Petition for Writ of Certiorari — Travis Ray Norwood, Petitioner v. West Virginia
Supreme Court briefJan 31, 2020
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No. ___
I N T HE
Supreme Court of the United States
T RAVIS R AY N ORWOOD ,
Petitioner,
v.
S TATE OF W EST V IRGINIA ,
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of Appeals
of West Virginia
PETITION FOR A WRIT OF CERTIORARI
Anne Marie Lofaso
W EST V IRGINIA
U NIVERSITY
C OLLEGE OF L AW
U.S. S UPREME C OURT
L ITIGATION C LINIC
101 Law Center Dr.
Morgantown, WV 26506
Lawrence D. Rosenberg
Counsel of Record
J ONES D AY
51 Louisiana Ave., N.W.
Washington, DC 20001
(202) 879-7622
ldrosenberg@jonesday.com
Counsel for Petitioner
i
QUESTION PRESENTED
The West Virginia legislature, like many state legislatures, has determined in light of the opioid crisis
that crimes involving prescription opioids like oxycodone should be treated for punitive purposes the same
as crimes involving other opioids like heroin. In this
case, however, Petitioner Travis Ray Norwood was
sentenced to life imprisonment under West Virginia’s
recidivist statue, a determination upheld by the West
Virginia Supreme Court, while just a few weeks earlier, that same court had ruled that such a sentence
was impermissible for an almost identically situated
defendant. The only difference, acknowledged by the
West Virginia Supreme Court, was that Mr. Norwood
was convicted of an offense involving heroin, while the
other defendant, Lane, was convicted of the very same
offense involving Oxycodone.
The decision below deepens a substantial divide,
strongly implicating constitutional equal protection
and due process principles, between jurisdictions that
treat heroin and other opioids the same and those that
treat them differently. It presents an especially stark
example of differential treatment that affects perhaps
millions of defendants.
The question presented is:
Whether, and under what circumstances, can defendants charged with crimes involving Schedule I
opioids such as heroin be constitutionally treated differently for punitive purposes from defendants
charged with the same crimes involving Schedule II
opioids such as oxycodone.
ii
PARTIES TO THE PROCEEDING
AND RELATED CASES
Petitioner is Travis R. Norwood, an individual.
He was the Petitioner-Defendant below.
Respondent is the State of West Virginia. It was
the Plaintiff-Respondent below.
There are no corporate parties requiring a
disclosure statement under Supreme Court Rule 29.6.
Supreme Court of Appeals of West Virginia:
State v. Norwood, No. 17-0978 (Opinion filed
May 30, 2019)
Circuit Court of Greenbrier County, West
Virginia:
State v. Norwood, Criminal Action No. 16-F-136
(Sentencing filed May 19, 2017)
Norwood v. Ames, Civil Action No. 19-C-130 (Order
Denying Petition for Writ of Habeas Corpus filed
January 2, 2020)
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDING AND
RELATED CASES .................................................. ii
TABLE OF AUTHORITIES ...................................... vi
PETITION FOR A WRIT OF CERTIORARI............. 1
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
STATUTORY PROVISIONS INVOLVED ................. 1
INTRODUCTION ....................................................... 2
STATEMENT ............................................................. 2
REASONS TO GRANT THE PETITION .................. 5
I. The State and Federal Courts Are Deeply
Divided on the Disparate Sentencing
of Opioids ............................................................... 6
A. The West Virginia Supreme Court
Has Contradicted Itself On Opioid
Sentencing ........................................................ 7
B. Federal Courts Have Deepened The
Division of Authority on Disparate
Opioid Sentencing ............................................ 9
C. Other States Have Likewise Deepened
The Division of Authority on Disparate
Opioid Sentencing .......................................... 10
iv
TABLE OF CONTENTS
(continued)
Page
II. Disparate Opioid Sentencing Is A
Nationally Important And Recurring
Issue ..................................................................... 12
III. This Case Provides An Ideal Vehicle To
Resolve Arbitrary Disparate Sentencing
of Opioids ............................................................. 15
A. The West Virginia Supreme Court’s
Disregard For Precedent Is Clear ................. 16
B. This Case Has No Mootness Concerns
Nor Other Vehicle Problems ......................... 17
IV. The Decision Below Is Incorrect and
Unconstitutional ................................................. 18
A. The West Virginia Supreme Court’s
Decision Denies Mr. Norwood Equal
Protection ....................................................... 18
B. The West Virginia Supreme Court’s
Decision Denies Mr. Norwood Due
Process ............................................................ 21
C. The Decision Below Is Incorrect and
Unconstitutional Because It
Circumvented The West Virginia
Legislature ..................................................... 23
CONCLUSION ......................................................... 25
APPENDIX A: Opinion of the Supreme Court
of Appeals of West Virginia
(May 30, 2019) ..................................................... 1a
v
TABLE OF CONTENTS
(continued)
Page
APPENDIX B: Order of the Supreme Court
of Appeals of West Virginia Denying
Rehearing
(September 5, 2019) .......................................... 40a
APPENDIX C: Statutory Appendix ....................... 41a
vi
TABLE OF AUTHORITIES
Page(s)
CASES
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) .............................................. 18
Gardner v. Florida,
430 U.S. 349 (1977) .............................................. 21
Ingraham v. Wright,
430 U.S. 651 (1977) .............................................. 21
Kimbrough v. United States,
552 U.S. 85 (2007) ................................................ 10
Matthews v. Eldridge,
424 U.S. 319 (1976) .............................................. 22
