Because she was seven months pregnant, Ashley Grogg was allowed two mats to lay over the concrete slab that served as her bed in Eastern Regional Jail in Martinsburg. For a while she’d had four, collected from some of the women who left the unit before her, to help cushion the slab. But the guards took the extras when they discovered them.
It was April 2021, and Grogg, 35, was about five months into what would end up being a nine-month stay at Eastern. She had already had COVID — contracted along with most of the people in nearby cells back in December. That was scary, especially as a pregnant woman stressed about the effect the virus would have on her unborn child. And now, her already-cramped cell was about to get even more uncomfortable: She had just been assigned a cellmate in the room that was meant for one.
“I just had to make do with what it was,” Grogg said. “But…it was dangerous because she shouldn’t have been on the floor, for one, and I had to step over her and stuff because there wasn’t very much room. Like, her feet or her head were at the toilet.”
Grogg’s cramped cell conditions weren’t unusual: The state has struggled with jail and prison overcrowding for decades, as lawmakers, judges and prosecutors have largely prioritized putting people in jail over alternatives. Time and time again, experts, task forces and commissions have told state leaders how to fix the overcrowding: by rewriting sentencing laws that leave non-violent offenders languishing in jails, and by prioritizing rehabilitation, including drug treatment, over incarceration.
But instead of taking their advice, legislators have repeatedly increased jail and prison times for non-violent offenses. That trend continued during this most recent session, despite recent talk about the public health dangers of jail overcrowding, and a bipartisan coalition of faith leaders and advocacy groups urging changes to alleviate the problem. Moreover, research from the U.S. Department of Justice has found that just locking people up does little to deter crime, and can cause generations of harm to the lives of incarcerated people and their families.
These moves have devastating consequences for people like Grogg, who was arrested for driving on a revoked license in November 2020. At the time, it seemed like a cruel joke. She was on her way home from work, six weeks pregnant, and only four days away from having her license reinstated. She had been eligible for reinstatement for years, but the process was tedious and expensive, especially on top of holding down a job.
Grogg had been in jail before, for the DUI that resulted in her license revocation and again for a drug charge. But she had never committed a violent offense, and had since gotten sober. Even so, Grogg ended up spending the duration of her pregnancy, and then some, in a West Virginia jail.
‘Tipping point’
For most of the last five years, jails in West Virginia have been over capacity, according to a report by the Division of Corrections and Rehabilitation. At a time when most other states were reducing jail populations in response to COVID-19, West Virginia’s average population hit its highest ever in 2021. Inmates regularly sleep on floors or makeshift bunks, crowding into cells meant for fewer people. The COVID-19 pandemic injected a new urgency into the issue of jail overcrowding, but the situation didn’t happen overnight.
Lawmakers and state officials have been studying the problem since at least 2009, when then-Gov. Joe Manchin established a commission to get to the bottom of why West Virginia’s prison population was one of the fastest-growing in the nation.
In the first line of their 2009 report, the commission warned that jails and prisons were at a “tipping point,” with too many inmates and not enough resources. One reason: Lawmakers had enhanced criminal penalties or created new crimes “every year for decades without proper planning for the consequences,” the report said.
Commissioners recommended the state reduce sentences for non-violent crimes, find alternative punishments for lesser crimes that didn’t involve incarceration, and increase jail and prison capacities, noting that only a combination of all three solutions would solve the problem.
Officials increased West Virginia’s jail capacity by 1,100 beds, but largely ignored the other recommendations.
“The shelves of government are full of reports and studies that were never acted on,” said Kanawha County Commissioner Kent Carper, a member of the 2009 commission.
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Lawrence Messina, the spokesperson for the state Department of Homeland Security, which oversees jails and prisons, did not answer questions about efforts to stem overcrowding. He instead pointed reporters to more reports, these from the Department of Corrections and Rehabilitation, that reference the creation of rehabilitation programs in two jails, but no statistics were provided indicating the number of people served or their success rate.
The next year, there was another report, this one commissioned by the Legislature and focused on the state’s criminal code, which dictates how judges can sentence convicted people. That report, issued by the West Virginia Law Institute in January 2010, found the state imposed “some of the longest sentences in the country” and used alternative programs, like rehab and probation, at a much lower rate than other states.
The report noted one place for reform: Unlike surrounding states, West Virginia has no maximum sentence for aggravated robbery, whether it’s attempted or successful. People were serving longer sentences for robbery than for murder and sex crimes, with purse snatchers potentially able to receive the same sentence as bank robbers.
