Kyle Vass Published

W.Va. Prisons Data Show Significant Racial Disparity in Recidivist Life Sentencing

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In January 2019, Joshua Plante received a life sentence in Cabell County District court. The sentence came as a shock to him and his attorney, because, at the time, three-strike, or recidivist, life sentences were given to people whose record included a violent felony.

Courtenay Craig, who represents Plante, said none of his client’s charges were violent.

“No. 1, possession with intent to deliver crack cocaine. No. 2, prohibited person in possession of a firearm or sales of a firearm. And, No. 3 three was possession with intent to deliver, less than four grams of heroin.”

Craig said at the time his client was sentenced, the standard set by the West Virginia Supreme Court was that only violent felonies would be considered for recidivist life sentencing. Eventually, a series of West Virginia Supreme Court cases would determine that any felony involving heroin trafficking is dangerous enough to be considered a violent crime.

But, the WVSCOA decision to treat heroin possession with intent to deliver as a violent crime didn’t happen until after Plante was sentenced to life in prison.

“My client couldn’t have possibly known what the standard was at the time of his sentencing because the standard used to uphold his license wasn’t created until 10 months later.” Craig added, “My client’s being upheld to a standard by the West Virginia Supreme Court — to a standard that didn’t exist at the time of his sentencing.”

According to Craig, a double standard exists with life sentencing in the state. Around the same time Plante received his life sentence in circuit court, the West Virginia Supreme Court threw out a life sentence for a man from Wyoming County.

The differences between that man’s case and Plante’s? That man had a violent felony, Plante did not. That man was caught selling OxyContin while Plante was caught in possession of heroin. Finally, and most importantly, said Craig, that man is white. Plante is Black.

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Kyle Vass
Carmon Plante shows the outfit her son Joshua Plante was wearing when he was convicted of a drug related felony that prompted a Cabell County Circuit Court judge to sentence him to life in prison in Huntington, W.Va., Monday, Mar. 15, 2021.

Matthew Bova, a lawyer with the Center for Appellate Litigation in New York, said in an interview with West Virginia Public Broadcasting that there is discretion built into recidivist sentencing. “There are charging decisions that can be made that can skew and direct the case into one direction or the other.”

Bova said in cases where police officers, prosecutors and judges are overwhelmingly white, there’s racial disparity when it comes to charging and sentencing people of color.

“There is an absolutely natural reaction that someone is going to have when they’re looking at someone who is of a different race and they’re weighing issues of compassion, and mercy.”

Black men, on average, receive sentences that are 19.1% longer than white men in similar situations according to the U.S. Sentencing Commission.

And in West Virginia, there’s a significant racial disparity in recidivist life sentencing. While Black men make up less than two percent of the state’s population, they’ve made up 20 percent of the recidivist life sentences in West Virginia since 1979, according to data from the state Department of Corrections and Rehabilitation.

“It absolutely creates a world where people believe that the government is going after a particular group of people at a far higher rate than it is going after another group of people.”

Not long after Plante’s life sentence was upheld by the West Virginia Supreme Court, the state legislature passed a bill to change the recidivist life sentence statute in the state code.

A list of qualifying offenses was added to the statute. Instead of relying solely on the precedent set by the court where one of the three felonies had to be violent, the legislature’s list included drug possession over a certain amount.

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(Graph/Brookings Institute)
A 2015 analysis from the Brookings Institute shows a significant racial disparity in drug-related arrests and incarceration across the United States.

According to a report from the Brookings Institute, Black people are 6.5 times more likely to be incarcerated for drug related crimes than their white counterparts despite the fact that drug use is slightly higher among white people.

Bova said adding drug-related crimes to recidivist sentencing not only furthers racial disparities in the criminal justice system, it’s also contributed to communities of color losing faith in government institutions as a whole.

”You look at someone who has committed a rape, and that might be their first or second offense. And they may get, say, 10 years, whereas someone who has a third offense for a drug offense… they’re getting 20 years to life.” Bova added, “People are looking at that system and saying to themselves, this doesn’t make any sense.”

Carmon Plante said she’s still trying to make sense of her son’s life sentence.

“During court, there was someone who went before [the judge] who had his fourth felony. And the judge just told him, go ahead, go on back.”

Plante said despite her son’s receiving a life sentence in circuit court, she was hopeful that the West Virginia Supreme Court would recognize that her son didn’t have a violent felony on his record and would throw out his life sentence. But, the state’s highest court upheld his sentence.

“We’ve been fighting for almost three years. And there’s been cases so similar that we don’t understand how he gets one sentence, and somebody else gets another. And, it’s the exact same charges.”

“One case, it’s one answer. The right next case, it’s his death, you might as well say.” She added that her son is currently filing an appeal with the U.S. Supreme Court.

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Kyle Vass
A painting Joshua Plante made in prison for his mother during her battle with breast cancer hands in her living room in Huntington, W.Va., Monday, Mar. 15, 2021.

Jennifer Bundy, the public information officer for the West Virginia Supreme Court said, “the Justices are not aware of the race of the people involved; however, if a party has concerns that race was a factor to any error in their case, that would be an issue they could bring to the Court’s attention in the presentation of their case.”

Currently, there are no bills before the state legislature to amend or eliminate the state code’s recidivist clause.