Two of Del. Sally Hudson’s bills aimed at lowering the punishment for simple drug possession and making recovery easier were tabled Friday by a House of Delegates courts subcommittee, likely ending their progress this session.
Amongst the legislation introduced this session by Hudson, a Charlottesville Democrat, are three bills targeting criminal drug possession charges. They range from a small, specific issue of drug residue-related charges to a more broad proposed change in how felony possession charges are handled.
The meatiest of the bills, HB 612, sought to end felony prosecution for simple possession of narcotics to eliminate jail sentences of more than a year for possessing a small amount of controlled substances for personal use, Hudson said.
“Simple possession means the kind of quantities that could be used personally. This is not about distribution or drug dealers,” she said. “Because a felony prosecution could mean a sentence of up to 10 years, what this does is dial down the maximum penalty that someone could get for simple possession of drugs is a misdemeanor, which is a maximum jail sentence of the year.”
Under current law, a person caught with the possession of schedule I or schedule II controlled substances — which include cocaine, heroin and methamphetamine — can be sentenced up to 10 years in prison.
Possession of items with drug residue on them can also lead to felony charges, which Hudson sought to address with HB 619. The bill would change law so that mere residue of any substance that is not in a usable quantity or a countable dosage unit would not result in a criminal prosecution.
Hudson said the issue is non-partisan. She noted similar legislation has passed in more conservative states than Virginia, including Iowa, Mississippi, Oklahoma, South Carolina, Tennessee, West Virginia and Wyoming.
Despite Hudson’s perception of the bill as a non-partisan issue, House Republicans voted to table both HB 612 and 619 during the subcommittee hearing. Del. Vivian E. Watts, D-Annandale, voted not to table HB 619, but joined the Republican majority in voting to table HB 612.
Although a tabled bill may be brought up again by a committee during a General Assembly session, it is extremely rare. Tabling legislation is typically perceived as a quieter way of voting down a bill.
Various people spoke in favor of the bills Friday, including Marijuana Justice Executive Director Chelsea Higgs Wise and Nathan Mitchell of the Virginia Recovery Advocacy Project. Most of the speakers highlighted the potential for the bills to create a better path forward for people struggling with addiction and the potential for the legislation to save the courts money which could be redirected into treatment programs, such as drug courts.
Although the bills received support from some commonwealth’s attorneys, Lori DiGiosia, chief-deputy Commonwealth’s Attorney for Stafford County, spoke against them.
Speaking on HB 619, DiGiosia said that she didn’t understand how there could be a difference between residue and possession, arguing that having possessed and used a drug is “not better or different than possessing it but not having used it.”
She pointed to alternative options available to prosecutors, including drug courts, which allow charged individuals to receive treatment in lieu of jail time and often involve the reduction or removal of charges.
“The elements that [a drug was] knowingly and intentionally possessed still have to be proven by the Commonwealth. We have authority to do many different alternatives and, despite current rhetoric, prosecutors are not looking to try and convict people with felonies for possession and for being addicts,” DiGiosia said. “We are trying a lot of different alternative dispositions as a whole and I would suggest that Virginia prosecutors are progressive in trying to make sure that we’re not causing people to end up with a felony.”
“Drug overdoses are a problem in every part of Virginia, including very deep red spots, and I think that just how little political consideration these proposals got is just one more reminder of just how far Virginia is behind the times when it comes to more humane justice reform,” Hudson said. “This was not about trying to turn Virginia into California; this was about trying to help Virginia catch up with the rest of the South in how we’re confronting our drug problems.”
The last of Hudson’s drug possession-related bills, HB 618, is still up for consideration. HB 618 seeks to end felony possession as a barrier crime for employment opportunities. Given Friday’s hearing, Hudson said she is not optimistic but hopes her colleagues will consider the adverse impacts the felony possession charge has on someone’s economic opportunities and recovery.
Locally, Albemarle County Commonwealth’s Attorney Jim Hingeley and his office have been working to avoid felony possession charges for several months. A supporter of Hudson’s HB 612, Hingeley said it is important for prosecutors to consider the best response to protecting both people who are at risk of using illegal drugs and the community.
“We have people dying from overdoses, we have an ongoing opioid crisis and it’s all getting worse,” Hingeley said. “So ultimately the question for me is whether the work we’re doing prosecuting people for drug possession felonies helping us solve the problem, and I’ve come to the conclusion that it isn’t.”
Hingeley said lesser charges offer similar treatment and alternative options but have less severe impacts.
“By changing the prosecution from a felony to a misdemeanor you are making virtually no difference in the time served in practice but all the difference in removing the penalty of a felony conviction itself,” he said.
Over the last several months, Hingeley said his office has been offering defendants one of three options involving misdemeanor charges.
One is to seek substance abuse screening and treatment with the charge being dismissed if they follow through with treatment. The second, aimed at recreational users, requires defendants to stop using drugs and be tested for six months prior to a case dismissal.
The third option is for those suffering addiction and not wanting treatment. They can enter a guilty plea to the misdemeanor charge, Hingeley said, which is the same endpoint met by those who opt for the first two options but don’t succeed.
“This is not a mini drug court. We’re offering people who are using drugs or addicted to drugs, an opportunity to connect with services,” he said. “If they’re motivated to connect the services, we offer them an incentive: do it, make progress and the charge is dismissed.”
So far about a dozen defendants have been impacted by the policy, Hingeley said.