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West Virginia's Changing Landscape of Recidivist Enhancements for Drug Convictions

Former defense attorney, and now prosecutor, Kevin Watson turned the world of recidivist enhancements on its head when he represented Marc Kilmer. Mr. Kilmer sexually assaulted his ex-girlfriend and was sentenced to a life sentence because he also had felony convictions for driving revoked for DUI, third-offense. The argument that Mr. Watson made the to the Supreme Court of Appeals of West Virginia (actually it wasn't him because he was a prosecutor at that point) was that Mr. Kilmer had no prior history of violence and that sending him to prison for life violated the State Constitution's requirement that sentences be proportional to the crime committed (the proportionality principle). The Supreme Court's return to this principle allows attorneys to argue that life sentences under West Virginia's three-strikes rule should not apply unless the defendant's actions show a pattern of violent behavior. No where is this question of violent behavior more in dispute than in the area of drug trafficking (or consensual buyer-seller relationships if you prefer defense parlance).

Two new cases emerged pitting Justice Armistead, who dissented in State v. Lane and wrote the opinion in State v. Norwood against Justice Workman, who concurred and dissented in State v. Norwood and wrote the opinion in State v. Lane. The other justices seem to be hanging on to their hats for this one. The question on everyone's mind is whether selling drugs can be considered a crime of violence. Most rational people would agree that there is nothing inherently violent about a consensual transaction of a controlled substance, but rational minds differ when considering the negative effects of drug trafficking on the community, the potential for death when highly-potent drugs like fentanyl are added to the substance, and the possibility for violence when addicts and entrepreneurs are forced into alleyways. In short, we have to wait for this body of law to develop. And develop soon it will as life sentences are being appealed which continue to question the application of life sentences to drug offenders.


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