Patrick Orsagos, Author at West Virginia Public Broadcasting

A Tour Of Bail: How Other States Have Reformed The Money Bail System

States across the country have taken stabs at reforming how the money bail system operates. In West Virginia, the state legislature passed HB 2419, a law enacted in June 2020 that aimed to limit bail amounts, and by extension, shrink the exploding jail population.

HB 2419 calls for judges and magistrates to use discretion when assigning bail by using the least restrictive means necessary to ensure the accused person’s appearance in court. The law encourages judges to release certain nonviolent offenders on personal recognizance bonds, which is a formal agreement where the accused person is released from jail on the promise that they will return for trial.

The bill was passed at a time when jails and prisons across the country were releasing more people to prevent the spread of COVID-19, and West Virginia followed that trend.

Between March 2, 2020 and April 20, 2020, more than 1,000 people were released from jails. It was a 21% decrease, according to a report from the WV Center on Budget and Policy. Since then, the population has continued to rise. By mid-March of this year, there were more than 6,000 people in jails, which is 144% of the maximum capacity, and that’s more people than before they started reducing the population. At the end of July, the regional jails had 1,155 more people than space.

Not only are the jails still overcrowded, but lawyers and legislators can’t even agree on how to interpret the new law, or HB 2419. Not to mention that it fails to prescribe a concrete practice for judges or magistrates.

Despite its flaws, the law was passed at a time when the whole country was looking at mass incarceration and asking for change. Other states have attempted some form of bail reform to begin to address the issue. So, how are other states doing?

Let’s start with a neighbor to the west, Kentucky.

The bail bonds industry does not operate in Kentucky. So, money bail is still an option a judge can give, but there are no corporate bondsmen in the state to whom people can go to help with their bail.

“So the people who are incarcerated, pretrial, it’s not necessarily because of the specific crime. It is because they cannot pay,” said Ashely Spalding, research director at the Kentucky Center for Economic Policy.

In 2019, Spalding released a report called “Disparate Justice: Where Kentuckians Live Determines Whether They Stay in Jail Because They Can’t Afford Cash Bail.” There are 120 counties in Kentucky, and her report found some large discrepancies regarding bail. For instance, on the west side of the state, in McCracken County, only 5% of cases were granted release without monetary restrictions. So 95% were assessed a bail amount. But on the other side of the state, in Martin County, 68% of cases were released without money bail.

“It’s so disparate, geographically disparate these practices are,” she said. “You know, 40% of cases result in release without financial conditions, which is too low.”

Like West Virginia, Kentucky began releasing a lot of people from jail in the spring of 2020 due to the COVID-19 pandemic. Jails and prisons are hot spots for spreading the virus, so a lot of states released low-level offenders to reduce the risk of spread. But Kentucky used a program called Administrative Release.

It’s a non-judge automatic release for certain nonviolent, nonsexual crimes, according to Scott West, the deputy public advocate for the Kentucky Department of Public Advocacy.

So if someone commits a certain, nonviolent crime, they don’t even stand before a judge, they are automatically released and only need to return for their trial hearing.

Administrative release started in 2015 and expanded state-wide in 2017, and West says the program was also expanded to include certain nonviolent, nonsexual felonies as well as misdemeanors at the start of the pandemic.

“Whereas in 2018, 2019, that about 10%, or 9%, would get out by administrative release, when COVID hit, it went up to 39% for the first three months of COVID. So almost, you know, a fourfold increase in the number of people who are released on AR,” he said.

The Kentucky Court of Justice collected data after the increase in administrative release and turns out, and rearrests didn’t drastically change. In 2019, 92% of people released on AR were not rearrested. In 2020, though the number of people released on AR doubled, 89% were not rearrested.

A common argument against bail reform is that it reduces public safety, according to Spalding, but in this instance, the data collected from the increase in administrative release revealed the contrary.

“In this case, it was very important for safety all around for people to not be incarcerated, if at all possible, because of their vulnerability to getting COVID-19 and its spread in confined situations like jails. So this data, the expansion of this administrative release, provided us with an opportunity to look at data on what happened, and it really shows that the release of more people is in line with our public or community’s safety goals,” she said.

The next state on our tour of bail is another neighbor of West Virginia’s, Ohio. Anthony Body is a bail disruptor for the Bail Project in Cleveland, Ohio.

“A bail disrupter, we’re just here to disrupt the system,” he said.

Our interview was on Zoom, but he spoke from inside the Cuyahoga County Justice Center where he does most of his work until recently, when the pandemic forced him to split his time in half between the jail and his home office.

Body says there isn’t a typical day on the job, but he usually starts the day retrieving a list of potential clients from a public defender and then goes into the jail to meet with as many of those people as possible. He will interview clients, learn about their situation and if they’re eligible, the Bail Project will pay for that person’s bail at no cost to them.

“I can interview like 20-30 people on a daily basis,” he said, “just get to know them, be there from like, 8 a.m. to sometimes seven at night, and just getting people out of jail, listen to different stories, sometimes seeing yourself in some of the clients.”

After they’re released, Body provides wraparound services to his clients like court reminders, transportation assistance, referrals to social services and community resources.

“Whether it be housing, addiction problems, education, job, and so forth. We’re not direct service providers, but we try to steer them in a direction of different agencies that can assist them with their problems. It can decrease the likelihood of them reentering the criminal justice system,” he said.