Melton v. People,
451 P.3d 415 (Colo. 2019)..................................... 24
People v. Berry,
140 Ill. App. 3d 994 (1986) ................................... 11
State v. Ellison,
255 So. 3d 568 (La. 2018) ..................................... 11
State v. Hoyle,
836 S.E.2d 817 (W. Va. 2019) ............ 16, 17, 20, 21
State v. Jones,
420 S.E.2d 736 (W. Va. 1992) ........................ 19, 20
State v. Lane,
826 S.E.2d 657 (W. Va. 2019) .......................passim
State v. Lewis,
468 So. 2d 557 (La. 1985) ..................................... 11
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
State v. Vance,
262 S.E.2d 423 (W. Va. 1980) .............................. 21
State ex rel. Daye v. McBride,
658 S.E.2d 547 (W. Va. 2007) .............................. 20
United States v. Lewis,
521 F. App’x 109 (4th Cir. 2013) .......................... 10
Vill. of Willowbrook v. Olech,
528 U.S. 562 (2000) .............................................. 18
Wells-Yates v. People,
454 P.3d 191 (Colo. 2019)..................................... 24
CONSTITUTIONAL AND STATUTORY AUTHORITIES
U.S. Const. Amendment XIV, § 1 ....................... 18, 21
28 U.S.C. § 1257 .......................................................... 1
Cal. Health & Safety Code § 11352.5 ....................... 12
Colo. Rev. Stat. Ann. § 18-18-405 ............................. 11
D.C. Code Ann. § 48-904.01 ...................................... 11
Ga. Code Ann. § 16-13-30 .......................................... 11
Haw. Rev. Stat. Ann. § 712-1240 .............................. 11
Idaho Code Ann. § 37-2732 ....................................... 11
Ill. Comp. Stat. Ann. 570/401 .................................... 11
Ind. Code Ann. § 35-48-4-1 ........................................ 11
Iowa Code Ann. § 124.401 ......................................... 12
La. Stat. Ann. § 40:966 .............................................. 11
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
La. Stat. Ann. § 40:967 .............................................. 11
Mich. Comp. Laws Ann. § 333.7401.......................... 11
Miss. Code Ann. § 41-29-139 ..................................... 11
Nev. Rev. Stat. Ann. § 453.321 ................................. 11
Nev. Rev. Stat. Ann. § 453.3385 ............................... 11
Nev. Rev. Stat. Ann. § 453.3395 ............................... 11
Okla. Stat. § 2-401 ..................................................... 11
Or. Rev. Stat. Ann. § 475.830.................................... 12
Or. Rev. Stat. Ann. § 475.850.................................... 11
R.I. Gen Laws § 21-28-4.01 ....................................... 11
Utah Code Ann. § 58-37-8 ......................................... 11
Vt. Stat. Ann. Title 18, § 4233 .................................. 12
Vt. Stat. Ann. Title 18, § 4234 .................................. 12
W. Va. Code Ann. § 60A-2-203 .............................. 3, 23
W. Va. Code Ann. § 60A-2-204 .............................. 3, 23
W. Va. Code Ann. § 60A-2-205 .............................. 3, 23
W. Va. Code Ann. § 60A-2-206 .............................. 3, 23
W. Va. Code Ann. § 60A-4-401 ...........................passim
W. Va. Code Ann. § 61-11-18................................... 3, 4
W. Va. Code Ann. § 61-11-26..................................... 23
ix
TABLE OF AUTHORITIES
(continued)
Page(s)
OTHER AUTHORITIES
2018 FBI Uniform Crime Report,
Arrests Table ........................................................ 14
2018 FBI Uniform Crime Report,
Table 29 ................................................................ 14
American Law Reports,
Imposition of Enhanced Sentence
Under Recidivist Statute As Cruel
and Unusual Pun-ishment,
27 A.L.R. Fed. 110 ................................................ 14
American Law Reports,
Review For Excessiveness of
Sentence in Narcotics Case,
55 A.L.R. 3d 812 ................................................... 14
Wilson M. Compton et al,
Relationship Between Nonmedical
Prescription-Opioid Use and Heroin Use,
374 N. ENGL. J. Med. 154 (Jan. 14, 2016) ......... 12
Asbjorn M. Drewes, et al.,
Differences between opioids:
pharmacological, experimental,
clinical and economic perspectives,
British Journal of Clinical
Pharmacology (May 3, 2012) ............................... 13
x
TABLE OF AUTHORITIES
(continued)
Page(s)
Ben Fabens-Lassen,
A Cracked Remedy: The Anti-Drug
Abuse of 1986 and Retroactive
Application of the Fair Sentencing
Act of 2010,
37 Temp. L. Rev. 645 (2015) ................................ 13
Matthew R. Pincus, et al.,
Henry’s Clinical Diagnosis and
Management by Laboratory
Methods, Toxicology and Therapeuric
Drug Monitoring (23 ed. 2016) ...................... 12, 13
Rachel L. Rothberg & Kate Stith,
Symposium: Law and the Opioid
Crisis: The Opioid Crisis and Federal
Criminal Prosecution,
46 J. L. Med. & Ethics 292 (2018) ................. 13, 14
Julie A. Warren,
Defining the Opioid Crisis and the
Limited Role of the Criminal Justice
System Resolving it,
48 U. Mem. L. Rev. 1205 (2018) .......................... 13
U.S.S.G. § 2D1.1 (1986) ............................................. 13
U.S.S.G. § 2D1.1 (2010) ....................................... 10, 13
PETITION FOR A WRIT OF CERTIORARI
Petitioner Travis R. Norwood respectfully petitions
for a writ of certiorari to review the judgment of the
Supreme Court of Appeals of West Virginia in this
case.
OPINIONS BELOW
The Supreme Court of West Virginia’s opinion (Pet.
App. 1a–39a) is reported at 832 S.E.2d 75. The Circuit
Court of West Virginia’s judgment is unreported but is
available at 2017 WL 10752281.
JURISDICTION
The Supreme Court of West Virginia entered judgment on May 30, 2019 (Pet. App. 1a) and denied rehearing on September 5, 2019. Pet. App. 40a. On November 25, 2019, Chief Justice Roberts extended the
time to file a petition for a writ of certiorari until January 31, 2020. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1257(a).
