HUNTINGTON - Candidates for the West Virginia Legislature in next month's general election almost universally say tougher penalties are needed to discourage drug dealers from operating in the Mountain State rather than in neighboring states where sentences are already harsher.
A comparison of the drug laws in West Virginia, Kentucky and Ohio bear out their underlying rationale. While the range of penalties for drug dealing in the Mountain State is wider, the minimum sentence is shorter than in Kentucky and Ohio.
In several states, including Ohio, drug crimes involving Schedule I narcotics such as heroin are punished based on sentencings divided into classes by the amount of substance in the defendant's possession at the time of arrest.
In West Virginia and Kentucky, the differential between dealer and user is based on circumstance. No specific quantity of any drug is required to be charged with possession with intent; rather, cases are examined individually to determine if the defendant delivered the drug or had intent to deliver.
According to the National Conference of State Legislatures, more than a third of states have amended drug penalties in the past five years. However, the amendments have switched to show support for reducing penalties for low-level offenders and opening up treatment-based alternatives for defendants in an effort to preserve costly prison space.
West Virginia is not listed among those who have reduced penalties, but it has set up mechanisms such as drug courts that offer alternative programs for users of drugs to receive treatment while undergoing strict supervision. In meetings with The Herald-Dispatch editorial board and in questionnaires filled out by the candidates, almost all of them advocate for offering treatment alternatives for low-level offenders to help combat the opioid crisis that has besieged the state.
Almost all of them also call for tougher sentences for drug dealers.
Cabell County Prosecutor Sean "Corky" Hammers said to alleviate drug problems, it is important to separate the dealers from local users.
"Every addict has sold drugs in their life. That's a no-brainer. We deal with local addicts way different than we deal with out-of-town dealers," he said. "If we don't get the local addicts off drugs, clean and back working, we are always going to have dealers feeding their addiction."
West Virginia charges possession of drugs as a misdemeanor with a 90-day to six-month penalty. Possession of a controlled substance with intent to deliver, delivery and transporting a controlled substance into West Virginia carries a prison sentence of one to 15 years.
The one- to 15-year penalty is an indeterminate sentence, which means there is no defined period of time set during sentencing. The length of imprisonment, between one and 15 years, is based on inmate conduct. An inmate who stays out of trouble could be eligible for parole after one year.
In 2015, the Supreme Court of Appeals of West Virginia denied overruling the conviction of Kristopher Dale Nutter, who claimed he was overcharged with felonies after he was convicted of delivering marijuana.
Nutter argued, like in Ohio, the West Virginia constitution requires criminal penalties to be proportional to the character and degree of the offense. The Supreme Court said determining proper punishment and characterizations for the crimes was the state legislature's duty.
Legislation introduced in this year's West Virginia legislative session - House Bill 4240 - called for mandatory minimum sentences for certain drug violations by repeat offenders, including a 10-year minimum for possession of a Schedule I narcotic with a street value of greater than $1,000. Trafficking a narcotic would have called for a 15-year mandatory sentence. But that legislation did not pass.
Hammers believes stiffer penalties are a must for anyone dealing, no matter what quantity they have in their possession.
"There's different ways you can go about it," he said. "You can make the penalty higher for the more drugs you have on your person or you can make that indeterminate sentence a determinate sentence and let the judge pick. Let the state argue (for the maximum)."
Hammers said he doesn't know if 15 years is enough for the biggest dealers.
Comparatively, the maximum sentence for a felony drug offense in Ohio, including possession or trafficking, is three to 10 years in prison. If the possession is of less than a gram, the sentence is six months to one year.
In Kentucky, possession of a narcotic is a felony and calls for a one- to five-year prison sentence. For trafficking in Kentucky, a five- to 10-year sentence is imposed. Both charges are doubled on second offense.
The NCSL reports West Virginia, Ohio and Kentucky have each taken part in the justice reinvestment sentencing and correction reforms, joining 24 other states in the time period from 2007-15. The reinvestment is meant to address treatment needs of defendants who exhibit mental health and substance abuse disorders.
A study by the Urban Institute recently projected savings of $4.6 billion countrywide over the next five to 11 years by giving defendants treatment rather than incarceration.
Hammers said weighing the two against each other would probably even out in the end.
"I want to put the drug dealers in for a long time. I don't want to put the addicts in," he said. "We are keeping the dealers for longer, so it's going to cost you more, but we are keeping the addicts out. So it probably is a wash."
Even if it is a wash, Hammers believes recovery is what is best for users.
A lot of West Virginia resources to help those addicted to drugs are only available post-conviction.
Allison Adler, director of communications for the West Virginia Department of Health and Human Resources, said for non-inmates in 55 counties throughout the state, there are 130 crisis detoxification beds in residential treatment facilities.
An additional 118 beds are available for short-term, postpartum, youth and long-term treatment. About 700 additional beds are available for support at peer and provider recovery homes and facilities.
In addition, Southwestern Regional Jail in Logan County recently opened the first Division of Corrections residential substance abuse treatment unit with a 28-bed facility.
Some post-conviction resources include drug courts, although the availability of the program is on a county-by-county basis. The court puts offenders through vigorous rehabilitation treatment and counseling instead of incarceration. The availability of the drug courts depends on funding and volunteer work by leaders in the criminal justice system.
West Virginia does offer pre-trial diversions for low-level or first-time offenders where courts can supervise offenders for an amount of time to address factors that contributed to the criminal behavior.
Kentucky and Ohio offer similar programs, but offer more for rehabilitation and addressing mental health.
The Kentucky Department of Public Advocacy's Alternative Sentencing Social Worker Program assigns offenders represented by a public defender social worker services to assess mental health and substance abuse needs. When approved, the social worker has the client placed in treatment and other programs to address specific needs.
Ohio offers an Intervention in Lieu of Conviction program to give similar offenders court-supervised treatment instead of a conviction and jail time.
Hammers said a note of importance was West Virginia's lack of beds and regulated rehab centers.
"We have waiting (lists). We see people waiting too long for long-term rehab," he said. "That's another big problem. We need to (get more) long-term rehab and we also need to look at regulating the rehabilitation programs because they are without regulations, it appears right now."
In West Virginia, prosecutors and defense attorneys sometimes work together to find defendants rehabilitation programs to enter, but judges often strike the option down if the program has a bad history.
"We certainly don't want to put an addict out there someplace and set them up to fail," Hammers said. "In a sense, we are trying to give them a break on criminal charges, and setting them up to fail is not something we can do."
Any person looking for help with substance abuse and addiction can contact the state hotline 24 hours a day at 844-435-7498 or visit www.help4wv.com.
Follow reporter Courtney Hessler at Facebook.com/CHesslerHD and via Twitter