Body says it’s fulfilling to help someone out of jail if they don’t have to be there. However, it can be taxing as a person of color to see so many other people who look like him incarcerated.

“We’re in a system where you’re deemed innocent until proven guilty, but for the most part, blacks and the poor, you’re guilty until proven innocent once you’re given that bail,” he said.

“So some days, it’s exciting because I get to just see that look on people’s faces. And other days, it can be depressing, because like, on a continuous basis, you see people that look just like you. It’s like, every day I’m coming to bail myself out of jail. It can become heartbreaking. It takes its toll on you mentally.”

Some counties in Ohio use a pretrial risk assessment tool when determining whether or not someone should be given bail. The tool is essentially an algorithm that predicts failure to appear in court. The Cleveland Municipal Court uses the Public Safety Assessment from the Laura and John Arnold Foundation. The PSA uses nine factors to generate scores that predict three outcomes.

The first, failure to appear pretrial, the second, new criminal arrests while on pretrial release and the third, new violent criminal arrest while on pretrial release. Hundreds of localities in 19 states use the PSA, but critics of it say that it disproportionately puts people of color at a higher risk of being held in jail pretrial.

Jocelyn Rosnick is one of those. She’s a policy director at the American Civil Liberties Union of Ohio.

“They’re riddled with bias,” she said. “They rely on criminal justice data and we know that there is bias from policing in certain communities all the way through sentencing.”

In March, the Supreme Court of Ohio announced some new requirements with regard to bail.

The court decided that all 28 counties with multiple municipal or county courts must adopt a standard bail schedule. This way, bail will not differentiate depending on the court you are in. It also requires release on personal recognizance as the first option before deciding if bail is necessary. The rule went into effect on July 1.

“I always say, you know, Neil Armstrong, he said, ‘that’s a small step for man and a huge step for mankind,’” Body said.

“Well, we will say, ‘that’s a small step for man, like Black men, especially Black men like me, that are disproportionately impacted by the system. It’s a small step for them. But it’s a huge step for Ohio. One huge step. We need plenty more steps.’”

Now, we move to a state that has seen major reforms to the bail system, New Jersey.

In March 2013, Luminosity in partnership with the Drug Policy Alliance published a report about the current state of jails in New Jersey. In the report were three startling findings. The first was that 71% of people in jails were either Black or Hispanic. The second was that about 50% of people in jails were not being held on violent crimes, sex crimes or weapon offenses. And the third was that almost 40% of the jail population was there because they could not afford to post bail. That means they were not serving a sentence, had no holds and could have been released if they had the money to pay.

In response to this report and other calls for reform, Chief Justice of the New Jersey Supreme Court Stuart Rabner put together a joint committee on criminal justice to find a way the system could be reformed.

Alex Shalom, senior supervising attorney and director of Supreme Court advocacy at the ACLU of New Jersey was a member on that committee.

The committee brought together a group of people who rarely see eye-to-eye. Politicians, prosecutors, public defenders, chief counsel for the governor and members of the legislature had the assignment of figuring out ways to reform the system without having to write new legislation.

Their decision was unanimous.

“That there was no way to tinker with the system,” he said. “The only way to fix the system would be to reimagine it, to transform it from a system that made its initial decisions about freedom or detention based on resources, how much money you have to one that made those decisions based on a perception of risk.”

So, that’s what they did.

The New Jersey Criminal Justice Reform Act took effect on Jan. 1, 2017 and it implemented the assumption that all people charged with a crime, other than those facing life imprisonment, are deemed innocent and should not be held in jail pretrial.

Now, when someone is arrested, a police officer has two choices: they can give someone a summons, which happens for most low-level offenses, or they can issue a warrant. A summons is just a ticket that tells the person to show up in court on a certain date. A warrant is what you would typically imagine as a usual arrest. The police officer handcuffs the person and takes them to the police station.

After an arrest, New Jersey uses the same Public Safety Assessment that is used in some counties in Ohio. But Shalom says the PSA doesn’t make a definitive decision. A lawyer is present with a defendant at every stage, even the initial hearing.

“That doesn’t decide anything, but it does inform the decision,” he said. “You have a lawyer at all stages, right? So the person is represented by counsel.”

An appearance hearing is held within 24-48 hours of someone being arrested, and at that hearing the judge reviews the PSA score and hears arguments from a prosecuting attorney and a defense attorney. The result of that hearing is either a release, a release with conditions like house arrest or electronic monitoring, or the defendant is held in jail and must be indicted within 90 days.

“Theoretically, the judge is also allowed to consider financial, money bail, but money bail can only alleviate the concern that you won’t show up. Money bail cannot be used to protect the public or to prevent obstruction,” he said.

Data from the ACLU of New Jersey shows that after the first year, almost 70% of defendants were issued a summons, not a warrant. Of those who received a warrant, almost 60% of cases were resolved or released after the first court appearance. Only about 6% of people who received a summons or warrant were detained. Despite these positive results, Shalom says there’s still work to be done.

“That’s on the positive side with these huge reductions in jail population, but our jails remain disproportionately Black and brown. And it’s still important that we have several 1,000 fewer people in jail now than we did before,” he said.

“But it also reminds us of how much work we have left to do. We want to have a system that’s a fair one. That’s one where liberty is respected and fairness is respected.”

Kentucky, Ohio and New Jersey aren’t the only states reforming the bail system. Illinois, California, New York, Pennsylvania and others are making reforms.

