Document Type
Student Note
Abstract
For decades, West Virginia’s recidivist statute required courts to sentence repeat felony offenders to life in prison even if their offenses were not violent. Over the years, the statute mandated life sentences for triggering offenses as minor as writing a bad check or failing to register a new phone number with the police. Unsurprisingly, the statute has come under its fair share of constitutional attack for violating the state Constitution’s proportionality principle. In 1981 the Supreme Court of Appeals of West Virginia held the state’s proportionality principle requires a strict interpretation of the recidivist statute in favor of the defendant. Despite a recent case clarifying that this principle remains good law, a review of the court’s decisions reveals its adherence to the principle is inconsistent at best and arbitrary at worst. This Note discusses two recent Supreme Court of Appeals of West Virginia decisions that starkly illustrate the court’s inconsistent application of the recidivist statute—particularly regarding defendants charged with selling controlled substances. In May 2019, the Supreme Court of Appeals of West Virginia drew a line in the sand between selling controlled substances that are completely illegal and those that may be prescribed by a medical physician. According to the court, the sale of heroin carries with it a threat of violence that the sale of oxycodone does not. This distinction ignores that the state’s drug epidemic is overwhelmingly driven by the misuse of prescription opioids. This distinction ignores the reality of the drug epidemic that continues to devastate the state and in practice, provides the state with a vehicle to sentence repeat drug offenders to life in prison—even when they have never been convicted of an offense involving violence. Just months after the court drew this arbitrary line in the sand between the two types of controlled substances, it articulated new black letter law that invites the court to continue to make arbitrary decisions—hardly ever in favor of the defendant charged with selling controlled substances. Decisions applying the new rule have continued to chip away at the well-established precedent which required the court to take a strict and narrow view of the proportionality principle in favor of the defendant. This Note urges the West Virginia Supreme Court of Appeals to rethink how it currently approaches challenges to recidivist sentences, particularly those involving nonviolent defendants convicted of controlled substance violations.
Recommended Citation
Patrick Hassen,
Drawing Lines in the Substance: Questioning the Inconsistent Application of West Virginia's Recidivist Statute in Cases Involving Controlled Substance Violations,
128
W. Va. L. Rev.
769
(2026).
Available at:
https://researchrepository.wvu.edu/wvlr/vol128/iss2/12