Missouri's statutory sentencing enhancements for prior and persistent drug offenders do not appropriately punish the different types of drug dealers. You may think, "Who cares? All drug dealers belong in prison for as long as we can keep them there". If that is your position, the 8th Amendment would like to have a word with you. Also, go read this Riverfront Times article posted last week about this very topic and then come back. It is a "must read" if you are interested in how these statutes affect real people in the real world.
For the rest of you, here is the crux. The Missouri statutes that enhance sentences for prior and persistent drug offenders establish a one-size-fits-all punishment scheme that has the tendency to treat small time drug users selling to support their own habit like big time drug traffickers moving product around the state. To be clear, no one is saying dealing or manufacturing drugs is okay. But, not all drug dealers are equally culpable and should not therefore be punished as if they are.
First, you must understand just exactly who is considered a prior and/or persistent drug offender?
Under RSMo. 195.275, you are a prior drug offender if you have previously pleaded guilty to or have been found guilty of any felony offense relating to controlled substances in any basically any state, federal or territorial jurisdiction within the United States. You are a persistent drug offender if this has happened more than once. The State would be required to prove your status as a prior and/or persistent offender in any future prosecutions, but this is usually easily done by submitting a certified copy of the court record from your previous case.
Once a "persistent drug offender", how does that affect someone's new drug distribution charge?
Once classified as a persistent offender under RSMo. 195.275, you will now face an enhanced punishment under RSMo. 195.291.
- RSMo. 195.291
The portion of this statute really at issue here and in the RFT article above, is the portion that reads "without probation or parole" or WOPP. If you have two or more prior drug convictions or findings of guilt, not only will you be sentenced as a Class A Felon on your new case - carrying a minimum sentence of 10 years and a maximum of life - but you will serve every day of that sentence.
Why does the WOPP provision matter so much?
Before you can understand the significance of the WOPP portion of RSMo. 195.291, you must understand how the Department of Corrections (DOC) calculates parole eligibility. The date on which you are eligible for parole depends many of factors. Two major factors, however are 1.) the type of crime for which you were sentenced and 2.) how many times you have been committed to prison (often referred to as your "commitment count").
Typically, the percentage of a your sentence you will be required to serve before being eligible for parole on a drug charge is very, very low. Additionally, the DOC does not factor in commitment counts in determining parole eligibility for drug offenders. However, once you are sentenced under the WOPP provision of 195.291, you will serve every day of your sentence.
For Example:
The following is a very simplified example of how the WOPP portion of this statute has the tendency to function unfairly against small time users:
Joe was convicted of two counts of possession of a controlled substance in 2008. He had one xanax and and three oxycodone pills without a prescription. In 2013, he had a prescription for vicodin but was busted selling some of his left over pills to an undercover cop. Joe is a "persistent offender" and under RSMo. 195.291 now technically faces 10 to 30 years, or life in prison without the possibility of parole.
Bill was convicted of selling a substantial amount methamphetamine in 2010. In 2014, he was busted again for manufacturing meth with the intent to sell it. He also faces 10 to 30 years, or life in prison, but as a "prior offender", he has the possibility of parole.
Even if Joe is sentenced to 10 years, and Bill is sentenced to 20 years, Joe will serve more actual time in prison because he is not eligible for parole. It's not even close. Bill could be out in three maybe four years while Joe serves the whole 10.
While the example above is very simplistic, it underscores the importance of judging the culpability of a drug dealer by more than just the number of prior drug offenses they have. The WOPP provision of RSMo. 195.291 too easily functions in a way that incarcerates small time drug users selling to support their addiction even longer than state-wide drug magnates.
The Glaesman Law Firm, LLC is a full service criminal defense law firm located at 820 S. Main St. Suite 208, St. Charles, Missouri 63301. If you or a loved one has been charged with a crime or is facing a probation violation hearing, call them right away to discuss your options.