Some have taken drastic measures, completely reimagining the system, while others have started small and tried to build upward. There doesn’t seem to be a single right answer, but it seems likely that for dramatic change to happen, dramatic reforms need to be made with precise consideration. If West Virginia wants to make changes, it has a number of states it can learn from.

A Family Business Is Focused On Releasing People From Jail, Keeping The Community Safe

Staci Kisner is the owner of Bill’s Bail Bonds, one of the largest bail bonds businesses in West Virginia.

“I think misconceptions are people thinking we’re just trying to get their money. You know what I mean? And I’m not saying there’s some bail bondsman that are, you know, kind of crooked,” she said.

When someone is arrested in the state, a judge may decide that bail is necessary to ensure that the person accused will return to stand trial. If the person has the money to pay bail in full, they get it returned to them after all their court cases. If they don’t, they have the option of paying 10% to a bail bondsman, who guarantees they will show up for court. The bail bondsman keeps the 10% whether the person shows up or not.

Kisner files surety bonds with clients, which is simply a three-party agreement between the court, the bondsman and the person accused. If that person fails to appear, the bondsman, who is the surety, is responsible for finding them and bringing them back to the court. This takes the burden off of the court so that taxpayer money is not used to find someone. Kisner says that this reason alone is important enough for the bail bonds industry to stay afloat.

And that’s what she and her family have been doing for the last 17 years.

“We try to build it on being genuine, respecting the clients,” she said. “Yes, they’re criminals, but they’re still people. So we respect them and we try to treat them like that.”

It’s also important to maintain a working relationship with the court systems even in times of disagreement, according to Kisner.

“And we try to treat the courts accordingly because you can’t make the courts mad. Now there’s times I really have to bite my tongue with them. But you know you have to consider that, too,” she said.

In her office in downtown Morgantown, canvas signs reading “imagine,” “dream” and “believe” decorate the walls. A range of books fill the bookshelf next to her desk with books like “Hope for Today Bible,” a dictionary, thesaurus and a business owner’s law guide. A chart sits on her desk covered in ink from top to bottom with names, phone numbers and locations of people who are seeking services from Bill’s Bail Bonds.

The business has been in her family since 2004. Bill, the business’s namesake, opened it that year and his daughter took the reins when he retired in 2018. It’s evident that family is important to her by the numerous photos of her children, nieces and nephews that sit in frames throughout her office.

“My daughter works here, my son works here and then my nephew works here. And that’s in the main office. And then we have agents throughout the county,” she said.

The data at the county level is sparse, so it’s not known exactly what percent of incarcerated people who are released pretrial don’t show back up for court. However, Kisner’s belief is that the bail bonds industry saves people money. In 2019, the Pretrial Justice Institute studied 91 jurisdictions and found that 63% of jurisdictions surveyed either did not collect data on court appearances or did not know whether they did.

“So if they don’t show up for PR bonds, then the state, the county has to spend their time and money to go hunt these people down. Whereas when we do a surety bond, if they don’t show up for court, we’re responsible to go get them,” she said.

“That doesn’t cost the taxpayer any money. We go get them and return them to the court. And once we return them to the court, then the courts do whatever they decide to do with them.”

As states across the country have begun to reform or abolish the money bail system, the bail bonds industry has fought back.

In West Virginia, HB 2419 was the legislature’s attempt at reforming the way judges and magistrates distribute bail. The bill encourages a judge or magistrate to release people charged with certain nonviolent crimes on personal recognizance bonds, instead of charging them with a cash bond.

In part, the bill was supposed to reduce the number of people in regional jails throughout the state. Theoretically, the bill seems like it would hurt the bonds industry, but Kisner said she hasn’t seen too much effect from it.

She said she believes that the court system may regret extensive bail reform because without the bonds industry operating, the burden of keeping track of many people in the justice system will fall on the state.

“And I think that in the long term people or the Senate or whatever are gonna be like, what were we thinking? Because now we have all this, you know, mess. And we don’t have anybody, bail bondsman to regulate it.”

Bondsmen have played a role nationally in the bail reform conversation. In California, in 2018, after former Gov. Jerry Brown signed a bill that would eliminate the cash bail system, the American Bail Association PAC ‘Californian’s Against the Reckless Bail Scheme’ raised almost $3 million in a campaign to get signatures on a ballot that would override the bill so the bill never became law.

David Bourne is a bail bondsman in August County, Virginia and a spokesman for the Professional Bail Agents of the United States.

“I’ve been in the bail industry for 30 years. I was a police officer before that. I’ve raised two sons, who are police officers, and so I’ve got some in depth experience at it,” he said.

In addition to his work at PBUS, he’s the president of the Virginia Bail Association and oversees agents in Virginia, West Virginia, North Carolina and South Carolina. He argues what’s broken about the system is not bail itself, it’s profiting in general from incarceration.

He recounts times where he, as a bail bondsman, has had a closer relationship with the incarcerated person and their family than anyone else.

“The missing element is the trust that’s built between the bail agent and the defendant or the defendant’s family,” he said. “They will tell us things that they will not tell the police.”

In the instance that someone is struggling with substance use disorder, Bourne said that parents tend to be more comfortable calling the bail bondsman if their child begins to use drugs again instead of the police.

“If we’re not in the picture, they’re not going to call the police and say, ‘my, son’s here with drugs, and he’s injecting again.’ They’re not going to do that, because the police is going to come, they’re going to arrest him for a new drug charge, and send him to jail,” he said.

