CONCORD — Leaders in the substance abuse recovery field warned state representatives Wednesday that mandatory minimum prison terms for those who import, sell or use fentanyl will only worsen the state’s opioid epidemic.
On Wednesday, opponents turned out in force, aware that the public hearings may be the final chance to speak on the matter and that Gov. Chris Sununu has already endorsed two of the bills.
Gray Somers, executive director with the Addiction Recovery Coalition in Milford, said New Hampshire policymakers should have learned their lesson from minimum mandatory sentences for the sale of crack cocaine during the 1980s.
Those tougher sentences did not reduce illegal drug sales, but they did lead to prison overcrowding, Somers said.
“This would inflict further harm on those already suffering the most from this epidemic,” Somers said. “This would lead to the incarceration of citizens who don’t pose a threat to our state.”
Two weeks ago, at the urging of Senate President Jeb Bradley, R-Wolfeboro, the Senate approved three measures that would create new minimum prison terms regarding fentanyl sales:
Intent to Distribute (SB 316): A five-year minimum for importing any quantity of the drug into the state that would permit seizure of a car used to carry out a drug distribution deal.
Death of Another (SB 414): A 10-year prison term would result for anyone selling fentanyl that resulted in the death of someone else.
Possession Crimes (SB 415): Someone caught with at least five grams of fentanyl would face at least 3½ years in state prison and that would go up to a seven-year minimum for possession of 28 grams.
Several opponents of the bills at the House Criminal Justice and Public Safety Committee hearing Wednesday said rather than going after large fentanyl dealers from outside the state, these bills could target recreational users and those who share drugs with friends.
John Burns, executive director of the SOS Recovery Community Organization in Dover, Rochester and Hampton and a substance abuse survivor himself, said many fentanyl users consume “4 to 5 grams” a day, enough to get them incarcerated for 42 months under the legislation.
“All this could do is increase overdose deaths and put more people in prison,” Burns said.
Sen. Daryl Abbas, R-Salem, the chief author of all three bills, said more than 80% of the roughly 400 who die annually from drug overdoses have taken fentanyl, much of it coming over the nation’s southern border.
Sponsor says he’s lost two friends to overdoses
Abbas, a criminal defense lawyer, said creating the 10-year minimum for selling a drug resulting in death would be a deterrent.
“They are giving someone an illegal drug that has a high propensity for leading to death,” Abbas said.
“I am sure after the first person gets the mandatory term, it will be well-known in the criminal underworld.”
Abbas said he lost two good friends to drug overdoses and the sellers of those drugs faced only a distribution charge.
“I think they belong in jail and not for a little while,” Abbas said.
The New Hampshire State Police major crimes unit and the New Hampshire Association of Chiefs of Police also support the measures.
Dominic Curiel, a second-year law student at the University of New Hampshire Franklin Pierce School of Law, urged the House to add “knowingly” to the crime of intent to distribute as that would confirm the actor’s criminal intent.
Ted Lothstein of Concord with the New Hampshire Association of Criminal Defense Lawyers said all these bills strip from judges the discretion to hand out proper punishments and give the power to prosecutors looking to pad conviction rates.
“Prosecutors tend to prefer low-hanging fruit. Dispense and distribute merely means to give it to someone else. Good people who stay around after someone overdoses will get the minimum mandatory and not the bad person who flees the scene,” Lothstein said.
Jake Berry, vice president of New Futures, said the state’s efforts to battle the epidemic by expanding the Doorways Program of treatment and greater use of the anti-overdose drug Narcan have lowered the state’s opioid overdose death rate from the nation’s third-highest in 2016 to 22nd-highest in 2021, the most recent year for comparative data.
“Simply put, the data shows that mandatory minimums don’t work; they don’t save lives, they don’t reduce suffering, they do increase incarceration and lead to greater rates of racial disparity,” Berry said.
Devon Chaffee, executive director of the liberal Americans Civil Liberties Union of New Hampshire pointed out the conservative House Republican Alliance and Americans for Prosperity groups also oppose mandatory minimum prison laws.
“These bills together represent a significant shift in how New Hampshire goes about administering criminal justice in our system,” Chaffee said.