As a deadly and highly contagious virus was spreading across the globe, our staff began strategizing for the inevitable arrival of COVID-19 in the U.S. and in West Virginia.
Well before Gov. Jim Justice declared a state of emergency on March 16, ACLU-WV was monitoring and reacting to the many issues surrounding the outbreak.
Our staff has been working from our homes to coordinate with our national organization, our partners, community activists, cooperating attorneys, elected officials, news media and others to ensure that the government’s response 1) is grounded in sound science, not politics or discrimination, and 2) respects core constitutional principles.
As many workplaces ground to a halt, ours went to work harder than ever. We have strongly advocated for our government’s response to be data-driven and transparent, and to place the needs of marginalized and vulnerable people first.
Below are just some of our areas of focus during this unprecedented time.
The use of emergency powers during a pandemic can be legitimate for measures grounded in public health. But history also teaches that our government is most prone to committing abuses in times of crisis. We have worked to ensure that broad emergency powers are never misused beyond legitimate needs.
When the governor issued a confusing and vague order barring travel to West Virginia, we responded. We called the order what it was – absurd. We also informed the governor in a letter that the order lacked due process provisions, among numerous other constitutional and legal concerns. He later admitted his order was “probably unconstitutional.”
The Legislature has also expressed concern about the use of emergency powers. A working group of the Joint Judiciary Committee has asked the ACLU to provide input on the emergency powers statute. We are also offering recommendations to protect the balance of powers and safeguard against executive overreach.
People locked up in jails and prisons were already among the most marginalized in our society, but the pandemic has greatly exacerbated their vulnerability. Because it is impossible to adhere to social distancing protocols in these overcrowded – and often unsanitary – facilities, those who are incarcerated or work in our prisons and jails have been sitting ducks for infection.
Many detainees are being held pretrial, meaning they haven’t been convicted of a crime. In most cases, they are being held simply because they cannot afford bail. Wealthy people accused of the same offenses are able to socially isolate themselves in their homes as they await trial.
Across the country, we watched as simple misdemeanor offenses turned into death sentences for people the government refused to release until it was too late.
Along with our partner organizations, we immediately began advocating for the release of as many people as possible from state custody. We also filed two separate legal actions: a successful motion to unseal the state’s COVID-19 response plan and another to release 39 at-risk individuals.
Our advocacy has been met with a mixed response from officials; at first, the incarcerated population was reduced (in some instances by as much as 30 percent) but those populations quickly began to increase again, despite the fact that COVID-19 was beginning to appear in our incarceration facilities. Our coalition’s calls for universal testing in all facilities was finally agreed to.
As of this writing, there have been 119 confirmed cases in West Virginia’s jails and prisons among incarcerated people and another eight among employees. We applaud the move toward universal testing but we expect this situation will only continue to worsen if bold action isn’t taken.
Our advocacy on this issue will continue through and beyond the COVID-19 crisis. If anything, the pandemic has offered us all the opportunity to examine our system of mass incarceration as one that is ironically based in an obsession with public safety but is costing us our safety.
Children and Students
Technology provides us an opportunity to help students overcome the closure of their schools, but remote learning is not a sufficient remedy unless all students have access to the tools they need to participate fully and equally. The unsafe and inequitable manner in which West Virginia is providing remote learning to public school students isn’t just unacceptable; it’s also unlawful.
We published an open letter to the governor and other state officials demanding that inequities be addressed.
Students from low-income families, students of color, students with disabilities, and students who lack permanent housing will all struggle to receive the same education as their more privileged peers, now more than ever.
Furthermore, students must not be required to surrender their privacy or consent to being spied upon as a condition of receiving a remote education during the COVID-19 crisis. Specifically, ACLU-WV is calling on the governor to 1) ensure that all students have equal access to the various technologies that make remote learning possible and 2) ensure that adequate and uniform privacy protections are in place to protect students when they are engaged in remote learning.
Jail is never a place for a child, and during a pandemic, it’s even worse. In fact, it can be deadly.
ACLU-WV is proud to join a coalition led by the national Juvenile Justice Network to call for the mass release of as many juvenile detainees as possible. We also joined the #FreeOurYouth campaign to bring awareness on social media to the dangers of juvenile incarceration during a deadly pandemic.