Bourne discussed indemnity agreements, which are contracts that place a family member responsible for the entire cost of bail if the defendant fails to appear in court. He said these agreements help with ensuring appearance in court.

“The indemnity agreement is about providing some supervision without costing the taxpayer any money. Because if I sign an indemnity agreement, insuring a company that I will protect them for a loss if my son doesn’t go to court, then I’m inclined to keep an eye on my son to make sure he doesn’t do anything, conduct any kind of behavior, that’s going to put me in financial jeopardy,” he said.

As a supporter of the money bail system, Bourne does believe there needs to be a $10,000 cap on assigned bail.

“And we shouldn’t look at the defendant’s circumstances, where they live or how much money they make to afford that bond. The bond should be determined by evaluating where this person could go,” he said.

One option, listed in West Virginia’s HB 2419 is that judges can sentence people to home confinement with an electronic device monitoring them.

In West Virginia, the price of the electronic monitoring program varies by county. In Kanawha County, the initial installation fee is $50 plus $52 for every week the person is monitored.

As a former police officer, Bourne is also concerned that sometimes magistrates get it wrong. For a lot of people who oppose bail reform, that’s a big deal.

He shared the story of Jasmyne Hayslett, a 19-year-old woman from Staunton, Virginia. She had been in a relationship with 19-year-old Zachary Ham and the two had a baby together.

The News Leader reported that sometime in 2015, the couple split, and on Sept. 22 of that year Hayslett filed a police report accusing Ham of strangling her. He was arrested and charged with misdemeanor domestic assault and an emergency protection order was issued. Ham was released on a $1,000 unsecured bond, which means that he just needed to sign an agreement that if he failed to appear in court, he would owe the $1,000.

Then, less than two weeks later, he shot and killed Hayslett and soon after shot and killed himself. Bourne says that a secured bond or even a refusal of bond could have saved both their lives.

“I can’t tell you with 100% certainty that a secured bond would have saved her life. I can certainly tell you that no bond would have saved her life,” he said.

What Bourne and most bail reform advocates can agree on, is that right now, people living in poverty are the ones most affected by the way the system is operating. For people who are unemployed or dealing with substance abuse, it’s harder to even qualify for bail. Not to mention, just a few days in jail could result in losing your job or your house.

Devon Unger, a staff attorney at the West Virginia Innocence Project and former public defender, says as a result, many people living in poverty are forced to take a plea deal, even for crimes they may not have committed just so they can be released from jail.

“I would argue that there are a lot of wrongful convictions, over convictions, or coerced pleas that occur in this country, as a result of pretrial detention due to cash bail,” he said.

Unger recalls times where his clients pleaded their innocence, but accepted a plea agreement from a prosecutor so that they could be released from jail more quickly than if they fought the charge.

“And if the choice is to sit in jail for two or three months, at minimum, to fight your case, until a trial date is available, or take a plea to something you didn’t do to get out of jail that day, people are going to take the plea,” he said.

Some states have non-profit organizations helping people currently in jail receive access to wrap-around services and even to help them get out. Anthony Body works as a bail disruptor in Cleveland, Ohio called The Bail Project.

“A bail disrupter, we’re just here to disrupt the system,” he said, “It’s an unjust system.”

Before the COVID-19 pandemic, a typical day for Body started at the public defender’s office to receive a list of incarcerated individuals who could be eligible for services. Next, he spends most of the day inside the Cuyahoga County Jail interviewing clients and offering applicable assistance.

“I call it speed dating in a sense,” he said.

Bail disruptors are part of a program designed by The Bail Project to help get individuals who are incarcerated pretrial released from jails around the country.

Coming up on the finale of $50,000 to Freedom: Exploring Bail in West Virginia, reporter Patrick Orsago speaks with lawyers, bail disruptors and other policy experts from around the country to break down how other states have reformed the money bail system and how West Virginia’s bail reform efforts stack up.

West Virginia’s Bail Reform Bill: How It Works And Who It Serves

In the first episode of this series, the focus was on the story of Lisa Hartline— a legal aid lawyer who found her calling while incarcerated and unable to make bail. Just like Lisa, Deborah Ujevich dated a man who got caught up in drugs.

In August 2015, a Weirton police officer showed up at Ujevich’s front door. Her fiance at the time worked for a fencing company and was caught searching through an apartment unit on the job site.

“I think that my then-fiance, had gotten involved with I think it was crack cocaine. And I guess they were going in and out of units in that building looking for I don’t know, money or something to see or something like that. So they got caught,” Ujevich said.

Ujevich was in Ohio at their home, having no idea that this was going on. Her ex-fiance told the police that her uncle lived in the building he was found searching in. Ujevich told the police that was not true.

The police continued to question her and insisted she go to the police station to make a statement. She refused and claimed she did not have to because she told the police all she knew. The conversation became heated.

“He said he was going to put me under arrest for obstructing an officer. So I was horrified, and had no idea,” Ujevich said. “So I fought him. And then they gave me a resisting arrest charge.”

While she waited at the police station, another officer began to ask her if she knew anything else about what her ex-fiance was doing in Weirton.

“And somebody else who was just dressed in street clothes stopped by and asked me if I was there in conjunction with an incident. And I said ‘No, it wasn’t me,’” Ujevich said. “And he said ‘Did you know what was going on?’ And I said, ‘Yeah, I had a really good idea of what was going on.’”

