The number of inmates in West Virginia’s overcrowded criminal justice system has declined over the last few weeks, as prosecutors throughout the state identify low-risk inmates eligible for parole.

But several groups are still calling on the state to do more, to further reduce its incarcerated population and ensure that staff and inmates have the appropriate space and supplies to protect themselves against COVID-19.

The ACLU-West Virginia on Thursday asked the West Virginia Supreme Court of Appeals to order the release of 39 medically vulnerable and low-risk inmates. In a press release, the organization says that many of the inmates in this request would’ve been released early anyway, once legislation like a bill for bail reform takes effect this summer.

“It seems impossible that the facilities can conform to these sort of CDC-endorsed guidelines for correctional facilities, which include social distancing, when they have more people in the facilities than they do beds,” said Loree Stark, the group’s legal director.

At last count, West Virginia health officials were reporting 523 positive COVID-19 cases and five deaths. The state has reported no positive cases in any of its lockups.

Four of the state’s 10 regional jails were running over capacity on Tuesday, said Lawrence Messina, spokesman for the state’s Department of Military Affairs and Public Safety, which handles the Division of Corrections and Rehabilitation. (One of the jails was five people over capacity.)

On Monday, Messina reported there were more than 4,300 people in the state’s regional jails, nearly 800 fewer than the department reported on March 2 — but still about 100 more people than the jails have beds for.

As of Tuesday, nearly 2,000 correctional officers and 1,250 nonuniform employees were staffing all of the state’s correctional facilities.

Elaine Harris, a vice president with the West Virginia AFL-CIO, which represents corrections officers and nonuniform support staff, said the union is working closely with the DCR to ensure staff have access to protective wear.

“Those are demanding jobs,” Harris added. “If you're a young person trying to raise a family, and you have kids — we've asked them [the DCR] to try to be flexible with workers.”

The DCR has stated in legal documents that the division has had a COVID-19 response plan in place since March 20. But Messina said the division won’t share the full plan with the public, citing “security and public safety reasons.”

In a summary posted to the state’s website with COVID-19 information, the DCR reported that it's implementing a policy that “emphasizes frequent cleaning and disinfection of high-touch areas,” details practices for sick employees and isolation options for inmates, and outlines procedures for personal protective equipment and sanitation supplies, like face masks and hand sanitizer.

The DCR added that it’s regularly checking temperatures of staff and inmates and waiving medical co-pays for inmates.

When asked how overcrowding concerns might limit the DCR’s ability to enforce recommendations from the federal government for social distancing, Messina said the DCR has addressed the matter through its confidential, in-house COVID-19 response policy.

Advocates have called for that plan to be released to the public immediately.

“We don't have nearly the amount of information that's really needed,” Stark said, “to ensure that the plans they have in place are going to protect those incarcerated and the employees in these facilities.”

A Fight For Information

The DCR rejected a Freedom of Information Act request from the ACLU for its COVID-19 response policy, citing a section of state code exempting the division from disclosing information related “to the safe and secure management of inmates or residents” that could be used to aid an escape or effort to cause harm.

West Virginia Public Broadcasting is waiting on a response to its own FOIA request filed Wednesday.

On March 25, a group of inmates asked a judge to take immediate action to address some of their concerns about the DCR’s COVID-19 response. U.S. District Judge Robert Chambers received the division's policy under seal and wrote on Wednesday that the DCR has “been anything but unresponsive to the threat posed by COVID-19.”

“In fact,” Chambers wrote, “Defendants [the DCR] have produced what appears to be a comprehensive plan addressing the spread of COVID-19 in state jails and prisons. The plan addresses procedures to limit the entrance of COVID-19 into the corrections system, as well as methods to limit interfacility transmission and to transport infected individuals to hospitals for medical care.”

The March 25 motion also asked the judge to force the DCR to develop and disclose a plan for COVID-19, and to release a sufficient number of inmates to allow for social distancing in the correctional facilities.

The judge ultimately sided with the DCR when the division reported it already had a response policy in place.

Those same inmates’ complaints against the DCR date to 2018, when they, with attorneys from the firm Mountain State Justice, filed a class action lawsuit against the DCR for poor and inappropriate access to medical care at their time of incarceration.

One of the inmates named in the most recent motion, Donna Wells-Wright, says she had been at the North Central Regional Jail in Doddridge County on a state misdemeanor charge before she was released on bond April 1.

She suffers from emphysema and chronic obstructive pulmonary disease. She said she was released because of her conditions, which put her at a higher risk when it comes to COVID-19.

She described living in fear for weeks before her release.

