Faced with a substance abuse crisis that continues to ravage the state, West Virginia lawmakers are again eyeing increased penalties for possessing even small quantities of drugs like cocaine, heroin, fentanyl and meth.
SB 154 would upgrade simple possession of hard drugs — presently a misdemeanor — to a felony, punishable with one-to-five years in prison. It’s part of an across-the-board overhaul of the state’s narcotics statutes, which also includes increasing the mandatory minimum for dealing drugs from one year to three years in prison.
It mirrors a similar bill that passed the Senate last year but died in the House of Delegates.
The measure is just one of many “tough on crime” bills that lawmakers have introduced this year; others include making second-offense fleeing on foot a felony, creating a new felony for reckless driving resulting in death and increasing the prison sentences for child abuse and neglect.
But in a state where people continue to struggle with substance abuse at one of the highest rates in the nation, simple possession was the most common charge for a drug-related arrest, according to data from the West Virginia Division of Corrections and Rehabilitation.
Supporters of the bill say increasing the penalties for drug possession is the best way to make sure people will get the help they need.
Under current law, when people are charged with a misdemeanor for possessing small quantities of a drug like heroin, they go before a magistrate court, where they face 90 days to six months in jail. But West Virginia’s magistrate court system doesn’t have a drug court program — which has the court monitored treatment for a person with substance use disorder.
Bill sponsor Sen. Vince Deeds, R-Greenbrier, said it will be less expensive to move those cases to the circuit courts, where 46 of the state’s 55 counties already have a drug court set up. If the bill becomes law, after a person completes drug court, the conviction would be reduced to a misdemeanor.
“We’re trying to be proactive here. Right now, if you have someone go in for simple possession, they’re back out and they’re committing more crimes to feed their habits,” Deeds said. “The idea here is to have early intervention with these end-level users.”
But to JoAnna Vance, a criminal justice advocate and person in recovery, that sounds nice on paper but is impossible to implement. Not only are there nine counties without drug courts, but for many suffering from substance abuse, there aren’t enough resources to comply with the terms of the program.
“For urban areas, it might be easier to do. But in rural areas, the court isn’t providing transportation,” she said. “A lot of people just flat out refuse to do it and would rather spend time in jail.”
West Virginia isn’t the first state to try this approach. Right now, 24 states classify simple possession of a hard drug as a felony — including neighboring Kentucky and Ohio. All these states mirror West Virginia’s proposed law; the felony charge doesn’t include marijuana and there’s an option for some type of drug court.
But lawyer Patrick Higgins of the Ohio ACLU said while that option is there, the application is “scattershot” at best. He said in his state, charging people with a felony for simple possession hasn’t done much to abate the problem.
“We’ve seen it here in Ohio and it’s resoundingly clear: increased penalties don’t do anything to help it,” he said. “This is a public health problem.”
And the statistics back up that claim. West Virginia, treating drug possession as a misdemeanor, had the highest overdose mortality rate in the nation in 2021 — the most CDC recent data available. But among the nine states with the next-highest rates, six were already charging people with felonies for drug possession.
While West Virginia contemplates increasing these penalties, multiple states have gone in the other direction over the last decade. In 2014, a referendum in California made simple possession a misdemeanor and two years later, voters in Oklahoma did the same thing. In Connecticut and Utah, the state legislatures passed laws reducing the charge to a misdemeanor.
While state legislatures have passed harsher laws dealing with fentanyl in recent years (as West Virginia did last year) Wanda Bertram with the Prison Policy Initiative said SB 154’s inclusion of all hard drugs “is the most comprehensive I’ve seen.”
But desperate times call for desperate measures, according to Senate minority leader Mike Woelfel. The Cabell County Democrat said a few years ago, he would’ve never been in favor of a bill like this, but years of seeing opioid use ruin lives and families in his district has “hardened me.”
“Sometimes you need more than just a carrot to address a problem,” he said.
SB 154 is now pending before the House Judiciary Committee.