There was some progress after this report. In 2013, the Legislature, pushed by then-Gov. Earl Ray Tomblin, “eventually embraced some aspects of it,” said West Virginia University law professor Robert Bastress, the report’s lead author. Lawmakers passed the Justice Reinvestment Act: a bill that was meant to encourage substance abuse treatment over incarceration for drug crimes, implement drug courts throughout the state, and reduce the likelihood people would return to jail through increased supervision.
The idea had promise. But as with some other criminal justice reforms, the state has fallen behind on tracking whether the changes worked.
“Otherwise, there hasn’t been a lot of change,” Bastress said.
And the lack of action has led to the current situation: a jail and prison system that routinely has more than 1,000 people than it’s designed to hold.
Around the same time Ashley Grogg was stepping over her cellmate to use the bathroom at the Eastern Regional Jail, Johnny Dotson was over 200 miles away at Southern Regional Jail. It was the second time he had transferred jails since his initial arrest at the start of the pandemic. This time, he was sleeping with 15 other men in an area that was meant to house eight.
Some of the people in his unit didn’t have blankets or sheets. Others slept on what Dotson described as “plastic boats” on the floor beside the bunks.
Dotson had served a few recent stints in West Virginia and Florida jails. With a drug habit, and little support, the cycle kept repeating. This time, he had violated the terms of a parole he earned after serving time for a 2019 car chase. He needed to be placed in a long-term recovery program, he said.
“I needed the structure, I needed the tools, I needed to stay clean and to make better choices with my life,” Dotson said. “I’d forgotten how to do that along the way and didn’t have anywhere to go when I got out.”
Offering some people options like supervised drug treatment instead of sending them to jail is only one way to try to reduce the strain on West Virginia’s state jail and prison system. There have been other piecemeal efforts to alleviate overcrowding, like changes to the bail system to reduce the number of people in jails, and ending driver’s license suspensions due to unpaid court fines.
But lawmakers still haven’t addressed the state’s long and harsh sentences, as Bastress’ report recommended. And even some of their efforts for reform haven’t had the impact lawmakers or advocates hoped: West Virginian’s jails are still filled with people awaiting court dates despite attempts at bail reform.
“[It] definitely has not gone far enough,” said Lida Shepherd, a leader of a bipartisan coalition of nonprofits committed to reducing incarceration in West Virginia. “The implementation of it has been a mixed bag at best.”
Shepherd’s coalition, the West Virginia Criminal Law Reform Coalition, which includes a wide ideological mix of conservatives, progressives, faith leaders and lawyers, has spent the last two years pushing policymakers to pass legislation that would reduce incarceration and help people reenter society. After presenting information to state lawmakers at last year’s final interim meetings, they hoped this year might bring the changes they’d been pressing for.
Boogeymen
But despite the recommendations of numerous experts and members of the justice system, despite the realities of a jail system that is bursting at the seams, despite the skyrocketing costs to continue incarcerating thousands of West Virginians every day, and despite the crowded conditions contributing to a surge in COVID cases and deaths among inmates, lawmakers spent the legislative session doubling down on their “tough on crime” approach.
It’s a strategy that lawmakers have pursued for years. More than a decade ago, Bastress wrote that these piecemeal sentencing increases are typically “responses to fleeting political moments.”
This year, the driving concern was fentanyl: a powerful opioid that is increasingly mixed with other drugs, often without the drug user’s knowledge, and has contributed to the rise in overdose deaths.
In his State of the State address, Gov. Jim Justice told lawmakers he’d be open to whatever punishment they saw fit to write into law for drug trafficking crimes.
“I would welcome anything that you chose to come up with that says, for a drug dealer that comes into this state and peddles stuff that is going to kill our people, absolutely you can’t come up with anything that is too strenuous for me,” Justice said. “There is no way.”
Lawmakers introduced and spent time on a flurry of bills – none of which passed – that would increase sentences for both drug users and drug traffickers. One would have made exposing state employees, like police officers and emergency medical services personnel, to fentanyl punishable by up to five years in prison. Another would have added up to 10 years of supervision for a person convicted of a second offense related to selling fentanyl. Both of those bills passed in the House in 2021 and 2022, but weren’t taken up in a Senate committee.
“Right now, fentanyl is an absolute scourge,” Shepherd said. “True to form, the Legislature and policy makers want to attack it with the same, tired, failed strategies of: ‘let’s just punish people.”
While lawmakers ultimately did not follow Justice’s lead on sentencing enhancements for fentanyl-related crimes, they did increase charges based on a different national preoccupation. If signed by the governor, a new law will make knowingly voting or attempting to vote illegally a felony, which some lawmakers pointed out during debate could end up creating more felons, despite the intent.