Ujevich was charged with conspiracy to commit burglary. The logic was that she had possessed knowledge about guilt and not notified the authorities. Her bond was set for $20,000 and she waited two and a half months in Northern Regional Jail before she was found guilty of a felony conspiracy charge. She served a total of 20 months incarcerated spread out between Northern Regional Jail, Tygart Valley Regional Jail and Lakin Correctional Center.

Ujevich was never able to learn the full details about what her ex-fiance was involved in because as co-defendants, they were not able to speak, and he died before she was released from prison.

Today, Ujevich works as a community organizer for WV Family of Convicted People and as a detox intake coordinator in Cross Lanes, West Virginia.

“I think one of the things that hit me the hardest was that we’ve had over an 80% increase in jail incarceration in the last 20 years,” said Quenton King, a policy analyst at the West Virginia Center on Budget and Policy. He spoke from his home in Jefferson County about HB 2419, a bill that became law in June 2020 that aimed to reform the bail system so that more people charged with nonviolent crimes are released pretrial or with the least restrictive bail amount. He published a report in January about the number of counties struggling to pay regional jail bills.

The West Virginia Center on Budget and Policy reports that the jail population saw an 81% increase between 2000 and 2019. According to the WV Division of Corrections and Rehabilitation’s Annual Report, in 2018––before HB 2419 was passed––the average jail population was over 5,000. A goal of the bill was to reduce the overcrowded jail population, but in early March of this year, nine months after the bill went into effect, there were almost 6,000 people in regional jails. At the end of July, there were 5,420 people in jails.

According to King’s report, it cost about $48.25 per day to house someone in a regional jail. Between 2015 and 2019, counties weren’t able to meet the bill requirements and fell short by an average $2.3 million per year. Since 2014, two out of every three counties were unable to pay the jail bill in full.

So if the county can’t pay, who does?

“At the end of it, West Virginians are paying for West Virginians being incarcerated,” said King. “But every dollar spent on incarceration is a dollar that can’t be spent on education, or on welfare for your citizens or a good park, something that really helps people.”

In West Virginia, regional jails mostly house pretrial defendants–– people who haven’t been charged with a crime yet, but who either aren’t allowed to be released before trial or can’t afford the cash bond. Jails also house people convicted of minor crimes who are typically sentenced to a year or less of time.

King’s report found that if the pretrial population was lowered by just 25%, then counties could have saved up to $11 million in 2019.

“The fact that over 50% of our jail population is pretrial. That kind of holds true across the country, it’s not just our state. Many people will say that some people have to be there, and that’s fine. If you’re a pretrial for murder, perhaps you should be in jail. But many people are just there because they missed a court date, or some other really small miniscule crime that shouldn’t result in incarceration in the first place, and are still in jail pretrial.”

HB 2419 was the legislature’s attempt to address some of these issues, but it doesn’t actually change anything about the way judges and magistrates assign bail. It’s more like guidelines than rules. Experts cite three concerns with the law.

The first: no one can agree how to interpret it. Some argue the law applies to both nonviolent misdemeanors and felonies,while others insist it only applies to misdemeanors. This distinction is important because in late July, pretrial felons made up about 39% of the jail population, according to the DCR.

Former state Delegate John Shott, a Republican from Bluefield, was the lead sponsor of the bill. Even he admits it’s a tricky law.

“It was purely limited to misdemeanor offenses,” Shott said. “It was expanded to include misdemeanor offenses and it applied to any other offense, which carried a penalty of incarceration. So, misdemeanor offenses and felony offenses. And most felonies do carry a penalty of incarceration.”

He does admit that other people he’s spoken with interpret that differently.

“Now, I will say that some people that I’ve talked with interpreted that to mean only other misdemeanor offenses, which carried a penalty of incarceration, it’s not totally clear,” Shott said.

Devon Unger, a staff attorney at the West Virginia Innocence Project and former public defender, said the broad language of the bill implies that both types of offenses qualify.

“The plain language of the statute applies to felonies and misdemeanors,” he said. “So I mean, I’m confident in saying any prosecutors or judges that are interpreting this to only apply to misdemeanors, they need to read it again, because they’re reading it incorrectly.”

But Kanawha County Prosecuting Attorney Chuck Miller says he interprets the bill as only applying to misdemeanor offenses and that’s how he advises his staff to interpret it.

“The overall intent of it is to keep low-level offenders, primarily people who commit misdemeanors from having to sit in jail until their case is resolved. I don’t see it,” he said.

Another concern is this: There are a number of crimes listed on the bill that if committed, are excluded from qualifying for a personal recognizance bond. And Unger says these exceptions to qualify make up the majority of arrests.

“The offenses that come to mind off the top of my head, where mandatory release would apply, would be something like driving on a suspended license. Maybe a disorderly conduct if it doesn’t involve the actual use of violence or threat of violence, a disorderly might qualify, but you really have to do some analysis,” Unger said.

So, the first problem is that no one really agrees on the seriousness of crimes under the law as written. The second is iit doesn’t apply to most people in jail and the third, and arguably the biggest issue with HB 2419, is it doesn’t offer clarity on what what judges or magistrates should do.

“So, it’s kind of not a clear answer. There is some mandatory language in there, but it’s very limited. For the most part, judges still have discretion to set cash bail in the vast majority of cases, both misdemeanors and felonies,” Unger said.

Other states have handled bail differently. For example, when New York amended its bail system in 2019, the government eliminated the use of cash bail in all but 10% of crimes.

In Illinois, the Illinois Pre-Trial Fairness Act passed earlier this year completely abolished money bail.