STATUTORY PROVISIONS INVOLVED
Relevant statutory provisions are reprinted at Pet.
App. 41a–46a.
2
INTRODUCTION
In light of the opioid crises that has affected millions
of Americans, there has developed a substantial disparity in how defendants charged with crimes involving Schedule I opioids such as heroin are treated for
punitive purposes compared to defendants charged
with crimes involving Schedule II opioids such as oxycodone. Some of this disparity has been ordered by
state legislatures and courts, as well as the federal
sentencing guidelines, while some of this disparity has
been forbidden by state legislatures and courts.
This case involves a blatant example of such disparate treatment in direct contravention of the West Virginia legislature’s mandate that defendants charged
with crimes involving Schedule I opioids be treated the
same for punitive purposes as defendants charged
with crimes involving Schedule II opioids in a way that
plainly violates constitutional principles of equal protection and due process.
This Court’s intervention is essential to make clear
that the disparate treatment involved in this case is
constitutionally impermissible and to provide guidance in potentially millions of drug cases as to whether
and under what circumstances defendants charged
with crimes involving Schedule I opioids can be
treated differently from defendants charged with the
same crimes involving Schedule II opioids.
The petition should be granted.
STATEMENT
A. Under West Virginia law, “it is unlawful for any
person to manufacture, deliver, or possess with intent
to manufacture or deliver, a controlled substance.” W.
Va. Code § 60A-4-401 (a). “Controlled substances” are
3
defined in various “Schedules,” and heroin, oxycodone,
and other opioids are included in Schedules I and II,
which are reserved for the most serious and dangerous
drugs. W. Va. Code Ann. § 60A-2-204(c) (including heroin in Schedule I); Id. § 60A-2-206 (including oxycodone in Schedule II); Id. § 60A-2-203, § 60A-2-205 (explaining that both Schedule I and II drugs have a
“high potential for abuse”). West Virginia’s criminal
code specifically provides that “[a]ny person who violates” the law against selling a “controlled substance
classified in Schedule I or II” shall receive the same
sentence (“not less than one year nor more than fifteen
years” for first time offenders). Id. § 60A-4-401(a)(i)
(emphasis added). In other words, West Virginia’s
criminal code requires that Schedule I and II drugs be
treated equally for sentencing purposes.
B. West Virginia also has a habitual offender statute that requires a mandatory life sentence when its
conditions are satisfied. In particular, a person that
has “been twice before convicted in the United States
of a crime punishable by confinement in a penitentiary
. . . shall be sentenced to be confined in the state correctional facility for life.” Id. § 61-11-18 (c). A defendant charged with violating this recidivism statute is
entitled to a jury trial to decide if the defendant is the
same person who was convicted of the previous felonies. Id.
C. In the present case, the defendant, Mr. Norwood, was convicted of selling a controlled substance
under West Virginia Code § 60A-4-401. Pet. App. 5a.
The basis for the conviction was that he had made arrangements to sell 3.5 grams of heroin, a “Schedule I”
drug in West Virginia, for $221 to a confidential informant who Mr. Norwood met in a Pizza Hut parking
4
lot. Pet. App. 5a–10a. He had two prior convictions in
another state, one for selling marijuana and another
for “eluding police,” for which he merely received probation after short terms in jail. Pet. App. 9a–10a, 32a–
34a. Nonetheless, Mr. Norwood received a life sentence
for his new controlled substance offense under the
state’s habitual offender statute, West Virginia Code §
61-11-18. Pet. App. 10a. The court affirmed the life
sentence, rejecting Mr. Norwood’s argument that it
was impermissibly disproportionate. Pet. App. 16a–
24a.
D. Notably, the majority admitted that the Norwood decision squarely conflicts with the Court’s earlier decision in State v. Lane, 826 S.E.2d 657 (W. Va.
2019), decided less than two months before Norwood.
In Lane, the defendant was convicted of the same
crime as Mr. Norwood, selling a controlled substance.
Id. at 662 (citing West Virginia Code § 60A-4-401). The
facts were substantially the same as in Norwood: Mr.
Lane sold an opioid, in his case the “Schedule II” drug
Oxycodone, in controlled buys to a confidential informant. Id. at 660. Mr. Lane likewise had two prior felony
convictions for which he received “not serious” penalties, like probation. Id. at 664. And he also initially received a life sentence under West Virginia’s habitual
offender law for his offense of selling a controlled substance. Id. at 660. But, unlike in Norwood, the West
Virginia Supreme Court reversed Mr. Lane’s sentence.
Id. at 660. “[T]he facts surrounding” Mr. Lane’s final
offense for selling a controlled substance, the court explained, “did not involve any actual or threatened violence.” Id. at 664. Accordingly, the court held that the
life sentence “violates the proportionality clause” and
was impermissible. Id.
5
As the dissent in Norwood explained, “[t]he only difference between the charge in Lane and the charge in
the case at bar is that Lane involved the drug Oxycodone and, here, it was heroin.” Pet. App. 31a. (Workman, J., concurring in part and dissenting in part).
The majority decision below thus “unquestionably conflicts with” the West Virginia Supreme Court’s own
law and “undeniably treats two similarly situated individuals disparately.” Pet. App. 35a. (Workman, J.,
concurring in part and dissenting in part). The sole basis the majority in Norwood offered for reaching opposite conclusions was its unsupported surmise that
“due to the nature of heroin itself, heroin trafficking
clearly warrants application of the recidivist statute.”
Pet. App. 19a.
Moreover, Norwood’s disparate treatment of heroin
and Oxycodone is inconsistent with West Virginia’s
criminal code. The West Virginia Legislature specifically provided that “[a]ny person” who sells a “Schedule I or II” drug like heroin or Oxycodone is supposed
to receive the same sentence. Yet Mr. Norwood’s life
sentence was affirmed while Mr. Lane’s was reversed.
