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Government

Civil Fines vs. Prison Time: As Opioid Trial Plays Out, Stakes Are Different For Ordinary West Virginians

Documents wheeling.jpeg
Douglas Soule
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Documents are wheeled into the federal courthouse in Charleston during the first week of the trial against drug distributors.
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The defendant appeared on a television screen at 1:30 p.m.

The courtroom was still and quiet. There wasn’t anyone in the benches to watch — no crowd of press, no excess of legal aides. It was just two lawyers, a judge, a handful of courtroom staff and a woman on a video system, phoning in from a jail 66 miles away.

This time, it was a 28-year-old from Beckley with pin-straight, auburn hair pulled up into a half ponytail. As the charges were read — intent to sell heroin, possession of a firearm — she bowed her head and stared off into the corner of the sterile, white room where she was being held. When the judge asked for her plea, she looked up and said “not guilty.” A trial date was set for August. The video screen went black at 1:38 p.m.

Thousands of West Virginians are funneled through state and federal courts for drug charges each year. The procedural hearings can last minutes. But the consequences of a guilty plea or verdict are severe: years in prison — probation if you’re lucky.

These scenes playing out in state and federal courtrooms across West Virginia are much different than the opioid trial that has brought national attention to the state.

For the past several weeks, lawyers for the City of Huntington and Cabell County have tried to convince a federal judge that the nation’s three largest drug distributors — AmerisourceBergen, Cardinal Health and McKesson — should be held responsible for sparking the opioid epidemic by shipping millions of prescription pain pills to West Virginia between 2008 and 2014.

When the pain pills dried up, residents — like the woman facing trial in Beckley — turned to illicit drugs like heroin, fentanyl and methamphetamine, they said.

Dozens of witnesses have been called to the stand to testify on behalf of Cabell County and Huntington, and beginning Friday, lawyers for the drug distributors are expected to do the same. But in the end, despite the overall significance of the judge’s ruling, there will be no jail time or personal fines.

If she’s convicted or agrees to plead guilty, the Beckley woman — who was newly pregnant and struggling with a substance use disorder when she was arrested — faces a minimum of five years behind bars.

Comparing consequences

As the landmark opioid trial carries on in U.S. District Court for the Southern District of West Virginia, cases of individuals like the one above play out in West Virginia’s local and federal courts nearly every day.

A 50-year-old from Huntington who was pulled over while driving and had heroin in his car. A 38-year-old from Charleston who sold drugs to a confidential informant working for police. A 19-year-old from Clarksburg. A 61-year-old from Montgomery.

Often, the defendants and plaintiffs reach a plea deal and the case doesn’t even go to trial.

In 2017, U.S. District Judge Joseph R. Goodwin likened that process to an assembly line, and wrote that “a contract entered into in the shadows of a private meeting” eliminated the role of an effective criminal justice system where defendants have due process.

“When it’s an individual [being tried], the consequences of the trial are really severe. It’s the person’s life. No matter what happens, it will upend their life,” said Rachel Kincaid, a former assistant federal prosecutor in West Virginia’s Southern District.

But the case against the major drug distributors is different. It’s a civil case with a possible financial penalty and no jury. The case goes after the companies, but not individual people.

Cabell County and the City of Huntington are seeking around $2 billion in damages from the three companies: about 0.4% of the companies’ collective revenue from 2020.

‘An exhaustion of human resources’

The burden of trying these drug cases is even higher at the local level, where the number of indicted drug felonies annually is in the thousands, according to the attorneys who try these cases.

There isn’t consolidated public data on the number of cases that move through the state’s courts each year, but a study by the state Division of Justice and Community Services found that more than 800 people were incarcerated in West Virginia for drug offenses in 2015. That was a 300% increase from the year 2000.

“That’s just people who actually ended up in prison that year,” said Quenton King, a criminal justice analyst for the West Virginia Center on Budget and Policy. He said the number doesn’t include the people who were diverted to drug courts, sentenced to probation or had their cases dismissed. “The number of cases filed is going to be significantly higher.”

While the drug companies on trial in Charleston have millions of dollars to spend on legal fees, Greenbrier County Chief Public Defender Joshua Edwards said that people charged with selling or possession of drugs are often appointed an attorney by the court or represented by a public defender.

Rather than run over the course of several months, he says the trials he sees for these cases typically last just two or three days. But the number of cases filed for drug charges puts strain on the system.

“I would say [we see] 100 to 150 indicted felonies because of drug use per year,” Edwards said of his county.

Beyond that, Edwards estimates that 90% of all cases heard in the court involve drugs, even if drug charges aren’t the primary offense.

Brett Ferro, the chief public defender for Marshall, Tyler and Wetzel counties, said that among the three, his office sees 800 to 900 drug-related cases a year. Most of those do not go to trial.

Ferro said that jails are overcrowded and the system is overrun with cases. Many of the cases end with plea agreements and probation sentences instead of time behind bars.

Ben Hatfield, the prosecuting attorney for Raleigh County, likened it to hospital bed shortages during the COVID-19 pandemic.

“We have so many cases that exist purely because of drugs,” Hatfield said. “[If it wasn’t for] drugs, we would be able to focus on those crimes that are committed purely for malicious reasons. But we have had to create all of these new programs trying to combat the drug problem. It is really an exhaustion of human resources.”

Oxycodone to heroin

Even though the court proceedings for the 28-year-old Beckley woman accused of selling heroin and the major opioid distributors will look much different, the cases are connected.

When AmerisourceBergen vice president Chris Zimmerman shared a lyrical parody of the theme song for The Beverly Hillbillies,” making fun of “a poor mountaineer” who purchased pills at a “cash ‘n carry” pain clinic with colleagues via email in 2011, he and others were making fun of the West Virginians — like the Beckley woman — whose lives were unraveling while his company profited.

At that time, the Beckley woman was 18 years old, coming of age in a state flooded with opioids and surrounded by neighbors who were addicted. Then, she began using herself.

She was 20 when she was arrested for selling oxycodone to an undercover police office. She was sentenced to three years’ probation.

Nearly eight years later, the pain pills have mostly given way to street drugs, but the crisis continues. Overdose deaths reached record numbers in 2020, when at least 1,275 West Virginians died from drug overdoses amid the pandemic. Although the drugs have changed over the years — there were increases in meth and fentanyl overdose deaths last year — the community impact remains. Many West Virginians are stuck in a cycle of addiction and criminal penalty.

“There’s a never ending supply of people to prosecute for drug crimes because we’re not doing anything to stop the source of the drug crimes,” said Kincaid, the former federal prosecutor. “There aren’t enough resources to get at the source of the problem … which is addiction.”

That’s what attorneys for the City of Huntington and Cabell County say they’re hoping to address by seeking money from these companies in court.

The $2 billion, they say, will go toward funding programs that will help the community move through this epidemic.


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