This story is the first in a multipart series examining pretrial release programs, the cash bail system, and West Virginia's growing prison and jail overpopulation problems. This story was produced in conjunction with the John Jay College of Criminal Justice in New York.
HUNTINGTON, W.Va. -- The folder on the table in front of Tina Sarver is filled with the names of people who recently found their way into the Western Regional Jail, along with narratives explaining what they did to get there.
Their charges are relatively minor. A drunk and disorderly. A driving under the influence. No proof of insurance. Battery. Obstructing a police officer.
No one has enough money to post bail and go home.
"Part of my job is to get everything I can background-wise on these people," the probation officer said after the lunchtime work session, which is attended weekly by a cocktail of law enforcement officials, public defenders and day report workers. "We know exactly who that person is, what information is available and what they're charged with."
In 2009, Cabell County formed a team to review the regional jail intake, pick out low-level criminal defendants who can't post their sometimes-arbitrary bail, and take the steps to have them released.
Lawmakers caught on, too. That same year, staring down the barrel of a prison and jail overpopulation crisis and crippling corrections costs, the Legislature passed a bill (SB 760) that gave the state Supreme Court the authority to establish pretrial release programs in up to five counties "with the aim of reducing regional jail populations of short-term detainees."
The state Division of Justice and Community Services funded the pilot with a $300,000 grant, dispersing it evenly between Mercer, Wayne, Brooke, Greenbrier and Wood counties as officials from each jurisdiction gradually showed interest in starting their own release programs.
But while officials close to the pilots have lauded them as a success, little data exists to suggest that there has been a measurable impact on regional jail spending. In fact, since 2011, regional jail bills have risen in every pilot county except for one.
Pretrial officers have also shunned other statistics -- like instances when released inmates fail to show up for court -- that experts say generally serve as a standard in measuring the success of pretrial release programs.
Meanwhile, pretrial release faces heavy opposition from the commercial bail bonding industry, which cites cash bail as the most effective means of insuring that a released defendant shows up for his court date. Pretrial advocates, on the other hand, say that bondsmen are just concerned that release programs will cut into their bottom lines.
Risk and reward
In many West Virginia counties, bail works like this: John Smith's wife calls the police and alleges that her husband hit her. Police investigate, find some merit to the woman's claims and take Smith into custody.
Smith then appears before a county magistrate, who arraigns him on domestic battery charges and sets a cash amount -- $500 in this case -- that Smith will have to post as collateral if he wants to go home. That's his bail, and the point behind the deposit is that he gets his money back if he makes his court appearances.
If he can't pay, he's sent to the regional jail, where he will stay until he can come up with the money. That's generally where a bondsman comes in.
Smith agrees to pay the bondsman, who is usually backed by an insurance company, a percentage of his overall bail as a non-refundable fee. The two parties agree to 10 percent, and Smith forks over $50. In return, the bondsman pledges the rest of Smith's $500 bail to the court.
Assuming Smith makes all of his court appearances, the bondsman stands to profit $50. But if Smith packs his bag and flees the county, the bondsman is in the court's pocket for his client's full $500.
But what if Smith can't pay the $50 to the bondsman in the first place?
Enter pretrial release.
In theory, judges are supposed to choose a bail amount that simply insures that a defendant is somewhat financially bound to his court date. In practice, the amount judicial officials choose is often random -- especially in West Virginia, where judges do not have the benefit of a statutory guide that defines the appropriate bail for a given crime.
In Cabell County, for instance, a magistrate could have set Smith's bail at $500, $5,000 or $50,000.
Pretrial release programs call for a designated officer, like Sarver, to comb recent regional jail bookings and pick out inmates with low-level criminal charges who can't post their bail.
Once Sarver has her list, she takes it before a review board made up of at least one prosecutor, one public defender, a victim's advocate and other day report center officials who evaluate each defendant based on their criminal histories, along with the facts of the case, and set bond hearings dates for the ones who make the cut.
"We look at criminal histories, we look at the severity of the criminal charges and try to dispose of the case as quickly as possible, but still making sure that justice is done," Cabell County Prosecuting Attorney Chris Chiles said.
In other words, the group basically serves as a filter for new inmates. Sometimes, they find defendants that are being held on charges that wouldn't be punishable by jail sentences. Sometimes, they discover that the jail is holding inmates that are fugitives that should be shipped to other counties or states. Sometimes, they find people that shouldn't have been arrested in the first place.
"It works the other way, too," Chiles said. "Sometimes there are occasions when someone is charged with a misdemeanor and we go back and check their record and it turns out it should have been a felony."
The victim's advocate also plays an important role, Chiles said. If the victim does not agree with the release decision, then the defendant likely will not leave the jail.
Jail bills still rising
Before Cabell County implemented its bond review system in 2009, low-level criminal defendants who could not post bail might sit in jail for up to 21 days before seeing a magistrate.
Now, Sarver can put defendant before a judge in a week. At a daily billing rate of $50 per inmate, that's no small victory, she said.
"I can sit and tell you that if we weren't touching the misdemeanors downstairs and reducing that 21-day docket, I would estimate that the jail bill would be over $400,000 [a month]," she said.