* * * * *
Accordingly, absent this Court’s review, Travis Norwood will remain in prison for the rest of his life for
distributing a small amount of heroin instead of Oxycodone, despite the West Virginia Legislature’s express directive otherwise.
REASONS TO GRANT THE PETITION
The petition should be granted. First, this Court’s
review is essential to make clear that the blatantly differential treatment by the West Virginia Supreme
6
Court violates equal protection and due process protections and to provide guidance to the lower courts as
to whether and under what circumstances defendants
charged with crimes involving Schedule I opioids such
as heroin can be treated differently from defendants
charged with the same crimes involving Schedule II
opioids such as oxycodone. Second, the question is important and recurring, as potentially millions of defendants are affected by the current regime that includes substantial disparities in treatment of defendants charged with crimes involving opioids. Third, this
case is an ideal vehicle for this Court to address the
question presented, given the stark disparate treatment involved here that contradicts the West Virginia
legislature’s mandate to treat crimes involving Schedule I opioids such as heroin the same for punitive purposes as crimes involving Schedule II opioids such as
oxycodone; this case also has no mootness or other vehicle problems. Finally, the decision below violates
both equal protection, given the unjustified differential treatment with no rational basis, and due process,
given that the West Virginia Supreme Court plainly
misapplied its own prior precedent to impermissibly
give Mr. Norwood a life sentence.
I. The State and Federal Courts Are Deeply
Divided on the Disparate Sentencing of
Opioids
The lower courts are deeply divided about the circumstances in which it is constitutionally permissible
to impose vastly harsher sentences on defendants convicted of selling heroin as compared to defendants convicted of identical crimes involving similar opioids like
Oxycodone.
7
A. The West Virginia Supreme Court Has Contradicted Itself On Opioid Sentencing
To begin with, the West Virginia Supreme Court has
squarely contradicted itself and circumvented the will
of its own legislature to hold that (1) it is permissible
to impose a life sentence under a habitual offender
statute on a defendant convicted of selling a controlled
substance, in particular heroin; but (2) it is impermissible to impose such a sentence on a defendant convicted of the identical crime, except involving the controlled substance Oxycodone. In other words, according to the West Virginia Supreme Court, the constitution permits two defendants convicted of the exact
same crime under materially identical circumstances
to receive vastly different sentences despite an express
legislative directive to the contrary.
1. As discussed above, in the present case, Mr. Norwood was convicted under West Virginia law, for selling
a small amount of heroin to a confidential informant.
Pet. App. 5a. He had two prior convictions in another
state for which he received primarily probation. Pet.
App. 9a–10a, 32a–34a. Nonetheless, Mr. Norwood received a life sentence for his new controlled substance
offense under West Virginia’s habitual offender statute.
Pet. App. 10a. The court affirmed the life sentence, rejecting Mr. Norwood’s argument that it was unconstitutionally disproportionate. Pet. App. 16a–24a.
2. The West Virginia Supreme Court’s decision
that Mr. Norwood’s life sentence was permissible is
squarely contrary to that Court’s own precedent. In
State v. Lane, the West Virginia Supreme Court held
that a recidivist life sentence is impermissible in circumstances materially identical to Mr. Norwood’s case.
8
Mr. Lane was convicted of the same controlled-substance crime as Mr. Norwood. 826 S.E.2d at 662. And,
like Mr. Norwood, Mr. Lane sold a small amount of an
opioid, in his case Oxycontin, to a confidential informant. Id. at 660. Mr. Lane likewise had two prior convictions for which he received light sentences. Id. at
664. Nonetheless, Mr. Lane received a life sentence under West Virginia’s habitual offender law for his new
controlled substance offense. Unlike in Norwood, however, the West Virginia Supreme Court reversed Mr.
Lane’s sentence, reasoning that the sentence was disproportionate because the facts surrounding the offense “did not involve any actual or threatened violence.” Id.
Lane should have controlled the outcome in Norwood, as the facts were materially identical. In both
cases, the defendant’s final offense for selling an opioid
to a confidential informant “did not involve any actual
or threatened violence.” Id. Yet the West Virginia Supreme Court reached opposite conclusions. As the dissent in Norwood explained, “[t]he only difference between the charge in Lane and the charge in the case at
bar is that Lane involved the drug Oxycodone and,
here, it was heroin.” Pet. App. 31a. (Workman, J., concurring in part and dissenting in part). The majority
decision below thus “unquestionably conflicts with”
the West Virginia Supreme Court’s own law and “undeniably treats two similarly situated individuals disparately.” Pet. App. 35a. (Workman, J., concurring in
part and dissenting in part). The sole basis the majority in Norwood offered for reaching opposite conclusions was its unsupported surmise that “due to the nature of heroin itself, heroin trafficking clearly warrants application of the recidivist statute.” Pet. App.
9
19a. But such judicial speculation cannot be the difference between a recidivist life sentence that comports
with the constitution and one that does not, particularly
given that heroin and Oxycodone are both deadly opioids.
3. Not only did the West Virginia Supreme Court
contradict its own precedent in Norwood, but it is also
circumvented the West Virginia Legislature’s specific
directive to treat Schedule I and II drugs as equals for
sentencing purposes. West Virginia’s criminal code
specifically provides that “[a]ny person who violates”
the law against selling a “controlled substance classified in Schedule I or II”—including both heroin and
Oxycodone—shall receive the same sentence. W. Va.
Code Ann. § 60A-4-401(a)(i). Hence, “under the express statutory language with which both the defendant in Lane and the petitioner in this case were
charged, both Schedule I and Schedule II drugs are
treated the same.” Pet. App. 31a. (Workman, J., concurring in part and dissenting in part). But the majority in Norwood simply ignored this plain legislative directive. In doing so, the West Virginia Supreme Court
did not even attempt to explain how circumventing its
own legislature to require vastly different sentences
for similarly situated defendants convicted of identical
crimes could possibly comport with constitutional
principles of equal protection and due process.
