Bill to reduce felony drug possession charges dies in subcommittee 

Virginia lawmakers hoped to advance a bill that would eliminate felony drug possession charges and shift a focus to treatment, not punishment, of substance abuse. The measure had bipartisan support and backing from many commonwealth attorneys’ and lawyers around the state, but it died in a House subcommittee.

Anyone found in possession of controlled substances would face misdemeanor charges under House Bill 2303 introduced by Del. Sally Hudson, D-Charlottesville. The bill would also amend the conditions set for probation under the current first offender statute, which allows drug possession charges to be dismissed if certain conditions are met.

A person caught with the possession of a schedule I or schedule II controlled substances under the current law could be sentenced up to 10 years in prison. That includes drugs with high potential for abuse and dependence such as heroin, cocaine and methamphetamine. Possession of items with drug residue on them can also lead to felony charges, such as a crack pipe or heroin needle.

Under Virginia’s first offender statute individuals with no previous narcotic criminal record may get their case dismissed if they successfully pass a treatment program, make efforts to maintain employment, complete community service and remain drug and alcohol free during probation.

Hudson proposed changes to the statute that requires people to continue being tested but not that they continue to test negative. Hudson said that is in recognition “that relapse is a part of recovery from any drug abuse.”

Hudson said that incarcerating someone for drug possession is not the correct way to treat substance abuse.

“It’s a concrete step we can take this year to reduce the harmful consequences of prolonged incarceration as an ineffective deterrent and treatment strategy for substance abuse,” Hudson said during the House Courts of Justice subcommittee hearing for the bill.

Nathan Mitchell, community outreach and advocacy coordinator at the Henrico County-based McShin Foundation, said the bill is the first step toward reforming the criminal justice system. The McShin Foundation offers multiple programs for those in recovery from substance abuse.

Mitchell, a former felon , said the current system can be damaging to people who suffer from the disease of addiction.

“I became a felon,” Mitchell said. “And with that all of my civil rights, my ability to vote, my ability to run for office, serve on a jury, have a gun were all taken away with one fell swoop.”

Anyone charged with a felony in Virginia loses civil rights such as the right to vote, hold office, and serve as a juror. The bill would remove felony violations of drug possession from the definition of barrier crimes related to criminal history checks for employment and a range of volunteer opportunities.

“Health care problems require health care solutions and HB 2303 is a good first step at recognizing that drugs and substance use disorder are not a criminal justice issue,” Mitchell said. “They are in fact, a health care issue.”

Misdemeanor possession is already employed in many states such as Iowa, Oklahoma and Mississippi and also neighboring states such as West Virginia, Tennessee and the District of Columbia.

“It is a drug reform that has bipartisan support coast to coast,” Hudson said.

South Carolina and Iowa have enacted similar legislation and utilize escalating penalties where the punishment increases with every subsequent offense, according to Attorney Steve Mutnick, who serves as General Assembly counsel. In Iowa, a first time drug possession offense is a one-year misdemeanor. However, the third offense is a five-year felony.

“Continuing to accelerate the penalty and incarcerate someone for longer doesn’t seem to really get at the root cause,” Hudson said.

Norfolk Deputy Commonwealth’s Attorney Ramin Fatehi testified in support of the bill on behalf of six commonwealth’s attorneys from across the state.

“Substance abuse disorder is a matter of public health and that the primary focus of dealing with a public health issue should be the public health system,” Fatehi said.

Though the legislation marks a departure from the state’s approach to drug possession, Fatehi said the measure would bring Virginia in alignment with neighboring states and the federal system.

Fatehi said the only concern they had was directly addressed by the language in a budget amendment submitted by Del. Carrie Coyner, R-Chesterfield. The budget amendment would divert money saved from less incarceration due to reduced felony drug possession charges into treatment programs. Coyner said that jails report there aren’t enough treatment service programs.

“This is a rare instance where we can both be more just and create a significant cost savings for the people of the commonwealth of Virginia,” Fatehi said.

Supporters of the bill pointed out that the legislation was not decriminalizing or legalizing drugs or condoning the use of hard drugs. The measure also would not reduce felony charges for people caught distributing drugs or possessing drugs to distribute.

“There is no simple possession that is worth more than 12 months in jail,” Fatehi said.

Richard Johnson, with the Virginia Association for Criminal Defense Lawyers, said he lost his nephew to a heroin addiction.

“Instead of policy wise trying to teach people with addiction a lesson, this legislation tries to solve the problem,” Johnson said.

The panel never picked Hudson’s bill back up before crossover day, which is when each chamber must complete voting on any bills that will be advanced to the other chamber. Delegates said the bill was important, but there was concern about having enough time to secure the funding needed to redirect into treatment. A substitute was submitted on Feb. 3 but never heard before the subcommittee.

Hudson said the bill addressed the most immediate harms.

“We will go another year of marking another wave of Virginias with this stamp that bears life long consequences,” she said.