A West Virginia Prosecutor Makes Bias Their Official Policy

Written By: Kyle Vass, ACLU WV

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In August, Kanawha County Persecuting Attorney Debra Rusnak, rolled out a plan she claimed would “stand up for victims of violent crimes,” but would, in reality, completely overhaul the way the criminal justice system handles people accused of certain crimes in Kanawha County – asking for the maximum amount of bond money, refusing to accept referrals to treatment programs, and outright disallowing plea bargains for misdemeanors.

While the scope of Rusnak’s stated “policy” is limited to people accused of violent gun crimes, sexual offenses, or crimes against children, it is important to remember that no one targeted by this policy is someone who has been found guilty of any crimes. These are changes made to how accusations – not convictions – are handled. With as little as a press conference, Rusnak has overhauled the way anyone accused of any of these crimes will be handled by the criminal justice system in Kanawha County – a move that disproportionately targets Black and lower-income people.  

Prosecutors are the most powerful actors in a criminal case. They have the power to charge. The power to dismiss. Considering more than 95 percent of criminal cases result in a plea bargain, they often are the sole person deciding the fates of people accused of a crime.

As put by the ACLU’s Campaign for Smart Justice, “prosecutors unilaterally decide who gets a second chance and who goes to prison and for how long.” Yet the average person is unfamiliar with their county prosecutor and often don’t realize that they are elected officials, meaning prosecutors wield their vast power with little oversight. 

The process for how prosecutors like Rusnak arrive at these life-altering decisions about people’s criminal cases happens behind closed doors, not in the public arena. So, when a prosecutor tells us how they will approach hundreds of cases, we must pay attention.

Rusnak should know that bond is not supposed to be a punishment. Instead, pretrial bond serves two state interests: ensuring a person’s appearance at all court hearings and the safety of the community. The U.S. Supreme Court has made clear, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Thus, under state law, an arrested person is entitled to the “least restrictive condition or combination of conditions that the judicial officer determines reasonably necessary” to meet the state’s interests.

In other words, the law requires a thoughtful, individualized assessment of an accused person’s bond factors – not a blanket rule based on the type of accusation.

Most people have their bonds determined at a “first appearance” in front of a magistrate. Unlike the spirited bond hearings depicted on Law and Order, a first appearance in West Virginia almost never includes a prosecutor – or even a defense attorney. Instead, the person accused is brought before a magistrate who, most often, is not a lawyer (as only a handful of West Virginia’s 160 magistrates have a law degree).

According to West Virginia State Code, a magistrate must consider several factors: whether a person can afford a money bond, family obligations, employment, other responsibilities that indicate they are likely to remain in the community during their case, past criminal charges or convictions; etc.

The accused person – standing alone without an attorney and unaware of these legal factors – often says nothing at all. This leaves magistrates with little relevant information to apply to one of the most important decisions in a criminal case. As one magistrate told a Mountain State Spotlight reporter: “[W]hen we set a bond, we’re meeting a person for the first time coming off the street. You have to make a game time call, to the best of your ability.” 

Therefore, when a court holds a bond reduction hearing, it is often the first time for a prosecutor and a defense attorney to present the information necessary for an individualized bond decision. Under this new scheme, Rusnak’s office would abandon their role in this process. Instead, they would advocate for a general rule against release, no matter the person – i.e., the opposite of the constitutional and legal standards.

Within days of Rusnak’s announcement, the Brennan Center for Justice debunked myths about bond policy with a report finding “no statistically significant difference in crime rates between cities that reformed their bail policies and those that did not.” The report urged, “Leaders who are serious about improving public safety will need to look beyond bail policy to reduce crime and violence.”

Rusnak’s scheme goes further for people with substance use disorders. As the prosecutor for the largest county in the state most severely impacted by the opioid crisis, Rusnak’s attempt to undermine treatment options as a condition of bond (and, instead, send people to America’s deadliest jail system) is beyond disturbing. It will lead to a needless increase of suffering and death for West Virginians.  

The only people who stand to profit from this move are the owners of companies in the for-profit bond system. It certainly isn’t the people of Kanawha County who will all pay the financial burden of her new policy. Over the last five years, Kanawha County paid the state $17.4 million to incarcerate people charged in criminal cases according to a report by the West Virginia Center on Budget & Policy. 

Under Rusnak’s new scheme, county residents can expect to pay more. But those jailed will pay the highest price – along with their loved ones and the communities that feel their absence. People in jail are at greater risk of losing employment, earning less money in future jobs, becoming homeless, divorcing a partner, and having their right to parent taken away. 

Nearly a century ago, the Supreme Court of the United States wrote that the prosecutor’s interest “is not that it shall win a case, but that justice shall be done.”  A policy that shifts suffering and unprecedented financial costs so that politicians and bond companies can grow their profits is a miscarriage of justice. 

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