All Hat, No Cattle

Governor Glenn Youngkin. Photo Credit: Associated Press

by Dick Hall-Sizemore

In Texas, the phrase, “all hat, no cattle” refers to someone who is all talk with little substance. Governor Glenn Youngkin is in the running for one of those hats.

The latest “Team Youngkin” fund-raising scare e-mail deals with fentanyl.

It starts off by recounting the number of fatal overdoses in Virginia attributable to fentanyl. That is why, the Governor says, “I didn’t hesitate when Governor Greg Abbott asked for additional resources to assist in critical border security efforts in Texas. I deployed the Virginia National Guard, and 100 brave Virginians answered the call to serve and protect our Commonwealth by going to Texas and joining the mission to stop fentanyl from flowing unabated into America.”

It is closer to home that Youngkin emphasizes the real problem. “Unfortunately, our efforts to punish the criminals who sell deadly fentanyl in our neighborhoods have been blocked by the far-left in control of the Virginia Senate.” He is referring to the Senate killing his legislation (SB 1490) that would have made anyone distributing a substance containing more than two milligrams of fentanyl, without the person obtaining the substance knowing that it contained fentanyl, guilty of attempted first-degree murder. If someone died from using that substance, the distributor would be guilty of first-degree murder.

On their face, these actions may sound reasonable. However, the details tell a different story.

Source of Fentanyl

The Governor is correct in that most fentanyl is coming into the United States from Mexico. Presumably, in sending Virginia National Guard troops to Texas to help out, Governor Youngkin agrees with Texas Governor Abbot, who claims, “President Biden’s open-border policies have paved the way for … deadly drugs like fentanyl to pour into our communities.”

However, there is evidence that illegal immigrants are not the primary source of the fentanyl. According to recent analysis by the Brookings Institution, “the vast majority of fentanyl enters the United States through legal ports of entry.” Specifically, “In 2022, Border Patrol agents who were not at a port of entry accounted for just 9% of fentanyl seizures.”

And who is bringing in this fentanyl? “Mexican cartels intensively hire U.S. citizens to smuggle drugs across the border because U.S. citizens generate less suspicion and are often subject to less inspection security than foreign nationals.” In 2022, 88% of fentanyl trafficking convictions were of U.S. citizens. Only 0.02% of people arrested by the Border Patrol crossing illegally into the U.S. possessed any fentanyl. Furthermore, the report documents how “pharmacies” set up in Mexico by the cartels can mail illegal pills to U.S. residents. There are also other means of getting fentanyl into the U.S., such as using drones.

It is safe to say that Youngkin spending $3.1 million to send 100 Virginia National Guard troops to Texas for two weeks had no effect on the flow of fentanyl into Virginia.

Distribution Defined as Murder

The legislation proposed by the governor would have little substantive effect. Although the governor implies that the people who distribute fentanyl in “our neighborhoods” are unpunishable, there has long been a statute on the books that carries a significant penalty for anyone convicted of distributing fentanyl.

The legislation would have dealt with anyone who distributes a substance that he “knows or should know” contains a detectable amount of fentanyl to another person without that person’s knowing that it contains fentanyl. If the distribution results in the death of the other person from his use of the substance containing fentanyl, the person who distributed it would be guilty of first-degree murder. If death did not result, the person doing the distributing would be guilty of attempted first-degree murder. (Technically, the bill ties into an existing statute that makes killing someone by the use of poison a first-degree murder.)

Currently, the manufacture, sale, or distribution of a Schedule I or II drug, such as fentanyl, is a felony punishable with a sentence in prison of 5 to 40 years (Sec. 18.2-248). First-degree murder is a Class 2 felony, punishable by 20 years to life (Sec. 18.2-10 and Sec. 18.2-32). Attempted first-degree murder is a Class 4 felony punishable by 2-10 years (Sec. 18.2-10 and 18.2-26).

In summary, under the governor’s proposal, if a person died from taking a substance containing fentanyl, the person who gave or sold it to him would be subject to a penalty of 20 years to life, as opposed to the current penalty of 5 to 40 years for distribution of a Schedule I or II substance. One would be hard put to credibly argue that someone intent on committing an offense now subject to a 40-year sentence would be deterred by an increase of the penalty to a possible life sentence.

If the person taking the substance containing fentanyl “merely” had a bad reaction and did not die, the governor’s proposal, paradoxically. contains a lighter sentence of 2 to 10 years, as opposed to the 5 to 40 years for distribution of a controlled substance. A good prosecutor in such a case would go with a charge under the current law. In addition to the possible higher sentence for distribution, for attempted murder, the prosecutor would have to prove intent, which would probably be difficult in these types of cases. (See the Supreme Court of Virginia opinion in Baldwin v Commonwealth.) A good defense attorney, on the other hand, would use the governor’s proposal as a plea bargain.

Opposition to the bill came primarily from folks who work in substance abuse prevention and treatment. Sen. Jennifer Boysko (D-Fairfax) related that she had worked closely with the Virginia Addiction and Recovery Council, which is comprised primarily of professionals in the field, and that group is strongly against increasing criminal penalties for substance abuse. That objection missed the thrust of the bill, as Sen. Jill Vogel (R-Fauquier), patron of the bill, pointed out. The bill would not have increased penalties for users of illegal drugs, but, rather, on those distributing illegal drugs; in this case, fentanyl.

