The Connection

    Possession of pill presses, like these, could be made illegal in Virginia to stem manufacture of controlled substances
  

Virginia’s General Assembly, which convened on Jan. 10, for a 60-day ‘long session’, is considering several fentanyl related bills to address the significant rise in synthetic opioid overdose deaths among Virginians. Fentanyl is now Virginia’s deadliest killer.

Legislators agree about the necessity to address the fentanyl crisis. But they are of two schools of thought on the best approach. One group looks to discourage manufacture, distribution, and use by managing mandatory sentencing and codifying new crimes, including felony homicide; to use severe penalties as deterrents. Their view is that those who could consider dealing drugs for profit, and those accommodating user-dealers, both need to understand the severe risk linked to getting caught and convicted.

The opposing view seeks to treat drug use as a mental health and rely on education and addiction treatment as the principle means of turning potential users away from illegal drugs. These members suggest that the felony penalties already in Virginia’s Code have not been effective in preventing the rise in fentanyl and other opioid use; signifying that a different approach is needed.

Both groups seek to break the illegal drug pipeline and support combating criminal drug networks. 

In Virginia’s Senate, fentanyl bills are heard in the Courts of Justice Committee, chaired by northern Virginia Senator Scot Surovell (D- District 34). The Committee heard four fentanyl bills, with similar provisions. SB 602, sponsored by Senator John McGuire (R-District 10) sought to eliminate consideration of the defense that, any time delay between sale or distribution of illegal drugs and a user’s death, mitigates culpability. It would define a person guilty of felony homicide, a second degree murder punishable by confinement of not less than five nor more than 40 years. This if the underlying felonious act that resulted in the killing of another involved the manufacture, sale, gift, or distribution of a Schedule I or II controlled substance to another person. The wording of McGuire’s bill closely matched SB 52 introduced by Senator Ryan McDougle (R-26). Therefore McGuire’s bill was ‘rolled into” McDougle’s. The Committee then voted to ‘pass by indefinitely’ the combined bill, 8-yes, 7-no, after discussion of the dubious effectiveness of creating more severe penalties. 

SB 367, introduced by Senator Bill DeSteph ( R- District 20) initially also sought to increase penalties and minimum mandatory fines for manufacture, sales, gifting, or distributing fentanyl, heroin or related controlled substances. In addition, his bill sought to involve the Office of the Chief Medical Examiner in investigating probable felony homicide overdose deaths. And finally the bill sought to create a task force to study ways to combat illegal manufacturing, importation, and distribution of fentanyl, heroin, and other controlled substances. His bill was amended in committee discussion, eliminating its penalty and investigation sections and leaving only its task force establishment language. DeSteph’s bill has since passed the full Senate by unanimous vote in its amended form and will move to consideration by the House.

The fourth Senate fentanyl bill, SB 469, introduced by Sen. Mark Obenshain (R-2), targets manufacturing of adulterated or misbranded drugs. The bill sets penalties for possessing, purchasing, selling, and manufacturing counterfeit controlled substances; makes it illegal to possess a pill press; and sets mandatory sentencing for any person manufacturing fentanyl in the presence of a child. That bill has also progressed through the full Senate, passing 38-yes, 2-no.

In the House, three fentanyl bills are introduced. HB 450, sponsored by Del. Chris Obenshain (R-41) and HB 685, sponsored by Delegate Jay Leftwich (R-90) are both fentanyl manufacturing fentanyl mandatory minimum sentencing bills. Neither has moved from their assigned Courts of Justice Committee and are not scheduled for committee hearing.

The third bill, HJ 41, introduced by Del. Kannan Srinivasan (D-26) sought to establish a study by the Joint Commission on Health Care into policy solutions to the Commonwealth’s fentanyl crisis. This bill has passed through the Rules Committee unanimously and been assigned to the Committee on Appropriations for further review. In the Appropriations Subcommittee the bill was met with a good reception, but was tabled due to lack of sufficient resources in the Joint Commission to add the study to its work.

The remaining two bills, SB 367 and SB 469 will cross over to the House. SB 367 is likely to face the same fate of limited study resources in its heard in the House committees, as did it’s House study companion bill. Therefore we can predict that only SB 469’s fentanyl manufacturing prohibitions are likely to make it to the Governor’s desk for signature this session. Although all agree to the severity of the fentanyl problem, this highlights the harsh reality of the State’s limited resources within the Commonwealth’s award winning Joint Legislative Audit & Review Commission (JLARC). 

“The Joint Legislative Audit and Review Commission (JLARC) conducts program evaluation, policy analysis, and oversight of state agencies on behalf of the Virginia General Assembly. The duties of the Commission are authorized by the Code of Virginia.” For more on JLARC studies see: https://jlarc.virginia.gov/about.asp