Melissa Wilfong wants the dealer who sold the drugs that killed her son to be held accountable.

First responders found James Curtis dead inside a camper in Alleghany County. He died Oct. 20 at the age of 27 of a fentanyl overdose, his mother said.

“I know my kid made a bad choice to use drugs, but deep inside of me, it feels like someone killed him,” Wilfong said. “It just doesn’t feel like he died accidentally.”

For years, state lawmakers have tried to pass legislation that would make it easier for state prosecutors to go after drug dealers with a felony homicide charge when users die of an overdose. This year, the General Assembly got a bill onto the governor’s desk.

But Gov. Ralph Northam on Thursday vetoed HB 2528 out of concern that those struggling with addiction, and not just street dealers, could face harsh prison time.

“The disease of addiction has long devastated our communities,” Northam said in his veto message. “While I share the goal of addressing the opioid crisis and ensuring drug dealers are punished for supplying dangerous drugs, this bill goes beyond drug dealers and would punish individuals who are themselves struggling with addiction. The way to help individuals struggling with addiction is to ensure they receive proper treatment.”

The bill’s sponsor, Del. Tim Hugo, R-Fairfax, said in a statement a drug dealer who sells heroin laced with fentanyl “is no less a killer than if he had pointed a gun and pulled the trigger.”

New standard

Prosecutors said they needed this legislation because of a 2013 Virginia Court of Appeals opinion.

Kayla Beame purchased ecstasy pills from Timothy Woodward outside a store parking lot in Danville on Nov. 16, 2010.

A few hours later, Beame took some of the pills and went to sleep. The next day, someone else in the apartment saw Beame wasn’t breathing right, so he called 911. She was taken to the hospital. She died Nov. 18, 2010.

A trial court convicted Woodard of felony homicide, which is applied when someone kills a person by accident, but the death happens when the person also committed another felony. The sentence is five to 40 years in prison.

On appeal, Woodard’s lawyer argued the killing must occur close in time, place and have a causal connection to the felony, which is this case was selling the illegal drug in the parking lot hours before Beame ingested the pills.

The court agreed with Woodard’s argument and reversed the conviction.

“We have no way of getting the commercial dealer with this charge,” said Mike Doucette, executive director for the Virginia Association of Commonwealth’s Attorneys, which supported the legislation.

Building a consensus

For years, lawmakers hit snags regarding how to treat cases such as a boyfriend who purchased heroin and shared it with his girlfriend, who then died of an overdose.

The boyfriend was not the street dealer reaping profits from selling drugs, and they didn’t think the boyfriend should face the same charge or even go to prison at all. They also worried the boyfriend wouldn’t call for help for an overdose in progress.

This year the bill that passed with bipartisan support said a person would be guilty of felony homicide for selling or giving a Schedule I or II drug that killed someone, regardless of the time or place of the death.

It also stated that if someone gave a drug “only as an accommodation” — meaning with no intention of making a profit or getting the other person addicted — and the person died of an overdose, then the drug supplier would be charged with a lesser felony and face one to 10 years in prison and a $2,500 fine.

Northam’s proposed amendments took that a step further. If the dealer or the person providing drugs as an accommodation could prove in court they called for medical help and stayed on scene to meet with police, that person could be found not guilty or convicted of a lesser offense. The idea was to encourage people to call for help in the event of an overdose.

Doucette said Northam’s proposed changes weakened the bill too much. Legislators rejected them.

Sending a message

In recent years, as part of a get-tough campaign, 20 states have passed laws against people who supply drugs that lead to fatal overdoses, according to the Drug Policy Alliance, a nonprofit drug policy organization.

Prosecutors can still charge drug dealers with distribution, but Doucette says the felony homicide charge could lead to a stiffer sentence as a more appropriate consequence for someone dying.

Statistics on prosecutions involving overdoses in Virginia’s judicial system are not tracked by the state.

The Roanoke Times reviewed five years of felony homicide charges, online court records and news accounts of courtroom proceedings in fatal overdose cases. The review didn’t include other charges used in overdose cases.

There were at least six cases in which partners or friends who shared drugs were charged. An additional case involved someone convicted of selling drugs at a motel in Winchester, where a man died. In all of the cases, charges were reduced. Many still involved a prison sentence.

In many cases, the partner or the friend was charged, convicted and sentenced to serve prison time because the prosecutor or judge said they wanted to send a message.

In Floyd County last year, a man pleaded guilty to voluntary manslaughter for his girlfriend’s death. He bought heroin and they both injected it. The judge said someone needed to pay for her death and sentenced the boyfriend to serve 25 years in prison.

Wise County Commonwealth’s Attorney Chuck Slemp supported the legislation, and he said it would likely have been used in rare cases.

“You’ve got to go after the big fish,” Slemp said. “You’ve got to go after those who are truly profiting by selling poison and destroying our community. You want to take the truly culpable person off the streets.”

Slemp said his experience as a defense attorney and now prosecutor in handling cases involving drugs and addiction has changed his perspective. He said he’s trying to figure out ways the justice system can help people, when “to a certain degree, it’s not equipped for making people better, although maybe it should be.”

He said in Wise County there’s a robust drug court, a specialized diversion program that lets eligible nonviolent offenders avoid jail time if they undergo treatment. And a new program puts those convicted of low level crimes, such as drug offenses, to work in public service rather than behind bars.

Beyond prosecution

Melissa Wilfong realizes someone being charged in her son’s death isn’t going to stop the opioid epidemic.

She’s not a stranger to the damage done from addiction, and has seen it across generations in her family.

Wilfong said she was shocked when her son died last year. She said he was a drinker, and she wasn’t aware he was abusing drugs.

“I still get hit really hard with grief,” Wilfong said.

She wants more awareness spread in the community to reduce the stigma. She wants more outreach about resources available to help people suffering from addiction and easier access to treatment.

“I don’t want my kid to die in vain,” Wilfong said. “If I can save one more person’s life, one kid out there, that would be great.”

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