House kills bill to toughen fentanyl-related crimes

A bill that would enforce harsher penalties for fentanyl-related offenses was killed in the Senate Judiciary Subcommittee.

HB 1455, introduced by Del. Timothy V. Anderson, R-Virginia Beach, would allow prosecutors to charge drug dealers with first-degree murder by poison for knowingly selling or distributing a substance that contains fentanyl.

The subcommittee on Wednesday voted 8-7 to indefinitely postpone the bill and requested that the crime commission conduct further study.

The bill passed the House 70-29 on Feb. 7 in a bipartisan vote after three readings.

The Senate read the bill for the first time on Feb. 8, and during a session on Feb. 9, Sen. Mark Obenshain, R-Rockingham, introduced a group of mothers and family members of victims of fentanyl poisoning.

“This group of fentanyl moms are coming to the halls of the Capital today to advocate for tougher laws to protect others, so that others aren’t going to have to walk the same path that they’ve had to walk,” Obenshain said.

Fentanyl is a synthetic opioid that was developed in 1959 to manage pain in cancer patients, according to the U.S. Drug Enforcement Administration. Two milligrams, which is the amount specified in the bill, is considered by the DEA to be a lethal dose of fentanyl.

“I think my draw toward fentanyl has been in my criminal practice and my law firm,” Anderson said. “It’s a big problem, and our current criminal justice laws don’t have the right tools for prosecutors to appropriately address what’s really happening.”

Fentanyl caused or contributed to 76.4% of all fatal overdoses in Virginia in 2021, according to the Virginia Department of Health Quarterly Drug Death Report.

The original bill included people who sell or distribute a substance they know or should know contains two milligrams or more of fentanyl. Del. Karrie Delaney, D-Fairfax, who is the Democratic whip, recommended striking “or should know” from the bill when it was still in the House. This amendment limited the scope of the bill to only include dealers who definitively know that they are distributing a substance containing fentanyl.

It was reported with the substitution from the Courts of Justice Subcommittee meeting on Feb. 3.

“I took that as a friendly amendment to try to bring some bi-partisan support for it, and we did,” Anderson said. “I didn’t have any bipartisan support until Del. Delaney came on board and made that amendment, and then she brought 20 or so of them [Democrats] over.”

During the subcommittee meeting, Sen. Joe Morrissey, D-Richmond, questioned the practicality of the amendment in courtroom situations.

“Isn’t that the problem with this bill?” Morrissey asked. “You would be proving in court what the distributor knew or didn’t know.”

Anderson countered that this would be a question for the prosecutor, and this bill would merely be a tool for them to use in trial.

There was also criticism that there are already legal mechanisms in place to prosecute drug dealers who distribute fentanyl.

There is a fundamentally negative attitude toward punishing drug offenses, Anderson added.

“This is really mostly college kids that are doing this,” he said. “They’re buying Adderall, mostly Adderall, and they have a prescription, they run out of it, they can’t get another prescription, they need it and they make a mistake and they buy dderall from a street dealer, they take it and they die. We’re not trying to punish them on the back-side.”

A significant number of high school and college students buy adderall and xanax from dark web drug markets and over social media where tainted drugs are sold, according to a DEA Drug Fact Sheet on counterfeit pills.

This bill comes amid a national Adderall shortage that was first announced by the U.S Food and Drug Administration on Oct. 12, 2022. There is not a sufficient supply to continue to meet U.S. market demand, according to the FDA website.

This law would be a tool to address what the drug dealer has done in a situation such as this, not to punish the drug taker, Anderson said.

“We’re not trying to put people addicted to drugs in jail either,” he said. “We’re not even trying to put regular drug dealers in jail for this … they can be charged under the current laws. This [bill] is for the unique folks that are happening now in Virginia that are knowingly selling counterfeit prescription drugs.”