As fentanyl surges, Virginia lawmakers debate how far criminal penalties should go

Courtesy of Virginia Mercury

With drug overdoses now the leading cause of unnatural death in Virginia, Gov. Glenn Youngkin, lawmakers and experts agree solutions are needed to address the devastation caused by fentanyl, the drug involved in more than three-quarters of those deaths.

“Fentanyl is killing more Virginians than gun crimes and traffic accidents together,” said Sen. Ryan McDougle, R-4th, of Hanover, during a Senate committee meeting. “We need to tackle it.”

During the 2023 legislative session, the General Assembly has passed seven primarily Republican-backed bills to address the epidemic, including legislation that would increase charges for dealers who knowingly and intentionally distribute fentanyl and redefine the drug as a weapon of terrorism. An eighth bill has passed both chambers and is now headed to a conference committee to hammer out remaining differences.

Other bills now headed to Youngkin’s desk would expand the number of people allowed to administer naloxone for overdoses and create funding opportunities for treating opioid use disorder.

But differences remain between the parties when it comes to criminal penalties. Republicans say imposing harsher penalties for drug dealers would act as a deterrent. Democrats, however, while backing some measures to increase punishments related to fentanyl distribution, are wary that what some describe as “overcriminalization” could keep people from getting help.

“Every study I’ve ever seen says that jacking up consequences typically has very little to do with deterring or preventing crime,” said Sen. Scott Surovell, D-36th, who represents parts of Fairfax and Prince William counties, during one committee hearing. “I just don’t see this as being a solution to the problem.”

The impact of fentanyl in Virginia

More than 7,300 fatal fentanyl overdoses occurred in the state from 2013 to 2021, according to the Virginia Department of Health.

“Fentanyl is extremely lethal,” said Rosie Hobron, a statewide forensic epidemiologist with VDH. “Very tiny amounts can be an overdose or fatal overdose.”

Fatal fentanyl overdoses began rising in Virginia around 2013, with a huge spike seen across the state in 2020, coinciding with the start of the COVID-19 pandemic. In 2021, VDH found fentanyl was involved in 76.4% of all drug overdose deaths.

The actual overdose numbers are likely higher because drug screenings can be limited in their ability to detect certain substances and aren’t accessible in many small hospitals, said Dr. Christopher Holstege, chief of the medical toxicology department at the University of Virginia and director of the Blue Ridge Poison Control Center.

“Some of the small hospitals, critical access hospitals just can’t do detection of these agents unless someone dies,” Holstege said.

Another concern is the rise of counterfeit pills that look identical to pharmaceutical drugs like Oxycodone, Adderall or Xanax but actually contain fentanyl, Hobron said.

Savannah Ford, a former addict who now works as a peer support recovery specialist, said her addiction began by taking Adderall prescribed by her doctor. She said she turned to street dealers for the drug after she began taking more than six times the legal limit each day.

While she never tested the Adderall she got from dealers, she said it probably “contained meth and who knows what else.” Tests of Percocet she was taking showed it was laced with fentanyl.

Recent laboratory testing by the U.S. Drug Enforcement Agency found that six out of 10 fentanyl-laced fake prescription pills now contain a potentially lethal dose of fentanyl.

“It’s a sad reality amongst people who are in active addiction that I’ve heard some people say, ‘So and so [overdosed], it must be good stuff,’” Ford said. “It’s sad the way that a distorted and diseased mind thinks.”

Criminal penalties

The rising numbers of overdoses in Virginia spurred debate this session over how criminal penalties should be used to try to drive down cases.

Under nearly identical legislation from Sen. Bryce Reeves, R-17th, of Fredericksburg, and Del. Scott Wyatt, R-97th, of Hanover, any substance containing a detectable amount of fentanyl would be classified as a weapon of terrorism, and any person who intentionally manufactures or distributes it would be guilty of a Class 4 felony, punishable by two to 10 years in prison and a fine of up to $100,000. That charge would be in addition to the felony charge of distributing a Schedule I or II drug, such as fentanyl, which carries a five- to 40-year prison sentence.

Fentanyl usage authorized by the Drug Control Act, such as in hospitals, would not be affected.

The legislation was brought forward by Attorney General Jason Miyares’ office as “another tool that prosecutors can use to try and combat this particular drug,” said a spokesperson with the office during a House subcommittee meeting.

Both bills narrowly made it out of the Republican-controlled House on a party-line vote and passed the Senate with bipartisan support, although negotiations over a remaining difference continue.

Senate Democrats in committee agreed there should be a greater punishment for dealers who know their drugs contain fentanyl and sell it anyways.

“It’s a drug that can kill you, and we want to raise the punishment because it’s more than just selling something else,” said Sen. John Edwards, D-21st, of Roanoke.

Victor McKenzie, executive director of the Substance Abuse and Recovery Alliance, said he’s concerned the bill could still “have unintended consequences of punishing” addicts who unknowingly share fentanyl-laced drugs with one another.

But Reeves emphasized during committee that persons who unknowingly give out fentanyl-containing substances wouldn’t be prosecuted under the weapons of terrorism legislation, and a “higher level of evidence” would be needed to determine if the dealer was aware of the fentanyl.

Voicing similar concerns, Senate Democrats balked at other bills, including two backed by the Youngkin administration, that would have charged those distributing drugs with felony homicide if their drugs led to a fatal overdose, regardless of whether or not it was accidental.

Those bills raised concerns among the party, Edwards said, because members thought it went “way too far” to charge people who distribute drugs without knowing they contain fentanyl and accidentally play a part in a fatal overdose with murder.

For the legislation moving forward, expansion of felony charges may increase the amount of bed space needed in prisons and jails across the commonwealth, according to the Virginia Department of Planning and Budget.

Those increases could come as the Virginia Department of Corrections continues to face staffing vacancies linked to the COVID-19 pandemic. VADOC spokesperson Carla Lemons said the agency currently has a 22% vacancy rate among full-time positions.

There were 332 drug overdoses reported among VADOC inmates between 2016 and 2021, of which 24 resulted in death, according to a report from the agency. A different report from 2017 found more than 60% of VADOC inmates with a history of testing positive for opiates were re-arrested and 26% were re-incarcerated within three years of their release.

Expanding naloxone use, new state funding

Republicans and Democrats showed greater agreement on measures aimed at beefing up resources to combat opioid use and overdoses, passing a range of bills in both chambers unanimously.

Identical bills from Sen. Todd Pillion, R-40th, of Abington, and Del. Mike Cherry, R-66th, of Colonial Heights would add VADOC employees to the list of people allowed to possess and administer naloxone or other drugs used for overdose reversal. Another bill from Pillion would go even further by allowing anyone to administer naloxone under certain conditions and ordering the development of a statewide naloxone plan.

Other bills from Pillion, Sen. Barbara Favola, D-31st, of Arlington, and Del. Carrie Coyner, R-62nd, of Chesterfield, would establish two statewide funds to be used for efforts to treat opioid use disorder and develop addiction recovery and substance use disorder treatment programs in jails.

All of the legislation passed by the General Assembly will now go to Youngkin for review.

Opioid addiction “is a problem with the people consuming the substances. Not saying that they are the problem, but they have a problem,” Ford said. “And now we have a solution, which is recovery.”