B. Federal Courts Have Deepened The Division of Authority on Disparate Opioid Sentencing
In addition to contradictory outcomes in West Virginia, the federal courts have deepened the division of
authority regarding the constitutionality of disparate
opioid sentencing.
10
The ultimate outcome of the West Virginia Supreme
Court’s inconsistent decisions is that defendants convicted of selling a controlled substance are treated
more harshly when the substance is heroin instead of
Oxycodone. The federal courts, however, do just the opposite. Under the federal sentencing guidelines, Oxycodone is treated 6.7 times more harshly than heroin.
Compare U.S.S.G. 2D1.1 (drug conversion table
providing that “1 gm of Oxycodone (actual) = 6700 gm”)
with U.S.S.G. 2D1.1 (drug conversion table providing
that “1 gm of Heroin = 1 kg”). The Fourth Circuit has
held that this disparate treatment is constitutional.
United States v. Lewis, 521 F. App’x 109, 111 (4th Cir.
2013) (rejecting argument that harsher treatment of
Oxycodone and oxymorphone as compared to heroin
under federal sentencing guidelines is an “unsupported distinction” that “violates” “due process”). A
similar case is currently pending in the Ninth Circuit,
where the defendant was convicted of distributing Oxycodone and now challenges the “unwarranted disparities” in the federal sentencing of opioids. United
States v. Dennis McPherson, No. 19-10024, Appellant’s
Opening Brief (Sept. 25, 2019); cf. Kimbrough v.
United States, 552 U.S. 85, 110 (2007) (holding that
district courts have discretion to conclude that federal
guidelines’ crack cocaine/powder cocaine disparity
yields sentence “greater than necessary”).
C. Other States Have Likewise Deepened The
Division of Authority on Disparate Opioid
Sentencing
Other states further demonstrate a nationwide division of authority on the disparate sentencing for
crimes involving Schedule I opioids like heroin and
Schedule II opioids like Oxycodone.
11
1. In addition to the West Virginia Supreme Court
and federal guidelines’ opposite approaches, many
states have charted still a third path: At least 12 states
and the District of Columbia require that Schedule I
and II opioids, including heroin and Oxycodone, be
treated equally for sentencing purposes. See Colo. Rev.
Stat. Ann. § 18-18-405; D.C. Code Ann. § 48-904.01;
Ga. Code Ann. § 16-13-30(b) & (d); Haw. Rev. Stat. Ann.
§ 712-1240; Idaho Code Ann. § 37-2732; Ill. Comp. Stat.
Ann. 570/401; Ind. Code Ann. § 35-48-4-1; Mich. Comp.
Laws Ann. § 333.7401; Miss. Code Ann. § 41-29-139;
Nev. Rev. Stat. Ann. § 453.321(2); Okla. Stat. § 2-401;
R.I. Gen Laws § 21-28-4.01; Utah Code Ann. § 58-37-8.
See also People v. Berry, 140 Ill. App. 3d 994 (1986))
(affirming sentence where defendant received same
term for selling Schedule I controlled substance and
for selling Schedule II controlled substance).
2. Other states, however, treat heroin more
harshly than other opioids, including Oxycodone. One
such state is Louisiana. Compare La. Stat. Ann.
§ 40:966(B)(3) (heroin) with La. Stat. Ann.
§ 40:967(B)(3) (Oxycodone); see also State v. Ellison,
255 So. 3d 568, 571 (La. 2018) (Johnson, C.J., dissenting) (criticizing as “inconceivable” the “stark disparity”
in Louisiana between defendants who use “legally prescribed opioids” and those who use “unlawfully obtained heroin”); State v. Lewis, 468 So. 2d 557, 560 (La.
1985) (affirming life sentence for heroin possession under habitual offender statute and holding that such a
sentence is not disproportionate under United States
Constitution). Likewise, a number of additional states
similarly treat heroin more harshly. Compare Nev. Rev.
Stat. Ann. § 453.3385 with Nev. Rev. Stat. Ann.
§ 453.3395; compare Or. Rev. Stat. Ann. § 475.850 with
12
Or. Rev. Stat. Ann. § 475.830; compare Vt. Stat. Ann.
tit. 18, § 4233(b)(1) with Vt. Stat. Ann. tit. 18,
§ 4234(b)(1); see also Iowa Code Ann. § 124.401; Cal.
Health & Safety Code § 11352.5.
* * * * *
In sum, there is a nationwide division of authority
among the state and federal courts on the question of
whether and under what circumstances identical drug
crimes may be sentenced differently solely on the basis
that one crime involved heroin and the other Oxycodone. The Court should therefore grant this Petition to
make clear that West Virginia’s disparate treatment
of similarly-situated offenders is constitutionally impermissible and to provide much-needed guidance on
whether and under what circumstances defendants
charged with crimes involving opioids such as heroin
can be treated more harshly than defendants charged
with the same crimes involving other opioids such as
Oxycodone.
II. Disparate Opioid Sentencing Is A Nationally
Important And Recurring Issue
Questions about opioid sentencing disparities are
recurring and of national importance, thus warranting
this Court’s review.
A. “The nonmedical use of prescription opioids is a
major public health issue in the United States.” Wilson M. Compton et al, Relationship Between Nonmedical Prescription-Opioid Use and Heroin Use, 374 N.
ENGL. J. MED. 154, 154 (Jan. 14, 2016). Opiates activate neurological opioid receptors in order to block
nerve conduction and diminish the sensation of pain.
