Virginia House panel defeats bill to shield overdose victims from prosecution

By: K. BURNELL EVANS; Richmond Times-Dispatch

A proposal that would have shielded overdose victims from criminal prosecution when someone sought medical help to save them was struck down Wednesday in a House subcommittee over fears the move could enable drug use.

The vote to kill the bill from Del. Betsy B. Carr, D-Richmond, followed a revision made at the request of Republican delegates not swayed by emotional testimony on Monday from a father who said the measure would save the lives of people such as his son.

Ted Henifin told the House Courts of Justice Criminal subcommittee that police charged his son with a felony the first time his wife summoned emergency help after finding him unresponsive in a garage. When it happened again last October, the couple made a difficult choice, and spent the longest night of their lives watching their son to make sure he was still breathing.

“I don’t think we would (call police) again,” said Henifin, of Hampton. “The complications of the legal system … just really, really make helping support recovery ... much more challenging.”

The bill would have added to protections already in place to protect those who report overdoses from being prosecuted. Neither measure prevents police or a commonwealth’s attorney from bringing charges, but instead provides what is known as an affirmative defense against prosecution.

Del. C. Todd Gilbert, R-Shenandoah, said Wednesday that although he was sympathetic to Carr’s intent, the bill, taken alongside bids to establish safe needle exchanges and expand access to medicine that reverses drug overdoses, went too far.

“I’m starting to feel like we’re doing everything we can to encourage it to continue,” he said, of substance abuse. “I just think cumulatively we are setting ourselves up for a big failure here.”

Supporters of Carr’s proposal flooded the meeting on Monday to encourage lawmakers not to perpetuate the view of drug abuse as a moral failing, but as a disease in need of treatment that cannot be provided through the criminal justice system.

Among them was John Shinholser, president of the Richmond area McShin recovery organization, who decried Wednesday’s vote as a hate crime that would result in deaths.

When Shinholser asked the crowd on Monday whether they would rather die or go to jail, more than a dozen people who came to lobby in support of the bill raised their hands.

“I personally probably go to 30 or 40 overdose funerals a year,” he said. “By criminalizing these cases, it’s a big hurdle for those seeking help.”

He found support in Capt. Michael Zohab of the Richmond Police Department, who oversees narcotics, and Richmond Commonwealth’s Attorney Michael Herring.

“I think it makes a lot of sense,” Herring said in an interview. “If someone is able to get to the phone and report that they need help they shouldn’t have to be thinking, ‘Will I get in trouble?’ “

The proposal would not apply in instances where a search warrant was being issued or protect an overdose victim from prosecution for crimes unrelated to an overdose.

Herring said he knew of occasions in which people had faced drug-related charges after an overdose in the city of Richmond, which has seen opioid-related fatalities triple between 2010 and 2015.

“I have heard and been involved in conversations with lawyers here who say the current statute is broken and needs to be fixed,” Herring said.

The number of people in Richmond who survived overdosing on heroin alone has increased nearly 300 percent in the past three years — from 88 in 2014 to 343 during the entirety of 2016, according to police.

The city is not alone. Virginia’s public health commissioner declared a state of emergency in November over the ballooning opioid crisis.

State health officials have projected that more than 1,250 people in Virginia will be found to have died of a drug overdose in 2016. Drug overdoses surpassed car crashes as the leading cause of unnatural deaths in 2013, and the numbers have only increased, thanks in large part to a surge in opioid abuse.

Those statistics did not persuade lawmakers to adopt what proponents argued is a public health response to a public health issue.

“We’ve been up here reflecting on this and I am sympathetic to the notion that we want to save lives,” Gilbert said. “I believe in being proactive about trying to solve problems and I believe in unintended consequences.”