But in West Virginia, the legislature spent almost three-and-a-half months amending a bill that, in its final form says, “the arrested person is entitled to the least restrictive bail conditions determined reasonably necessary to ensure appearance as well as ensure safety of persons in the community and maintenance of evidence.” In other words, it’s at the magistrates discretion.

Delegate Brandon Steele, a Republican from Raleigh County, voted against the bill in 2020. He said in his county, the prosecuting attorneys, defense attorneys, magistrates and judges have a working relationship where incarceration isn’t always the answer.

“I just looked at my personal experience in Raleigh County, you know, why am I taking away the discretion of my magistrates in Raleigh County, when I know that nine times out of 10, they’re going to do a [personal recognizance] bond in that situation anyway?” Steele said.

“I think we have a healthy relationship in Raleigh County, with our magistrates, our prosecutors, our defense bar, that all of us realize that we are operating a system here, everyone’s trying to make sure that society functions normally,” he said.

One piece of the bill not discussed yet is that it does allow for a lawyer to return after bail was set to argue that it was too high and request for a reduction or release on personal recognizance.

Two years ago, when Shott sponsored a bill similar to HB 2419, it said that within 10 days of the bond being set, a lawyer could argue for a reduction. But critics said that was too long because 10 days in jail could really mess up someone’s life. In HB 2419, that time limit was reduced to three days. But Shott critiques that part.

“That’s become a real problem, especially in some of these smaller counties, where they have maybe one prosecutor and one magistrate. And they have a pretty significant workload, trying to do that within 72 hours is quite a burden, and in some cases, I’ve been told it’s impossible,” Shott said.

In the most recent legislative session, another bill was passed to amend the time limit for a bond hearing. It extends the hearing limit to five days instead of three.

Maybe the question here is, was the bill amended in such a way that it would virtually have no effect on the bail system at all?

Obviously, there’s some grey-area in the text of the law, and it appears not to be affecting the people it was aimed to affect, those incarcerated in regional jails.

If everyone was on the same page, and magistrates released all people arrested for non-violent misdemeanors on their own recognizance, would it decrease the jail population and save taxpayers money?

Staci Kisner says she’s not so sure. Kisner owns one of the largest bail bonds businesses in West Virginia.

“The thing is about bail reform, they’re wanting to release these people on PR bonds. Okay, so if they don’t show up for PR bonds, then the state, the county has to spend their time and money to go hunt these people down,” Kisner said.

“Whereas when we do a surety bond, if they don’t show up for court, we’re responsible to go get them,” she said. “That doesn’t cost the taxpayer any money. And then once we return them to the court, then the courts do whatever they decide to do with them. If they fail to appear, we’re going to go hunt them down.”

The Human Cost Of Bail

Lisa Hartline grew up in Parkersburg. Today, she is an attorney at Legal Aid of Pennsylvania representing people who can’t afford a private attorney because she used to be one.

“I think I’m more willing to make exceptions when maybe clients aren’t following the plan that they need to follow because I know what it’s like,” she said. “They know how hard I’ll fight for them because I know what it’s like to be in their shoes.”

She knows what it’s like to sit in front of a judge in both a pants suit and a jail uniform. I drove to Washington, Pennsylvania, where she lives to speak with her about her experiences while she was incarcerated.

Hartline lives on the ground level of a duplex, near Washington and Jefferson College. Uplifting messages like ‘you got this’ hang on decorations in the bathroom and portraits with abstract shapes and colors of people and landscapes from tropical areas like the Caribbean hang on the walls. She shared stories with me, both good and bad, about how she became incarcerated.

She told me about a night in 2006 when she was arrested in West Virginia after her boyfriend sold drugs to someone wearing a police wire.

“When the doorbell rang, he made me go answer the door. So I answered the door, let the person in. And I went into the bedroom and wasn’t present for anything else after that,” she said.

Hartline said the police did not see the couple leave the house. It wasn’t until hours later that they found them at a convenient store.

“It was like hours later, all of a sudden, the police swarm on us. Apparently, they didn’t see us leave, and somehow missed us. They had the building surrounded,” she said.

She was charged with possession with intent to distribute and her bond was set for $20,000. She knew she hadn’t been present for any kind of transaction, so she fought the charge and insisted on a preliminary hearing.

The police dropped the possession with intent to distribute charge and instead charged Hartline with a conspiracy charge and raised her bond to $50,000.

“Which makes no sense because the purpose of bond is just to ensure you appear in court,” she said. “Well, if I couldn’t get out on $20,000, why would you need to increase it to 50 for a lesser charge?”

Because Hartline could not afford the $50,000 set for her, she spent the next four and a half months in North Central Regional Jail in Greenwood, West Virginia, and another year in home confinement before the charges were dropped due to a lack of evidence.

Hartline said it’s usually more difficult to negotiate a fair bail amount when someone can’t afford a defense attorney.

“So basically because I had a public defender, and they’re overworked. That’s the difference between people with public defenders and those who can pay for attorneys is you end up having to do a lot of the work yourself because they don’t have the time,” she said.

“I was trying to come up with an alternative to sitting in jail for a crime I had not only not been convicted of but knew I didn’t commit and knew they had no evidence that I committed that crime and if and when it finally went to court, I would never be convicted,” she added . “It felt even more unfair because I knew there were crimes I did commit during my use, not anything serious, they were all drug-related . But to go to jail for something I knew I didn’t do just felt so wrong.”