Immigrants and People of Color
As the pandemic raged on, it became clear that Black people and people of color were being disproportionately harmed by COVID-19.
ACLU-WV has offered support to Black- and POC-led organizations in calling for the collection of racial demographic data of those infected.
Medical providers should not be inquiring about immigration status when administering testing or treatment for COVID-19. Public health depends on people getting tested and taking the proper steps if infected. If people fear detention or deportation could result from seeking medical care, then they are much less likely to seek testing and treatment.
In addition, all elderly and immunocompromised individuals in ICE custody should be released on personal recognizance immediately so that they can shelter in place, as health experts recommend. There is no reason to keep vulnerable people in unsanitary and crowded detention centers during this crisis.
Likewise, we must resist and call out any efforts to scapegoat certain groups of people for this illness. There have been multiple reported instances of Asian Americans and Asian people living in other countries experiencing racism and even violence. This is unaceptable.
Voters and Our Democracy
We advocated forcefully for the governor and secretary of state to allow every eligible West Virginian to vote absentee by mail, and our requests were approved.
With our partners, we also helped organize the nonpartisan Vote Together WV coalition, which is dedicated to voter turnout, education, and engagement. Our volunteers have placed tens of thousands of calls and text messages to registered voters in the state, helping them to navigate the changes to the primary election and the voting process in light of the pandemic.
This coalition of organizations and individuals includes the ACLU-WV, Our Future WV, WV FREE, WV Citizen Action Education Fund, and others.
If past pandemics are any indicator, there could likely be a surge of new infections in the fall, and so we continue to advocate for no-excuse absentee voting process for the November general election.
We also organized a virtual Town Hall meeting to discuss civil liberties issues with our supporters across the state, so that they could remain informed of our work from the safety of their homes.
We cannot allow our democracy to suffer more than it already has, and we will continue to advocate in the safest manner possible to defend it.
We support people who cannot afford to miss work or who lack paid sick leave, and we have advocated forcefully for elderly and other at-risk workers to be allowed to continue receiving unemployment if they are uncomfortable returning to work.
Likewise, we have continued to call on the governor to use his emergency and regular powers to indefinitely extend a moratorium on evictions during and after the crisis.
Unfortunately, both of these calls have so far been ignored. We are now running radio and Internet ads calling on West Virginians to contact the West Virginia Supreme Court of Appeals to demand that it protect people from losing their homes.
People Experiencing Homelessness
On April 14, two individuals who lived in a tent encampment in the city of Wheeling returned to their home to find city crews destroying it with a bulldozer.
A few days before, city officials had told them they could stay there if they cleaned up the premises, an order with which they complied. The city crews came anyway. City officials then announced they planned to destroy more struggling people’s homes.
It was a devastating moment for the encampment residents. In addition to $100 in groceries and government-issued identification papers, they also lost irreplaceable belongings like an engagement ring and photos of children. Other nearby residents feared for their own safety and security.
City officials claimed they were responding to reports of crime, but they filed no charges against any resident of the encampment, nor did they bring a warrant with them. The destruction was also in direct contradiction of guidance from health officials.
The U.S. Centers for Disease Control and Prevention specifically advises against destroying homeless encampments during a pandemic. Doing so forces residents to scatter into the community rather than sheltering in place as health officials advise. This increases the likelihood of community spread.
We demanded that the city cease its plans to destroy more homes, and to find alternative housing for those it displaced. We have also been working closely with members of the homeless community in Wheeling on potential litigation related to the destruction.
Access to Abortion Care
We deserve state leaders who make our safety during the pandemic their no. 1 priority. Instead, we have officials like Attorney General Patrick Morrisey who exploited the emergency and used it as a guise to halt access to essential, life-saving abortion care.
Along with attorneys at ACLU National, we sued Morrisey and the state of West Virginia on behalf of West Virginia’s only abortion clinic, Women’s Health Center of West Virginia.
Fortunately, not long after Morrisey’s announcement, Gov. Justice rescinded his emergency order relating to health care facilities and we were able to file for the dismissal of our case.
WHC is again offering its full patient services, including abortion care without delay. Officials should make no mistake: we will rise to defend access to reproductive health care every time they to try attack it.