Bill levying harsh penalties for drug crimes nears passage in WV, advocates say it’s not the answer

A bill that drastically increases penalties for certain drug offenses passed the West Virginia House of Delegates on Friday. If signed into law, advocates worry how the new provisions will impact already vulnerable populations, like people who use drugs, who they say are more likely to be incarcerated even if they are not high-level “dealers.”

On Friday, the House passed the bill 98-1, with one member absent and not voting. Del. Mike Pushkin, D-Kanawha, was the only lawmaker to vote against the legislation.

A slightly different version of Senate Bill 196 passed the state Senate earlier this session. Through the committee process in the House, lawmakers amended the bill, removing provisions that required someone to know the drugs they carried or intended to distribute contained fentanyl, which through the bill language levies higher criminal penalties than ever before in the state. 

In addition, the amended version created a new code section for “kingpins,” which is defined as people who finance or manage drug conspiracies and as such are subject to enhanced penalties.

The current version of the bill added weight requirements for anyone delivering a drug that contains fentanyl to be charged with conspiracy. It also includes language for the crime of delivering a drug that results in someone’s death, with increased penalties for failing to render aid to someone who is overdosing. 

Overall, the bill introduces mandatory minimum sentences into state code for transporting cocaine, heroin, methamphetamine and fentanyl into West Virginia and removes alternative sentencing options — like probation or home confinement — for those who are jailed on those charges.

The proposed law would increase sentences against those charged with manufacturing, delivering or possessing with the intent to deliver a Schedule I or II narcotic or meth from one to five years up to three to 15 years. 

Anyone who is charged with those crimes who has more than five grams of fentanyl, among other quantities of other drugs, could face 10 to 30 years in jail.

The penalties levied in the bill are based on research from the West Virginia Fusion Center and the State Police showing that West Virginia enforces lower sanctions for certain drug charges than surrounding states. Sen. Vince Deeds, R-Greenbrier, who sponsored the bill, previously told lawmakers that he believes stronger penalties would curb the state’s ongoing drug and overdose epidemic.

But there is no data that shows stronger drug penalties anywhere curbing overdose or fatality rates related to the drug epidemic.

Deeds and other proponents for the bill have said the proposed law is meant to target high-level narcotic dealers and distributors. Deeds told a committee earlier this week that no part of the bill is meant to apply to “street-level users.”

Distinguishing between who would be considered a “drug user” and a “drug dealer,” however, is complicated, advocates say.

“Drug dealers often are drug users, and under this law there’s no real distinction,” said Jennie Hill, the assistant director for the West Virginia Alliance of Recovery Residences. “There’s no science behind these arguments at all. They said higher punishment will deter crime, but people who use drugs are going to use drugs no matter what. You could give them a death sentence for using fentanyl. If they’re addicted to fentanyl, they’re still going to carry fentanyl, still going to sell it to support the habit.”

And, Hill said, five grams of fentanyl is not a lot for people who are habitual, daily users. Some people, she continued, use five or more grams a day depending on their tolerance; if they’re carrying that amount, it’s often not because they’re dealing it.

“Instead of being able to shoot up once and be high for eight to 10 or 12 hours, like you used to on heroin, it’s like you have to get high every two, three or four hours,” Hill said. “And so if somebody’s shooting up every two hours, and they need that much, you’re getting into five and seven grams a day personal use.”

Hill is in long-term recovery for substance use disorder. Now she works with people who are entering recovery themselves and said it’s common for people who aren’t traditionally thought of as drug “dealers” to sell drugs when they’re in active addiction.

Pushkin, in explaining his vote against the bill, said he worried about challenges making similar distinctions. People who are using drugs and carrying them around are often charged with intent to deliver even if that isn’t the case, he said.

“I know who we’re trying to go after here, and I fully support that you’re trying to go after the big fish,” Pushkin said. “I think when you cast such a wide net, you’re gonna catch some little fish as well.”

The drastically increased jail time for such offenses is also a concern for Kenny Matthews, a criminal justice advocate who previously served five years behind bars on a charge of intent to deliver $20 of marijuana and $20 worth of crack cocaine. 

Matthews, who is in long-term recovery, testified in the House Judiciary Committee against the bill earlier this week. He warned lawmakers that more prison time for people with substance use disorder was only going to cause more problems in the state as it struggles to care for the incarcerated people it already has.

When people are released from incarceration, Matthews said, systems often don’t exist to set them up for success.

“[People] in long-term recovery, we believe in accountability. You’re held accountable for your actions. We’re not negating that,” Matthews said in an interview after his testimony. “What we’re negating is the fact that you want to throw away somebody for a mistake, whether intentional or not, and you want to over-penalize somebody for not a moral failing, but for a diagnosed disease, like a majority of the people with these possession of intent to delivers have.”

Matthews and Hill, along with other advocates who wrote in public comments against the legislation (no comments came in support of the bill), said the only thing that is known to work to decrease the devastation from West Virginia’s drug crisis is public health intervention.

The state’s rate of fatal overdose is already on the decline — a statistic often celebrated by the state’s leaders. Harsher penalties for drug possession and use is not the answer to deterring crime or tragedy, said Sara Whitaker, the senior criminal legal policy analyst at the West Virginia Center on Budget and Policy.

“The answer is in public health investment. The last few years, we’ve seen our state — thanks to

COVID federal funding — make additional investments in public health resources, in getting opioid reversal drugs into the hands of people who are using and people who care about them, and we’ve seen the fruits of that,” Whitaker said. “SB 196 has none of that, and it’s not going to change anything for the better.”

Following the House’s vote Friday, the passage of SB 196 was communicated to the Senate. If the Senate accepts and approves the House’s changes to the legislation, the bill will head to Gov. Patrick Morrisey’s desk for signage. The 2025 regular session is scheduled to end at midnight on Saturday.