Lisa Hartline in her office at Legal Aid West Virginia. Today, she works at Legal Aid Pennsylvania.

Hartline is no stranger to the criminal justice system. She spent a fair amount of time in and out of North Central and South Central Regional Jail for tax fraud and other drug-related crimes. Her longest stint incarcerated was almost a year and a half.

During her various stints incarcerated, she said her bond was typically set around $10,000. A bond is an amount of money a judge or magistrate decided Hartline needed to pay in order to be released from jail and await her trail at home. She had been arrested and accused of a non-violent crime, but had not been found guilty yet, and the trial date can sometimes take days to set.

“Usually it was around $10,000, which we all know I can’t afford $10,000. Most people can’t afford to just hand over $10,000, especially those who end up in the criminal justice system,” Hartline said. “And so you would have to resort to a bondsman and pay 10 percent was the only way you could get it.”

When you’re arrested in West Virginia, you’re taken to a regional jail. There are 10 throughout the state and they make up the Regional Jail and Correctional Facility Authority, a part of the Division of Corrections and Rehabilitation. The judge or magistrate sets bail depending on the crime you’re accused of. Once it’s set, the accused person––or someone else––can pay the entire amount in cash, or pay a bail bondsman 10 percent of the total amount. In Lisa’s case, she would have had to pay $5,000 in 2006 when she was charged with conspiracy.

The bondsman holds authority in the courts, so once they receive 10 percent of the bail, they sign the bond, guaranteeing the person accused will show up for court. If not, then it’s the bondsman’s responsibility to get that person to court. Once paid, the person is released.

If you pay the full bail to the court, you get most of the money back after all your court appearances, whether you’re found guilty or not and after court fees. If you use a bondsman, they keep the 10 percent as a fee. In any event — the whole point of bail bonds are to motivate people to show up for trial, rather than run away. Judges can also decide that a person is trustworthy enough to return for trial without setting a bail amount and release them on their own recognizance.

There is not a lot of state or national data that informs how often people show up for trial. In 2019, the Pretrial Justice Institute studied 91 jurisdictions and found that 63 percent of jurisdictions surveyed either did not collect data on court appearances or did not know whether they did. However, in Mecklenburg County, North Carolina, researchers found that court appearance was above 80%.

Numbers from different states may not be comparable. But conditions remain the same. If you aren’t released on recognizance and can’t afford bail, you have to wait for your trial in jail. Researchers with the Brookings Institute say that people accused of felonies who can’t afford bail usually wait two to six months in jail.

But in West Virginia, nobody is measuring the average stay in jail before trial for someone accused of a felony.

So much of Hartline’s motivation to be a legal aid attorney is wrapped up in that experience of having to figure out how to advocate for herself, in lieu of literally any other option.

“I had to get creative and come up with some kind of solution myself,” she said. “Whereas had I been paying an attorney who was working by the hour for a higher rate of pay, they would have done the legwork. So there’s a big difference when it comes to finance, indigent inmates and those with money, when it comes to things like that as well.”

Hartline had no other choice, but to wait in jail for four-and-a-half months because she could not afford the $50,000 bond assigned to her.

High bond is not an issue unique to her.

In fact, so many justice organizations believed bail was responsible for jail overcrowding that a number of states began to work on bail reform to decrease that population.

In 2018, there were, on average, about 5,000 people in West Virginia regional jails per month. That’s up about 30 percent since 2010. In early March of this year, the regional jails were overcrowded by about 1,700 people. At that same time, about two of every five folks in jail were just stuck there because state prisons were full to capacity.

In 2020, West Virginia legislators tried to follow the national trend of reforming the bail system when the legislature passed a bill to limit bail for certain nonviolent crimes. The hope was to reduce the number of people in regional jails. This bill, HB 2419, called for judges to release certain nonviolent offenders out on personal recognizance bonds. It passed with an overwhelming majority, 79 to 21.

That means, if a person is charged with a certain, nonviolent misdemeanor offense––like driving with a suspended license or a public indecency charge––then a judge or magistrate should assign the lowest amount or should use discretion to release that person until their court date, unless they’re proven to be a risk to society.

Some interpret the bill as applying to certain nonviolent felonies, too. In that case, the judge who holds jurisdiction where the crime occurred will decide whether or not to release the accused person. The bill doesn’t apply to violent crimes, if the victim is a minor, serious drug crimes, sexual abuse or a serious traffic violation.

The heart of this law is to alleviate the disproportionate effect of bail on people living in poverty and to decrease the jail population by allowing more people to make bail.

The bail system disproportionately punishes people living in poverty, according to Devon Unger, a staff attorney at the West Virginia Innocence Project, who was a former public defender in Harrison County and a former private defense attorney.

“It’s poor people, it’s people who just do not have access to, you know, cash or credit or property. You know, these are the ones who you know, cash bail effects because if you have money if you have property, if you have resources, you know, you’re able to meet the requirements and get out of jail,” he said.

As a child, Hartline didn’t have much growing up. Her parents divorced when she was very young and her mother, the sole provider of income, often worked two jobs just to pay the bills. At 16, Hartline found out she was pregnant. She married the father and together they had two more children.

Hartline said the poverty in her family wasn’t uncommon in the area she grew up in.

“There were so many poor people in that area that like the local convenience stores would buy big bags of diapers and like cut them in half and sell them for a reduced price because they knew people sometimes only had a few bucks and needed diapers, and you couldn’t buy a pack for that” she said.

