On Tuesday, the Senate passed Senate Bill 547, a radical reimagining of the Controlled Substances Act that doubles down on decades of failed drug policies.
West Virginia has been called ground zero of the drug overdose crisis. For the last decade, West Virginia has had the highest fatal overdose rate in the country–more than twice the national average. While experts urge public health solutions to this public health crisis, the Senate took steps to do the opposite and instead increase criminal penalties for those with substance use disorder.
The bill overhauls drug offenses and sentences in three main ways:
Currently, simple possession of a controlled substance is a misdemeanor offense, with a maximum penalty of six months in jail. SB 547 would elevate simple possession of certain drugs (e.g., heroin, opioids, cocaine, methamphetamine) to a felony offense, with a possible prison sentence of one to five years.
For the last several years, 1 out of 10 people admitted to a West Virginia jail were charged with simple possession. If this bill passes, there will be even more people jailed for this offense, and they will be incarcerated for longer periods of time. That’s because people charged with felony offenses are more likely to face higher bonds–and therefore, more likely to be incarcerated prior to trial (81.4 percent of people awaiting trial in West Virginia jails are charged with felonies).
This change would exacerbate the state’s jail crisis: 7 out of 10 facilities are already over capacity, the Division of Corrections and Rehabilitation (DCR) faces its worst staff vacancy rates in 30 years, and counties struggle to keep up with their jail bills ($45.8 million and counting). West Virginia literally cannot afford to incarcerate its way out of this public health crisis.
The bill states that this provision is “expressly designed to assist in getting persons unlawfully using controlled substances…in obtaining treatment for any substance abuse issue they may have.” But the bill’s treatment goals don’t match the reality of treatment availability. In 2021, there were more than 4,300 jail admissions for simple possession.
That same year, all drug courts across the state admitted a total of 348 people (out of 576 that were even considered for drug court programs). At the beginning of this year, West Virginia had only 1,349 residential treatment beds across the state to offer people with substance use disorder. No matter its intentions, the effect of this bill will be more incarceration–not more treatment.
The most common felony drug charge faced by West Virginians is possession with intent to deliver a controlled substance. Today, a person convicted of that offense faces a prison sentence of 1 to 15 years. This means that if sentenced to prison, they would serve one year before they were eligible for the Parole Board to consider their release.
SB 547 would triple the minimum time a person must serve in prison from one to three years. According to the DCR, it costs the state $38,099 to imprison a person for one year. Passing this bill means tripling that cost to $114,297 for every person convicted of West Virginia’s most common drug felony.
For years, conservative groups have urged reconsideration of mandatory minimum sentencing policies. These laws take away a judge’s sentencing discretion and instead impose a mandatory minimum prison term. SB 572 imposes mandatory minimums for the felony offenses of transporting drugs into the state and delivering a controlled substance that results in death.
Some may argue that mandatory minimums are a deterrent. But as the National Academies of Sciences concluded, they aren’t. In a 50-state analysis, the Pew Charitable Trusts found no statistically significant relationship between drug imprisonment rates and three indicators of drug problems: self-reported drug use, drug overdose deaths, and drug arrests. In other words, mandatory minimums will not lead to fewer West Virginians using drugs or dying from drug overdose.
What mandatory minimums will lead to is more jail and prison overcrowding. After mandatory minimum sentences were imposed in the federal system in the 1980s, the number of people serving federal prison sentences for drug offenses grew 1,740 percent. Federal judges and prosecutors charged with implementing mandatory minimums have called them “cruel and ineffective” and one reason “why innocent people plead guilty.”
In 2020, lawmakers passed House Bill 4852, which increased the penalties for felony distribution of methamphetamine. Supporters of that bill cited the drug’s increased presence in the state. But, data shows that methamphetamine-involved overdose deaths didn’t decrease the year after HB 4852 passed. Tragically, they multiplied. In 2019, 384 West Virginians died of a methamphetamine-involved overdose. In 2021, we lost 788.
More incarceration does not reduce drug use or overdose rates. Nor does it reduce drug use behind bars: Over a two-week period this year, a dozen people incarcerated at Southern Regional Jail were hospitalized for suspected overdoses.
More incarceration does reduce the chance to save lives. Every dollar spent on incarceration is a dollar not spent on proven public health programs that reduce harmful drug use. In recent years, West Virginia has taken steps toward a public health approach.
We don’t have to go backwards.
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