On average, about 10 defendants a week are released through Cabell County's program -- saving about $8,500 a day, Sarver estimates. That works out to more than $400,000 a year.
The problem is that the jail bill is still on the rise.
Near the end of 2012, Cabell County's monthly jail bill stood at about $330,000, up about $100,000 from when the program started in December 2009.
Sarver said she kept track of savings statistics by multiplying the daily housing rate by the number of days an inmate would have been incarcerated if he were still in jail. At one point, Cabell County Day Report Center Director Chris Dean said he told her to stop because it didn't make sense to show county officials numbers that were moving in the wrong direction.
"What they see is what we had budgeted -- this is our line item, and now we're going to have to put more money back into that line item because it's not going down," Dean said.
The pilot counties are not faring much better.
Wayne County's yearly bill gained more than $200,000 in 2012.
Mercer County dipped from 2010 to 2011, but topped off at more than $1.57 million last year.
Greenbrier County's yearly bill finished at $579,354 last year, up nearly $20,000 from the previous year's mark.
Wood County's bill went from $1.6 million in 2010 to nearly $2.1 million in 2012.
Brooke County has seen the most promising change in jail spending. In 2010, they were at $327,386. Last year, they finished at $278,745.
Jim Lee, the coordinator of the Brooke County program, said he was disappointed to hear about the other counties' numbers, but speculated that the jail bills are still rising because the pilot programs are still mostly focused on screening misdemeanor defendants, and not nonviolent felons.
"If you don't do felons, half of your people are going to be left in jail," said Lee, who is also the chairman of the community corrections subcommittee that monitors and disperses the grant funding to the pilot programs. "I think you defeat the purpose if you just do misdemeanors."
Other factors may also be at play, like municipalities hiring more patrol officers who make more arrests, differing bonding and sentencing policies from judges and magistrates, or rate increases at the jail.
Greenbrier Circuit Judge Jim Rowe said his county neared a record number of felony indictments in 2012, adding strain to the jail bill that the pretrial release program couldn't make up.
Mercer County Judge Omar Aboulhosn said his jurisdiction has also seen a rise in violent crime, but said the pretrial release program's main thrust is to insure that a defendant has a fair bond.
"The jail bill is never my consideration when I'm trying to determine what to do with a person," Aboulhosn said. "To be quite frank, bonds are set for a reason. There are factors that go into deciding what the amount of bond should be. It's never, 'how much is the jail bill.'"
The good news for pretrial release, according to Lee, is that the program does not have a lot of overhead. The heaviest expenditure is the salary of the pretrial officer, which runs about $50,000 to $60,000.
"There is not a lot of cost," he said. "In larger counties, you may need a couple pretrial officers, but the savings generated to the counties would be tremendous."
'Doing their own thing'
In August, the state Supreme Court released a report that criticized the pilot programs for supplying incomplete data on jail savings and called for "more guidance on what to report and how to present information."
Wayne County, for example, did not provide the Supreme Court with any statistical information on the number of people its pretrial program had released, only anecdotes on other peripheral court programs that have little to do with the pilot.
Wood County's portion of the Supreme Court analysis noted that officials in that county screened a total of 21 defendants in three months. Not a single inmate was released during that time, a pretrial officer confirmed later.
There are other data issues, too. The pilot programs do not keep track of instances when released defendants fail to show up for their court dates -- a statistic that experts say is generally used as a benchmark in gauging a pretrial program's success.
"This would be the type of information that, having it, would allow us to better assess the efficiency of release," said April Harless, the court's information officer. "But we just don't have it."
The pilot counties actually are not required to report any data to the Supreme Court, Harless said. The only oversight the programs have comes from the state Division of Justice and Community Services, which simply monitors the county's expenditures and makes sure county officials are not misallocating the grant funds.
Harless said Supreme Court projects coordinator Jennifer Singletary is too overworked to monitor pretrial release data. Singletary declined multiple Gazette requests for an interview.
"Again, each of the five counties are pretty much doing their own thing," Harless said. "The community corrections subcommittee's grants have come the farthest in motivating the jurisdictions to take some kind of action."
Last month, backed by a study from the Justice Center of the Council of State Governments that found that about 43 percent of inmates in West Virginia's regional jail system are awaiting trial, Gov. Earl Ray Tomblin announced a reinvestment initiative that called for lawmakers to shift $25 million into probation and day report systems in hopes of saving nearly five times that amount in prison and jail spending.
Part of recommendations included broader use of pretrial risk assessment programs, according to the Justice Center report. The study, however, made no mention of the pilot programs already in existence.
Justice Center analyst Mark Pelka said that most of his group's recommendations to Tomblin focused on expanding risk assessment programs for post conviction felons so judges can make better decisions at sentencing.
"We don't have very much on pretrial in the justice reinvestment policy framework," Justice Center policy analyst Mark Pelka said.
Pelka said the Justice Center will be advising lawmakers about pretrial release in the upcoming legislative session. Most of the focus, however, will be on lightening the burden in the state prison system, he said.
By Zac Taylor
The Charleston Gazette: WVgazette.com