Hartline describes her life at that time as one continuous dead-end.

In 1996, Hartline and her husband were arrested for submitting fraudulent taxes to the IRS. Her sister adjusted the couple’s joint taxes so that they could receive a larger refund. Eventually, her sister was caught, and at 21 years old, Hartline was charged with six months of home confinement.

She had to repay the money she owed and serve five years of probation. During that time, she tried crystal meth at a party and became addicted to the drug. She failed a routine drug test that was part of probation. As a result, she spent four months in South Central Regional Jail in Charleston.

“The feds came to town and pretty much cleaned out all of the manufacturers of that,” Hartline said, referring to crystal meth.

Over the next few years, a lot changed in her life. She divorced her husband, was arrested multiple times in Parkersburg for various drug crimes and entered treatment for her substance use disorder. During that time, she began dating another man who sold crack cocaine––the same man who led to her arrest in 2006. Eventually, she tried the drug and fell into another vicious cycle of substance abuse.

“I just thought, oh, that’s the worst drug to ever do. So to have done it was crazy, but it’s true what they say that you can get hooked just using it one time, and it was just downhill from there,” she said.

I asked Hartline to describe her experience during her four and a half months in North Central Regional Jail in Greenwood while she waited for a trial that would never come.

“Basically, you’re always pretty much at least two people in a cell. And these cells are made to be for one person, there’s one bed, if you call it a bed, it’s a concrete slab that is attached to the wall, and you get like one of those old gym mats you used to use in school. And that’s your mattress. And there’s a toilet with a sink on top of it and some hooks on the wall to hang like towels and stuff,” she said.

Hartline said there’s little privacy in jail cells.

“The light never goes out completely because they have to be able to count you at all times throughout the night to check on you,” she said, “so you have to learn to sleep with the light on and of course you’re locked in. It’s really tiny. It’s all concrete floors, concrete, brick walls, steel doors, everything is bolted down, you can’t move anything.”

She said her time in jail created a lot of anxiety because there is nothing to do and no place to go all day long.

“I would walk around in a small circle around the width of the pod from morning till night because I had so much pent up energy. And I would do it in my socks. And I’d wear holes down through my socks, like from walking so much just because it’s just so awful,” she said.

A report from Reuters found that West Virginia jails had the highest death rate of the 500 jails studied. Between 2009 and 2019, 111 people died in West Virginia regional jails––a rate 50 percent higher than the national average. More than one fourth of those deaths were from suicide.

However, it’s important to note that officials at the West Virginia Division of Corrections and Rehabilitation say the claim that the state’s jails had the highest death rate in the United States isn’t accurate because of the number of jails and jail deaths left out of the report.

Lawrence Messina is the director of communications for the West Virginia Department of Homeland Security, which oversees the DCR. I tried reaching out to him but he denied my request for an interview. He is on record with the Charleston Gazette Mail saying, “West Virginia only has 10 jails, so 100 percent of its data was included, but for the other states, this approach excluded more than 2,600 jails, along with more than 3,300 inmate deaths just from 2008 to 2016.”

The time Hartline spent in jail took a toll on her. After four-and-a-half months, rather than pay bail, the circuit judge allowed Lisa to be released to the Clarksburg Mission where she would be held under home confinement for a year.

After a year, the court dropped the charges due to a lack of evidence, so after a year and a half, Lisa was released without ever being convicted of a crime. When she was released from home confinement, she said so many of her belongings were stolen from her house.

“When I got out there was nothing left at my house — like people had taken everything because they knew I was in jail,” she said.

“So I had to start from scratch with just the clothes on my back. And in a new city out of place, I didn’t really know anybody that well. But that was the price, you know, I had to pay, to be able to make bail because they refuse to lower it at all”

If this would have happened to Hartline in 2021, after West Virginia’s bail reform bill became law, would the magistrate have decided that $50,000 was too much and reduced it to an amount she could have paid? Well, it depends on the county you’re in.

Quenton King, a policy expert at the West Virginia Center on Budget and Policy, says the new law hasn’t changed a single thing. One of the main reasons for that, according to King, is the lack of comprehensive data collection on who is going to jail for what crimes.

“The only thing that we see are the total number of people in jails on any given day, and so it just has your pretrial felon, your pretrial misdemeanor and we see the number is either staying the same, maybe increasing, maybe decreasing, but in general, it’s barely moved, the pretrial number since June,” he said.

There is no county data collection either, so researchers and legislators are unable to tell which counties the law is helping and which need more help.

“Another problem is I don’t know which magistrates are doing it well. It’s very possible that judge A in Jefferson County saw the law and saw the policy change whereas judge B might ignore it, not know about it or not care, and just keep doing what they were doing before, or worse,” King said.

West Virginia jails are still overcrowded even in a time when many jurisdictions around the country are reducing the incarcerated population to keep COVID-19 from spreading.

Of the jails that are overcapacity, Southern Regional Jail and North Central Regional Jail were the worst at nearly 63 percent in early March. About four months later, on July 29, there were 5,420 people in jails, which was 1,155 people over capacity. North Central Regional Jail, for example, has space for 564 people and had 854 incarcerated that day.

So, why isn’t the bill even doing what it was designed to do? Or, has the problem become too large to control? Is the state’s bail system broken, or is it operating in the way it was designed to? What about bondsmen? How would reforms affect business? I’m going to try to answer those questions and more in the episodes to come.