Matthew R. Pincus, et al, Henry’s Clinical Diagnosis
and Management by Laboratory Methods, Toxicology
13
and Therapeutic Drug Monitoring (23 ed. 2016). There
are four primary types of opioids; Oxycodone is classified as a semisynthetic painkiller, while heroin gets its
own category. Julie A. Warren, Defining the Opioid
Crisis and the Limited Role of the Criminal Justice
System Resolving it, 48 U. Mem. L. Rev. 1205, 1210–
11 (2018). Heroin is nevertheless “pharmacologically
similar to prescription opioids.” Compton, et al. at
154. Indeed, “[i]n head to head comparisons, most
studies have failed to show relevant differences between [opioids] . . . .” Asbjorn M. Drewes, et al., Differences between opioids: pharmacological, experimental,
clinical and economic perspectives, British Journal of
Clinical Pharmacology (May 3, 2012).
B. As a historical analogy, the crack epidemic of
the 1980s drew public fear and sensational media coverage. Ben Fabens-Lassen, A Cracked Remedy: The
Anti-Drug Abuse of 1986 and Retroactive Application
of the Fair Sentencing Act of 2010, 37 Temp. L. Rev.
645 (2015). With the Anti-Drug Abuse Act, crack was
sentenced at a 100:1 rate of cocaine. U.S.S.G. §
2D1.1(c) (1986). The Fair Sentencing Act of 2010 lightened the crack to cocaine ratio to 18:1. U.S.S.G. §
2D1.1(c) (2010). There is still a widespread belief that
crack makes users more dangerous than cocaine users.
Fabens-Lassen, at 661. But, as is shown by the reduction in sentencing, the rate of violence is not 100 times
that of cocaine. This disparity between sentencing has
plagued the courts and society for decades and is still
a prevalent issue.
C. As most pertinent here, the opioid epidemic has
ravaged many parts of the United States, and prosecutors have taken notice. Rachel L. Rothberg & Kate
Stith, Symposium: Law and the Opioid Crisis: The
14
Opioid Crisis and Federal Criminal Prosecution, 46 J.
L. Med. & Ethics 292 (2018). Similar to crack and cocaine, opioids come in many different forms. This case
deals with disparities between heroin and Oxycodone.
In this instance, the West Virginia Supreme Court defied its own legislature’s mandate and has decided
that heroine offenses deserve a heavier sentence based
on an unsubstantiated perceived risk of violence inherent in such offenses. See Pet. App. 19a–21a. But
unlike with crack and powder cocaine, there is no support for the notion that crimes involving heroin are
more likely to involve violence than those involving
other opioids such as oxycodone. That is why numerous state legislatures, including West Virginia’s, have
mandated that crimes involving heroin and other opioids be treated the same for punitive purposes.
D. The disparate sentencing of opioid crimes has
potentially affected millions of Americans already and
stands to affect millions more unless this Court intervenes. In 2018 alone, there were more than 1.6 million
arrests for drug abuse violations—the highest number
of any category of crime. 2018 FBI Uniform Crime Report, Table 29, available at https://ucr.fbi.gov/crimein-the-u.s/2018/crime-in-the-u.s.-2018/tables/table-29.
Of these arrests, more than 400,000 related to heroin,
cocaine, or their derivatives, such as oxycodone. See
2018 FBI Uniform Crime Report, Arrests Table, available at https://ucr.fbi.gov/crime-in-the-u.s/2018/crimein-the-u.s.-2018/topic-pages/persons-arrested.
The state and federal courts have similarly been
flooded with thousands of criminal cases involving opioids. See generally American Law Reports, Review For
Excessiveness of Sentence in Narcotics Case, 55
A.L.R.3d 812 (compiling thousands of cases reviewing
15
narcotics sentences for excessiveness); see also American Law Reports, Imposition of Enhanced Sentence
Under Recidivist Statute As Cruel and Unusual Punishment, 27 A.L.R. Fed. 110 (similarly compiling
cases). This incredible volume of criminal cases further underscores the need for this Court to address
opioid sentencing disparities.
E. In sum, the nation is riddled with drug crime
related to the opioid epidemic. The disparate sentencing of opioid crimes affects millions and will continue
to do so until this Court intervenes. At present, the
sentence a defendant receives for an opioid crime depends not on the offense, but on the state in which the
offense occurs. Federal guidelines do not provide clarity on the issue. In fact, as discussed above in Section
I, the federal guidelines provide for the harsher treatment of crimes involving Oxycodone than heroin,
while some state courts treat the two drugs the same,
and still others treat heroin more harshly than Oxycodone. It is vital that this Court provide clarity to the
lower courts. The need for review is especially stark in
this case, given that the West Virginia Supreme Court
has circumvented the express directive of its legislature by treating heroin and oxycodone unequally for
sentencing purposes.
III. This Case Provides An Ideal Vehicle To
Resolve Arbitrary Disparate Sentencing of
Opioids
Review is further warranted, as this case provides
an ideal vehicle to resolve the division of authority on
the disparate sentencing of defendants charged with
offenses involving opioids.
16
A. The West Virginia Supreme
Disregard For Precedent Is Clear
Court’s
This case provides a blatant example of a state supreme court disregarding its own precedent and circumventing its own legislature to arbitrarily treat
similarly situated criminal defendants disparately.
1. As discussed above, Norwood directly contradicted the West Virginia Supreme Court’s prior decision in State v. Lane. 826 S.E.2d 657. Norwood also
circumvented the express wishes of the West Virginia
Legislature to treat Schedule I and II drugs—including heroin and Oxycodone—equally for purposes of
sentencing. The result is the arbitrarily disparate
treatment of similarly situated defendants convicted
of identical crimes. This egregious outcome violates
equal protection and due process, and this case presents the perfect vehicle to correct the West Virginia
Supreme Court’s grave error.
2. The lower court’s disregard for precedent
starkly and squarely presents an unresolved equal
protection issue of arbitrary, disparate treatment.
