As COVID-19 spreads, most Virginia jails remain overcrowded

Most jails in Virginia remain overcrowded despite efforts to reduce the number of people held in local lockups as COVID-19 spreads, according to state records.

And while Gov. Ralph Northam’s administration has touted a 17 percent drop in the jail population since March 1 — a significant decrease in a patchwork system that had been holding 28,000 people — a facility-by-facility review reveals uneven efforts to free-up space.

One county, Fauquier, cut its local jail population in half by transferring inmates to a less crowded regional facility, making it one of just 12 facilities to transition from over-capacity to under capacity since March 1.

Other jails saw their populations barely budge, including Hampton Roads Regional Jail, which is holding 106 more inmates than it was designed for and where 41 inmates had tested positive for COVID-19 at last count.

Advocates say the numbers show why Northam should intervene directly by invoking his pardon power to reduce the number of inmates held in the facilities rather than issue guidance and hope local officials follow it.

“The governor was eager to take credit for the reduction in jail populations as resulting from his guidance,” said Kim Rolla, an attorney with the Charlottesville-based Legal Aid Justice Center. “But these numbers don’t support that. The 17 percent statewide average reduction in jail population is obscuring wide variations based on the positions and policies of local criminal legal system actors.”

‘This early and aggressive effort is clearly working’

Defense lawyers, family members of inmates and some lawmakers and prosecutors have made loud and repeated calls for the state to take dramatic steps to reduce the number of people incarcerated in jails and prisons, where social distancing is impossible, diseases spread fast and a disproportionate share of inmates face preexisting health conditions.

Unlike prisons, which are the sole domain of the state, the population of local jails is influenced by a range of decision makers, from police officers deciding to arrest someone rather than issue a summons to a judge deciding whether to grant bail or modify a sentence.

Northam, who has called decreasing jail populations a humane and responsible step, issued guidelines to those local officials on March 19. He called for judges and prosecutors to seek sentence modifications and consider house arrests. He also asked police to divert inmates from the facilities by issuing summonses rather than making arrests when possible.

Earlier this month, his administration said in a statement that the suggestions have led to a dramatic decrease in the jail population.

“Governor Northam called on local officials to work together to safely reduce our jail population, and this early and aggressive effort is clearly working,” Northam’s secretary of public safety, Brian Moran, said in a statement. “Localities are taking these recommendations seriously, and I expect them to continue making decisions with the public safety of their communities in mind.”

‘It could be out of control before we could contain it’

But law enforcement officials in different jurisdictions have sometimes taken strikingly different views of the risk posed by the pandemic.

In Chesterfield County not long after Northam issued his guidance to local officials, Sheriff Karl Leonard described jail as “probably the safest environment to be in right now” in an interview with the Richmond Times-Dispatch: “It’s controlled, we have limited access, and we have 24-hour medical staff in place. You can’t guarantee that in the community. I think it’s doing a disservice to let them out of jail right now.”

A few days later in Winchester, public safety officials announced 60 inmates would be released to prevent an outbreak. The sheriff’s department told a local judge the risk was clear, according to The Winchester Star: “We’re trying to minimize any danger. It takes seven to 14 days before there are any [virus] symptoms. It could be out of control before we could contain it.”

Daily inmate counts at the state’s 67 local and regional jails reflect those varied stances. While all the facilities saw their populations drop between March 1 and April 14, the size of the decrease ranged from 2 percent at Hampton Roads Regional Jail to 50 percent at the Fauquier County Jail, where officials said they transferred inmates to the regional jail in Winchester, which is also under capacity. The point-in-time counts were provided by the state’s Compensation Board, which provides support for constitutional officers, including sheriffs.

Overcrowding continues

Nearly two-thirds of the facilities continue to hold more inmates than they were designed for, according to ratings set by the Board of Corrections, which reflect the square footage and bathroom facilities available in a given facility.

Jails around the state have wrestled with the issue for years and it’s not uncommon for them to regularly operate beyond capacity by double and triple bunking cells — conditions that jailers say are often workable, but are less than ideal during a pandemic spread through close contact with others.

That includes some of the jails that have seen the biggest population decreases in response to the pandemic, like Bristol City Jail, which went from 173 inmates on March 1 to 100 this month but was only designed to hold 67 people.

Bristol City Sheriff David Maples credited the local legal community with rushing to free up space by reconsidering bond, releasing people nearing the end of their sentences on house arrest and other means. He said the free space has allowed him to quarantine new arrivals in certain cell blocks.

Does he wish he could get his population count down to the jail’s rated capacity, set when it was built in 1970? “In an ideal world, that would be something we would certainly like to achieve,” he said. “But I just don’t see that happening.”

But he said he didn’t think he, the courts, or prosecutors had much of an appetite to release many more inmates, either because they were deemed to much of a risk or they were not nearing the end of their sentences.

Overcrowded or not, John Jones, the executive director of the Virginia Sheriff’s Association, said that so far outbreaks have occurred in just a few facilities and his members have things under control.

“I talk to a lot of sheriffs about what they’re doing and my comfort level at the moment is about as high as it can be,” Jones said. “The jail situation appears to be no less safe than the outside communities—you’ve got a couple hot spots.”

Supreme Court tells judges to consider pandemic

Advocates argue that it will be too late if the state waits for things to get worse to step up its response. They’ve leaned on Northam and his administration to use his pardon power to release low-risk inmates and people nearing the end of their sentences — a step he has resisted, arguing he doesn’t believe such a step would withstand legal scrutiny.

But Northam’s administration has pushed the judicial system to consider the risk posed by jails and prisons during the pandemic as they make bond and sentencing decisions.

The Supreme Court of Virginia appeared to heed that request last week when it issued an order extending an ongoing judicial emergency that has halted most routine court hearings. For the first time, they directed judges to consider the potential health risks of COVID-19 when sentencing defendants or modifying their sentences.

Rolla, with the Legal Aid Justice Center, called it an “important acknowledgement of the critical need to reduce the populations of Virginia’s jails and prisons.” But she said it wouldn’t mean much without buy-in from prosecutors.

Likewise, defense lawyers said they cited the new language when arguing for pretrial release but some judges continue to question whether the pandemic poses a risk to people in jail.

“Nothing has really changed since the latest court order,” said Tracy Paner, who leads the Richmond Public Defender office.

This story has been updated to include details about how Fauquier County lowered its jail population, which were provided after press-time.