Excessive Sentencing Project - West Virginia

Policies and rulings on lengthy imprisonment terms in West Virginia.

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  • West Virginia allows for parole. West Virginia does not have the death penalty. 
  • West Virginia has mandatory LWOP and discretionary JLWOP. See W. Va. Code § 61-2-2  (2012). 
  • West Virginia does not have a minimum age at which juveniles may be transferred to criminal court. 

State Constitution

W. Va. Const. Art. III, § 5 (2012): Excessive Bail Not Required

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Penalties shall be proportioned to the character and degree of the offence. No person shall be transported out of, or forced to leave the State for any offence committed within the same; nor shall any person, in any criminal case, be compelled to be a witness against himself, or be twice put in jeopardy of life or liberty for the same offence.

NOTE: Article III, Section 5 has an express proportionality priniciple, and is interpreted as the equivalent to the Eighth Amendment.

Sentencing Statutes

  • Sentencing Guidelines System – West Virginia does not have sentencing guidelines

  • Habitual Offender Statutes – W. Va. Code § 61-11-18 (2012). Punishment for second or third offense of felony.

    1. Except as provided by subsection (b) of this section, when any person is convicted of an offense and is subject to confinement in the state correctional facility therefor, and it is determined, as provided in section nineteen of this article, that such person had been before convicted in the United States of a crime punishable by confinement in a penitentiary, the court shall, if the sentence to be imposed is for a definite term of years, add five years to the time for which the person is or would be otherwise sentenced. Whenever in such case the court imposes an indeterminate sentence, the minimum term shall be twice the term of years otherwise provided for under such sentence.

    2. Notwithstanding the provisions of subsection (a) or (c) of this section or any other provision of this code to the contrary, when any person is convicted of first degree murder or second degree murder or a violation of section three, article eight-b of this chapter and it is determined, as provided in section nineteen of this article, that such person had been before convicted in this state of first degree murder, second degree murder or a violation of section three, article eight-b of said chapter or has been so convicted under any law of the United States or any other state for an offense which has the same elements as any offense described in this subsection, such person shall be punished by confinement in the state correctional facility for life and is not eligible for parole.

    3. When it is determined, as provided in section nineteen of this article, that such person shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the state correctional facility for life.

Case Law

General  

Generally, sentences “imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." State v. Sulick, 2012 W. Va. LEXIS 78, 25-26 (W. Va. 2012) (quoting State v. Goodnight, 169 W. Va. 366 (W. Va. 1982)); State v. Allen, 208 W. Va. 144, 152-155 (W. Va. 1999).

State Constitution & Proportionality 

Article III, Section 5 of the West Virginia Constitution contains an express proportionality principle, and is the counterpart to the Eighth Amendment. State v. Sulick, 2012 W. Va. LEXIS 78, 25-26 (W. Va. 2012) (citing State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (W. Va. 1980)); State v. Murrell, 201 W. Va. 648, 652 (W. Va. 1997).

Until the Supreme Court recognized the proportionality principle in Rummel v. Estelle, 445 U.S. 263 (1980), West Virginia’s Constitution provided broader protections than the Eighth Amendment. Wanstreet v. Bordenkircher, 166 W. Va. 523, 530-531 (W. Va. 1981).

A cruel and unusual punishment is one that “amounts to torture, or that is grossly excessive in proportion to the offense for which it is imposed, or that is inherently unfair, or that is unnecessarily degrading, or that is shocking or disgusting to people of reasonable sensitivity.” State ex rel. Pingley v. Coiner, 155 W. Va. 591, 609 (W. Va. 1972).

The concept of “evolving standards of decency” is essential to the proportionality principle. Wanstreet v. Bordenkircher, 166 W. Va. 523, 536 (W. Va. 1981). The concept of cruel and unusual punishment broadens over time as society becomes more humane. State v. Vance, 164 W. Va. 216, 231-232 (W. Va. 1980).

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The West Virginia Constitution’s proportionality principle does not apply to every sentence imposed by the courts. State v. Farr, 193 W. Va. 355, 357 (W. Va. 1995). "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Wanstreet v. Bordenkircher, 166 W. Va. 523 (W. Va. 1981); State v. Sulick, 2012 W. Va. LEXIS 78, 25-26 (W. Va. 2012); State v. Allen, 208 W. Va. 144, 156 (W. Va. 1999); State v. Murrell, 201 W. Va. 648, 652 (W. Va. 1997).

To determine whether a sentence violates the West Virginia Constitution, subjective and objective tests are used. The subjective test asks whether the sentence “shocks the conscience and offends fundamental notions of human dignity." State v. James, 227 W. Va. 407, 415 (W. Va. 2011) (quoting State v. Cooper, 172 W.Va. 266 (W. Va. 1983)). If the sentence is so shocking that it violates society’s sense of justice, the inquiry ends and the sentence is disproportionate. State v. Allen, 208 W. Va. 144, 156 (W. Va. 1999).

However, should the sentence pass the subjective test, the court must proceed to the objective test. State v. Allen, 208 W. Va. 144, 156 (W. Va. 1999). The objective test considers “the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction. State v. James, 227 W. Va. 407, 415 (W. Va. 2011) (quoting Wanstreet v. Bordenkircher, 166 W.Va. 523 (W. Va. 1981)).

To analyze a life recidivist sentence under Article III, Section 5, the court must view the punishment “from two distinct vantage points: first, the nature of the third offense and, second, the nature of the other convictions that support the recidivist sentence." Wanstreet v. Bordenkircher, 166 W. Va. 523, 533 (W. Va. 1981). Additionally, "for purposes of proportionality, the third felony is entitled to more scrutiny than the preceding felony convictions since it provides that ultimate nexus to the sentence." Id. at 534; State v. Housden, 184 W. Va. 171, 173-174 (W. Va. 1990).

The appropriateness of a life recidivist sentence under III, Section 5, will be analyzed as follows: “We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute.” State v. Housden, 184 W. Va. 171, 173-174 (W. Va. 1990) (citing State v. Beck, 167 W.Va. 830 (W. Va. 1981)); Wanstreet v. Bordenkircher, 166 W. Va. 523, 537 (W. Va. 1981).

The proportionality principle in Article III, Section 5 prevents the state from incarcerating juvenile status offenders in the same prison-like facilities as children convicted of crimes. Wanstreet v. Bordenkircher, 166 W. Va. 523, 530-531 (W. Va. 1981) (citing State ex rel. Harris v. Calendine, 160 W. Va. 172 (W. Va. 1977)). 

Leading Court Discussions of Graham and Miller 

In re M.J., 13-0104, 2013 WL 3184638 (W. Va. June 24, 2013) (Graham and Miller do not apply to non-LWOP cases.) 

State v. Redman, 13-0225, 2014 WL 1272553 (W. Va. Mar. 28, 2014) (Sentence of LWOP in West Virginia is discretionary and thus does not violate Miller.)