“There are scenarios where no one is trying to do anything illegally,” said Sen. Richard Lindsay, D-Kanawha. “That individual could still be charged with a felony just by the very words of this statute.”
The bill is one of a number increasing penalties for illegal voting from Republican-led legislatures around the country in the wake of the 2020 election. And charges in states with similar laws have revealed the potential harm, with Black voters often receiving more severe charges, sometimes unaware they were even committing crimes.
Criminal code
But the effect of all of these individual measures on overcrowding could pale in comparison to what lawmakers settle on if they completely overhaul the state’s criminal code.
For the last two years, a small team of lawmakers, led by Delegate Brandon Steele, R-Raleigh, have pushed a bill that would entirely rewrite the code. In many cases, the proposed changes would make punishments for various crimes longer and allow judges a large amount of discretion in determining sentences for identical crimes.
Steele declined an interview request for this story. But he called it a “great bill” last year, speaking on the House floor.
“It’s a great starting place for us to update, modernize our code, as many of our sister states around the country have done over the past 20 years,” he said.
In 2021, the bill passed the House, but failed in the Senate. This year, it was assigned to a subcommittee that heard testimonies from police and prosecutors. Though all sides appeared to agree that the state’s sentencing laws need changes, the massive bill was deemed too much, too fast. Delegates and stakeholders both requested more time to carefully review the nearly 500-page bill, and study the impact it would make. Effectively, change was held up for another year.
“I don’t think anybody I’ve talked to says we don’t need to go through and make this [draft bill] better,” subcommittee member Delegate Chad Lovejoy, D-Cabell, said. “Whether it’s the defense lawyer, the prosecutor, the judge — they all say this is not a good idea.”
In the last meeting of the subcommittee, on Feb. 8, Delegate Joey Garcia, D-Marion, proposed to amend the bill that would overhaul the criminal code by striking all its pages, and replacing them with just two suggestions he believed all parties could agree on: raising the threshold for non-violent felony theft from $1,000 to $2,000, and getting rid of mandatory jail time for a third shoplifting offense.
But the subcommittee rejected Garcia’s amendment, not wanting to discard the years of work that went into the criminal code overhaul.
“I think when we reduce a 500-page code rewrite to a single page, there’s a lot of ground in between that we could cover,” said Delegate David Kelly, R-Tyler, a member of the subcommittee and the chair of the House Jails and Prisons committee.
But three days later, in Kelly’s jail and prisons committee, delegates got a surprise.
At the committee’s final meeting, Delegate Mick Bates, R-Raleigh, was angry. Just that morning, he had received a copy of yet another report, published weeks before the start of the session.
It was full of familiar recommendations: reducing sentences for non-violent crimes, keeping better track of inmate data and prioritizing rehabilitation over incarceration for drug offenders.
Bates wondered aloud why he was receiving the then-months old report so late into the session. Had he seen it earlier, he said, he would have pushed for two of the most concrete suggestions to be put forward in a bill before the deadline to introduce them had passed: the suggestions were the same as Garcia’s in the subcommittee looking at the criminal code rewrite.
Other members said they were also unaware that such a report existed, though Kelly was the one who pushed for it the previous year.
“I would hope that we’d at least try to put [a bill] together that incorporates those recommendations so we have it available and can act on it as soon as possible,” Bates said in an interview, noting that there could be special sessions in the coming year. “We’ve been tasked with making sure sentencing is appropriate, and that we’re not detaining people we don’t need to detain, and those that we are detaining, we’re detaining for the least amount of time.”
But in the meantime, people are still filling West Virginia’s jails past the brim, though both Dotson and Grogg aren’t among them. After delivering her baby in June while still incarcerated, Grogg finally went home in August. In September, after pushing for it with his attorney and the parole board, Dotson was released on home confinement into a recovery program. He’s been sober since.
And once again, people working to change West Virginia’s tough-on-crime approach to criminal justice believe the state is at another tipping point.
Shepherd, one of the nonprofit coalition’s leaders, believes that the group’s united front is working to push lawmakers in the right direction this time — along with the staggering cost of running overcrowded jails to state and county governments.
“Paradigm shifts take time,” Shepherd said. “We have been seeing, for decades now, just this very single minded response to crime, to the addiction epidemic, to violence quite frankly, that we think that —I guess the adage is, ‘if your only tool is a hammer, every problem you see is going to look like a nail.’”
Editor’s note: Before working at Mountain State Spotlight, reporter Quenton King was a member of the West Virginia Criminal Law Reform Coalition as a function of his job as a policy analyst for the West Virginia Center for Budget and Policy.