been made far more difficult because of his lost income. She had been unable to plan important parts of the future, since a lot depended on what happened with her husband.
The months he was gone “was a lifetime,” she said.
But now, Tammy said, she and family members can rest easy. And, as winter turns to spring, John Hammond wakes up at his house in Camden-on-Gauley, not in a cell.
“It’s nice to be home,” he said.
Thousands of West Virginians held pretrial are not so fortunate.