A clearer example of treating “two similarly situated individuals disparately” based solely on an arbitrary drug distinction would be hard to imagine. In
fact, the West Virginia Supreme Court itself acknowledged that in State v. Norwood and State v. Lane the
“[c]ourt arrived at two different conclusions,” despite
the fact that the cases presented “nearly identical
facts.” State v. Hoyle, 836 S.E.2d 817, 832–33 (W. Va.
2019). Critically, the court noted that the underlying
offenses in Lane and Norwood were essentially equivalent: “one violent and one nonviolent underlying felony” in each case. Id. at 833. Although the Hoyle court
17
attempted to find “consistency in [its] law” by attempting to clarify proportionality requirements under the
state constitution, it did nothing to address the arbitrary drug distinction in Norwood that was unsupported by the legislature. Id. The court simply held
that “for purposes of a life recidivist conviction, . . . two
of the three felony convictions considered must have
involved either (1) actual violence, (2) a threat of violence, or (3) substantial impact upon the victim such
that harm results.” Id. Thus, after Hoyle, Mr. Norwood’s sentence still stands, and all future heroin deliveries will be irrebuttably presumed violent in sharp
contrast with Oxycodone deliveries.
B. This Case Has No Mootness Concerns Nor
Other Vehicle Problems.
This case is also an ideal vehicle because Mr. Norwood will be serving his life sentence while the question is litigated, and, thus, the case is very unlikely to
become moot after being selected for review. Additionally, as the state supreme court answered all pending
questions before it, there are no alternative grounds
on which to resolve the case.
This case squarely presents the question presented
and is an ideal vehicle to provide guidance as to
whether and under what circumstances defendants
charged with crimes involving Schedule I opioid such
as heroin can be treated differently from defendants
charged with the same crimes involving Schedule II
opioids such as oxycodone.
18
IV. The Decision Below Is Incorrect and Unconstitutional
Finally, this Court’s review is warranted because
the Supreme Court of West Virginia’s decision is incorrect and violates equal protection and due process.
This Court should grant the Petition and reverse.
A. The West Virginia Supreme Court’s
Decision Denies Mr. Norwood Equal
Protection
The Fourteenth Amendment prohibits states from
“deny[ing] to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV,
§ 1. As interpreted by this Court, the Equal Protection
Clause is “a direction that all persons similarly situated should be treated alike.” City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing
Plyler v. Doe, 457 U.S. 202, 216 (1982)). An individual
can establish a successful equal protection claim by
“alleg[ing] that [he] has been intentionally treated differently from others similarly situated and that this is
no rational basis for the difference in treatment.” Vill.
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citing Sioux City Bridge Co. v. Dakota Cty., 260 U.S. 441
(1923); Allegheny Pittsburgh Coal Co. v. Comm’n of
Webster Cty., 488 U.S. 336 (1989)).
Here, Mr. Norwood’s rights to equal protection were
violated because the West Virginia Supreme Court applied the recidivist statute to him differently than the
court had applied that statute to another, similarly situated defendant. As discussed at length above, in
State v. Norwood, the West Virginia Supreme Court
reversed the life sentence of a similarly situated criminal defendant convicted of delivery of Oxycodone, a
19
Schedule II drug, under the same recidivist statute.
Notwithstanding the result in Lane less than two
months earlier, the West Virginia Supreme Court upheld Mr. Norwood’s conviction of one count of delivery
of heroin—a Schedule I controlled substance—in violation of West Virginia Code § 60A-4-401(a) and his resulting life recidivist sentence. Pet. App. 5a–6a.
In drawing opposing conclusions, the West Virginia
court treated other materially similar underlying facts
differently. For example, although both cases involved
confidential informants who recorded a controlled buy
from the defendant, only in Norwood did the majority
placed great weight on the supposed substantial risk
of violence to that informant: “Had those recording devices been discovered, or the fact that the Task Force
been revealed, there would have been a substantial
risk of violence to the C.I.” Pet. App. 19a. Furthermore, although both cases involved the possibility of a
child’s presence in the home during a drug transaction, the Lane majority concluded that the drug transaction did not involve actual or threatened violence.
See Lane, 826 S.E.2d at 664.
Additionally, Mr. Norwood and Mr. Lane both have
two prior convictions. As in Norwood, the West Virginia Supreme Court concluded that one of Mr. Lane’s
prior convictions was a violent offense and one was
not. The majority in Lane, however, dismissed Mr.
Lane’s conviction for the violent felony of unlawful
wounding because “that conviction occurred twenty
years prior to the drug offense.” Id. In West Virginia,
however, “in the absence of any provision in the habitual criminal or recidivist statutes, the remoteness of
the prior conviction sought to be used in a recidivist
trial need not be considered.” State v. Jones, 420
20
S.E.2d 736, 739 (W. Va. 1992). “Common sense would
dictate that the age of a prior conviction should have
little bearing in a recidivist proceeding, when the underlying purpose of the statute is considered.” Id.
Thus, Mr. Norwood and Mr. Lane each have a conviction that involved either actual violence or the threat
of violence.
Nor did the West Virginia court reasonably distinguish Norwood from Lane. For example, the Norwood
majority relied on a case upholding a life sentence under the recidivist statute for three felony convictions
for delivery of crack cocaine—State ex rel. Daye v.
McBride, 658 S.E.2d 547 (W. Va. 2007)—that the majority in Lane rejected for having very limited application to the Lane case because Lane did not involve multiple convictions under the Uniform Controlled Substances Act and there was no constitutional proportionality clause challenge to the life sentence imposed
in Daye. Lane, 826 S.E.2d at 666.