Others claimed that most of those selling drugs on the street were “penny ante” dealers, with some just trying to support their own habits, who really did not know what was contained in what they were selling. The fentanyl would have been infused into the pills further up the distribution chain. Therefore, it seemed excessive to subject these folks to a life sentence. These objections missed the mark, as well. Under the proposal, someone distributing the substance containing fentanyl would be guilty of first-degree murder or attempted first-degree murder only if he knew or should have known that it contained fentanyl. If the “penny ante” dealers did not know that fentanyl was included in what they were selling, they would not be subject to the harsher penalty.

That provision is another reason why the governor’s proposal would be largely ineffective. In the case of a fatal fentanyl overdose, if the police were able to identify the person who gave the victim the substance, a defense would likely be, “I didn’t know the stuff had fentanyl! The guy I got it from told me it was Percocet (or whatever).” The prosecutor would bear the burden of proving that the distributor knew or should have known that there was fentanyl. If most of the distributors are truly “penny ante” dealers, that would likely be difficult to prove.

There was little debate among the members and the committee killed the bill on a partisan 9-6 vote.

There was a companion bill in the House (HB 1455). That one got reported out of committee and passed by the House, but not before it was amended to strike out the phrase “or should know” in reference to the distributor’s level of knowledge regarding the presence of fentanyl. Thus, the bill was narrower in scope. In the words of Del. Tim Anderson (R-Virginia Beach), its sponsor, it was aimed at those dealers who intentionally inject fentanyl into pills and then pass them off as Adderall to unsuspecting college students.

When the House bill got to the Senate committee, there was much more debate.  Sen. Joe Morrissey (D-Petersburg) asked how a dealer would know that there is fentanyl present. Del. Anderson replied that could be a defense, but there are distributors who purposely put fentanyl in pills and sell them as something else and those are the people that the bill was targeting. Sen. Morrissey replied that was the problem with the bill—proving what the distributor knew. Del. Anderson acknowledged that issue and replied that it was “just another tool for the prosecutor.”

Del. Chap Petersen (D-Fairfax) pointed out that the legislature was also considering, and the Senate had approved, legislation classifying substances containing detectable amounts of fentanyl, except as authorized in the Drug Control Act, as weapons of terrorism and made it a Class 4 felony to distribute such substances. (See HB 1682 and SB 1188, passed in the 2023 Session.) He asked about the interplay of that legislation with Anderson’s proposed bill. “Aren’t we just criminalizing the same action over and over?” Anderson tried to draw a distinction, but Peterson was not satisfied that there was a clear distinction.

Somewhat along the same lines, Sen. Jennifer McClellan (D-Richmond) asked why the current statute designating murder by poison as first-degree could not be used. Why was the proposed bill needed? Anderson replied that a court might be willing to consider fentanyl a poison, but “poison” was not defined in the context of the existing statute and the proposed legislation provided clarification.

To summarize, Governor Youngkin sent Virginia National Guard troops to Texas to help stop fentanyl from being brought in by illegal immigrants when the vast majority of fentanyl is brought in from Mexico by American citizens. He then proposed legislation that was not needed. There is already a stiff penalty on the books for distribution of Schedule I or II substances and the penalties proposed in the governor’s bill under one scenario would not have provided any deterrence and, under another scenario, would have been lower than what is in current law.

Furthermore, as originally drafted, the legislation included a ready defense for anyone charged under it, with the prosecutor having to prove that the distributor knew or should have known the fentanyl was in the pill. The only advantage of the bill was a political one — to call the distribution of fentanyl to unsuspecting customers murder. Finally, contrary to the governor’s castigation of Senate Democrats blocking efforts to punish distributors of fentanyl, the Senate overwhelmingly (38-2) approved legislation that singled out the distribution of fentanyl as a specific offense. It was just not the bill the governor preferred.

Just as with the abortion issue, Youngkin has taken actions and made proposals that sound tough, but, upon inspection, would have little practical effect, all while making misleading accusations. All hat, no cattle.

My Soapbox

Watching the earlier video of the Senate Judiciary consideration of the Senate bill, I was annoyed by two aspects, both of which must exasperate members of the general public attending the meetings or watching them through a live feed.  First, there were a lot of empty chairs behind the long desks where the members sit. Unlike the House, the Senate allows proxy voting. Therefore, although there may have been only six or seven Senators present, the votes on bills would usually total 15, the full membership of the committee. I understand that legislators sometimes need to leave so as to present one of their bills before another committee that is meeting at the same time. However, another big reason for the absences is that many members are members of two (or more) committees that are meeting at the same time. Therefore, they need to shuffle between committees. That situation could be significantly mitigated, if not eliminated, by better scheduling and more coordination of appointments to committees.

Second, there was very little discussion of the Senate bill by the members. The only member to voice objections was Sen. Boysko, whose objection was not relevant to the bill, as was pointed out earlier in this article. (Indirectly, Sen. Scott Surovell (D-Fairfax) had made his objections known. During the discussion of the bill considered immediately before the fentanyl bill, he had explained that he was voting against it because it increased the penalty for an existing offense and he had concluded that increasing criminal penalties was not effective.) It seems to me that, if legislators are going to oppose a bill, especially one proposed by the governor on a major issue such as fentanyl, they owe it to the public to explain why they are voting against the bill. Of course, many of those recorded as voting “no” were not present to provide any explanation.