“I mean, we’re scared to death, watching the TV, we don’t really know what’s going on,” she said in a phone interview on Wednesday. “And when I got home, and could actually watch the news, I was like, Oh my God, you know, we could’ve died in there.”

Wells-Wright was released weeks after the DCR said it began implementing its COVID-19 response policy. She said she remembers some improvements, but she said that jail was generally not a hygienic environment.

In the weeks before COVID-19, Wells-Wright recalled limited access to clean laundry. She said she had to share a mop bucket and broom with dozens of other women. By her account, it would take days for staff to spray the showers with bleach and water, and there wasn’t immediate access to enough feminine hygiene supplies. Inmates would use dirty dishes, likely meaning trays and silverware hadn’t properly been sanitized.

And if she or another inmate wanted to buy a bottle of hand soap from commissary, Wells-Wright said it cost $10.

In an email, Messina, the spokesman, said the DCR is providing inmates necessary sanitation supplies for no charge.

“Inmates are routinely provided personal hygiene and cleaning supplies,” Messina wrote. “It is the inmates’ responsibility to keep themselves, their cells and the common areas clean.”

Messina also referred West Virginia Public Broadcasting to a section in a recent memo from Judge Chambers that notes inmates in the class action lawsuit admitted their facilities were doing a “good” and “decent” job with sanitation, during the coronavirus.

Attorney Jennifer Wagner from Mountain State Justice said inmates and their loved ones have reached out to her, still saying there’s a lack of necessary supplies and space. She said her firm will continue to monitor the situation and go back to Judge Chambers if concern grows about the corrections COVID-19 policy.

“All of the basic sort of requirements that we are being asked to utilize in our day to day life — staying away from people, washing our hands multiple times, not just sneezing out into the air, using a tissue, not eating around other people — all of those things are not being implemented in the prisons and jails,” Wagner said.

The Call For Release

In late March, a coalition supporting criminal justice reform called on Gov. Justice to issue an executive order for agencies involved in the state’s criminal justice system. Specifically, advocates want DCR to release inmates during the COVID-19 pandemic, local law enforcement officers to avoid in-person arrests when possible, and agencies to develop transitional living options for those released.

“There is certainly some progress being made particularly around the release of pretrial people who are being incarcerated, pretrial, who cannot afford to make bail,” said Lida Shepherd, a member of the coalition who works with the American Friends Service Committee’s West Virginia Economic Justice Project.

On March 27, shortly after the coalition’s request, the West Virginia Director of Court Services issued a memo instructing county prosecutors to begin reviewing “the most recent list of pretrial detainees, to identify any pre-trial individuals who do not constitute a public safety risk,” for release.

It’s unclear how many pretrial detainees will be or have been identified, since implementation of the order is up to individual county prosecutors.

A little more than half of the state’s jail population, as Messina reported on Monday, are incarcerated and awaiting trial.

But, Shepherd noted, four out of the state’s 10 regional jails remain overcrowded.

“There are people who are either approaching their parole eligibility date, and are within a year of parole eligibility, or who have particular health concerns that put them in a particular risk, if they were to contract COVID-19 and to expedite their release,” she said.

Shepherd said the coalition isn’t asking officials to release dangerous inmates.

“I don't think anybody is saying we need to clear out all of our prisons and jails,” she said, “but I think that any measures that are taken to reduce [the inmate population], even minimally, could go really far to minimizing the risk.”

Several states also are releasing hundreds of inmates their corrections officials have identified.

So Where Do People Go?

Pastor Beverly Sharp, the director of re-entry initiatives for the West Virginia Council of Churches, said a global pandemic makes the already complex issue of re-entry even thornier.

“All those safety net organizations that are typically available to them when they come out, are not available right now,” Sharp said. “They either are shuttered completely or they're operating on telephones. And as you can imagine, when you come out of incarceration, if you don't have somebody there waiting on you, you don't have access to a telephone.”

She works with a staff of two employees, covering re-entry needs all over the state and also is in charge of 10 re-entry volunteer councils covering West Virginia.

“I probably get one or two requests a day, from all different parts of the state for different things,” for things like housing and transportation, she said.

She has noticed that more shelters and other housing initiatives are closing their doors to new arrivals. And because most resources for unemployment benefits are currently only available online and over the phone, Sharp is concerned that those newly released won’t have immediate access to those services.

“When we all shut down our public libraries, and we shut down access to our public computers, people that need those, to be able to apply for benefits and assistance, have no access anywhere,” Sharp said.

Sharp suggested the state allocate funding for transitional housing.

“Even funding to place people in a hotel or, you know, some temporary place would be sufficient,” Sharp said.

Emily Allen is a Report for America corps member.