Disabling Able: Why The Virginia Supreme Court Must Address Recent Changes in Narcotics Distribution Law

Kevin R. Pettrey, George Mason University

Abstract

The Virginia General Assembly has proscribed distributing narcotics within the Commonwealth. In order to further deter this illegal activity, increased punishments for repeat offenders have been established. However, what a charging document must allege changed in 2009 but these technical requirements are not always complied with. Prior to 2009, Virginia Code § 18.2-248 only required that a conviction be a “second or subsequent conviction” in order to qualify a defendant for a heightened sentence. In 2009, the Virginia General Assembly passed HB 2362 which required charging documents to allege that a defendant was convicted of violating Virginia Code § 18.2-248 prior to the date on which the subsequent offense occurred.

Despite this legal change, not every commonwealth’s attorney’s office has changed the way it drafts indictments. Because indictments are being improperly drafted, defendants face heightened punishments outside of the law’s scope. These errors could lead to a person who is being convicted for the first time at the sentencing hearing receiving a heightened punishment as a recidivist. Until each commonwealth’s attorney’s office and all Virginia courts become familiar with the law’s new requirements there is potential for heightened punishments to be imposed outside of the law and in violation of basic due process.