The contradictory outcomes the West Virginia Supreme Court reached in Norwood and Lane accordingly lack a rational basis. The only genuine difference
upon which the West Virginia court based its opinion
was that Mr. Norwood’s third conviction involved heroin but Mr. Lane’s involved Oxycodone. The court
drew its distinction on this ground, but such a distinction is not rational considering the West Virginia legislature’s intent for Schedule I and Schedule II drugs
to be treated similarly, for sentencing and punishment
purposes. Indeed, the West Virginia court acknowledged as much in State v. Hoyle where, as discussed
above, it agreed that it had “arrived at two different
conclusions” in Norwood and Lane even though the
21
cases presented “nearly identical facts.” Hoyle, 836
S.E.2d at 832–33.
B. The West Virginia Supreme Court’s
Decision Denies Mr. Norwood Due Process
The Fourteenth Amendment of the Constitution
prohibits any state from “depriv[ing] any person of life,
liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. Such protected liberty interests “encompass freedom from bodily restraint and
punishment.” Ingraham v. Wright, 430 U.S. 651, 67374 (1977). Under this requirement, “the sentencing
process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.” Gardner v.
Florida, 430 U.S. 349, 358 (1977). “The defendant has
a legitimate interest in the character of the procedure
which leads to the imposition of sentence even if he
may have no right to object to a particular result in the
sentencing process.” Id. Further, “[i]f an individual is
successfully prosecuted as an habitual criminal, a
greater penalty than that attaching to the underlying
crime is imposed.” State v. Vance, 262 S.E.2d 423, 429
(W. Va. 1980). Especially relevant to this case, “courts
have required substantial due process protection in recidivist proceedings.” Id. (citations omitted). A determination of what process is due “requires consideration of three distinct factors: First, the private interest
that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest
through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards, and finally, the Government’s interest, including the function involved and the fiscal and adminis-
22
trative burdens that the additional substitute procedural requirement would entail.” Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
At issue here are all of the proceedings related to
Mr. Norwood’s recidivist sentencing, as the application of a life sentence would further deprive him of his
interest in his liberty. Prior to Mr. Norwood’s case, the
West Virginia Supreme Court had established precedent that defendants similarly situated to the defendant in State v. Lane would not have life recidivism sentences upheld. And Mr. Norwood was similarly situated to the defendant in Lane. Accordingly, when the
West Virginia court upheld Mr. Norwood’s life sentence, Mr. Norwood was deprived of due process in the
form of having the law accurately and fairly applied to
his case. Under the Matthews factors, Mr. Norwood’s
freedom from further imprisonment is indisputably a
liberty interest of utmost importance. Additionally, inaccurate and inconsistent application of a state’s law
carries a high risk of depriving a person such as Mr.
Norwood of such an important interest. Finally, accurate application of the law would not pose any significant burdens on the state but would instead serve only
to enhance the state’s legitimacy as a government institution that justly applies the law. Accordingly,
when the Supreme Court of Appeals of West Virginia
improperly applied existing law in deciding his case, it
violated Mr. Norwood’s Constitutional due process
rights.
In conclusion, the West Virginia court’s decision to
uphold a life sentence under the state’s recidivist statute violates Mr. Norwood’s constitutional rights under
the Equal Protection and Due Process Clause, where
23
the court treated similarly situated criminal defendants differently and incorrectly applied its own law.
C. The Decision Below Is Incorrect and
Unconstitutional Because It Circumvented
The West Virginia Legislature
The decision below further violates the constitution
because it is inconsistent with the directive of the West
Virginia legislature to treat Schedule I and Schedule
II drugs the same for sentencing purposes.
Despite the West Virginia criminal code’s requirement that Schedule I and Schedule II drugs be treated
the same for sentencing purposes, the court in Norwood made its own determination that the “delivery
and ultimate use of heroin carries with it an inherent
risk of violence to a person.” Pet. App. 19a; see W. Va.
Code § 60A-2-204(c), § 60A-2-206. The court emphasized the illicit nature of heroin: “From the moment of
its clandestine creation, heroin is illegal, and is a silent scourge that has saturated our State.” Pet. App.
19a–20a. In doing so, the Norwood court ignored the
legislature’s classification of the drugs and instead imposed its own views on the relative danger of heroin
and opioids.
Unlike the majority in Norwood, however, the West
Virginia legislature has found both drugs to have a
“high potential for abuse[.]” W. Va. Code § 60A-2-203
(setting forth Schedule I drug criteria); W. Va. Code §
60A-2-205 (setting forth Schedule II drug criteria). Additionally, in limiting the eligibility for expungement
of nonviolent felony offenses under West Virginia Code
§ 61-11-26(c), the legislature did not include violations
of § 60A-4-401(a) among the enumerated offenses excluded from the definition of “nonviolent felonies.”
24
Considering legislative intent is crucial when conducting a proportionality review of a recidivist sentence. See Wells-Yates v. People, 454 P.3d 191 (Colo.
2019) (holding that “in determining the gravity or seriousness of the triggering offense and the predicate
offenses, the court should consider any relevant legislative amendments enacted after the dates of those offenses, even if the amendments do not apply retroactively”); see also Melton v. People, 451 P.3d 415 (Colo.
2019) (reversing judgment because the court failed to
consider the relevant legislative amendments to the
drug laws and the habitual criminal statute). Therefore, the court below erred in disregarding the will of
its own legislature and affirming Mr. Norwood’s life
sentence.
25
CONCLUSION
The petition should be granted.
Respectfully submitted,
Anne Marie Lofaso
W EST V IRGINIA
U NIVERSITY
C OLLEGE OF L AW
U.S. S UPREME C OURT
L ITIGATION C LINIC
101 Law Center Dr.
Morgantown, WV 26056
Lawrence D. Rosenberg
Counsel of Record
J ONES D AY
51 Louisiana Ave., N.W.
Washington, DC 20001
(202) 879-7622
ldrosenberg@jonesday.com
Counsel for Petitioner
January 31, 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.