Drug Crime and Punishment: The War on Fentanyl

14 hours ago

Concord Lieutenant John Thomas has no sympathy for certain drug dealers.

“If you are providing the drug that kills that person, it’s just as if you’re sticking a knife in that person or shooting that person. You’re ending a life. You knew what you were doing, going into it,” Thomas said on The Exchange.

And with fentanyl on the streets, those lethal incidents have become all too common. New Hampshire is among the top four states in the nation for overdose deaths, according to the CDC.

For N.H.  Attorney General Joseph Foster, fentanyl was a tipping point, prompting him to put to use a “death-resulting” statute that allows state and county prosecutors to treat overdose deaths as crime scenes and seek tougher penalties for drug dealers who sell lethal doses.

“We hear about the heroin epidemic in New Hampshire. We don’t have a heroin epidemic any more. Of the almost 500 deaths we had last year,  I think less than 10 were heroin only.  But fentanyl was part of the super majority of the deaths. Fentanyl is about 50 times stronger than heroin. Three or four grains of salt-sized fentanyl can actually cause a death. It is effectively selling poison.”

David Rothstein, an attorney with NH Public Defender, says death-resulting cases have spiked – more in the last year than in his entire career. These are high-stakes cases because of the severe penalties, sometimes leading to life in prison, he said.

“But the question is who are we really catching here and who are we giving potential life sentences?" Rothstein asks. “Are we catching the people who are making it their business to sell drugs or are we catching people who are addicts and who are selling as an incident to their addiction?”

Thomas also makes that distinction.

“You have the individual that’s selling for clear profit, pumping the poison into the state. The book has to be thrown at those individuals. All they’re doing is spreading death and ill will to families. The user has to be treated differently.”

Most often, he said, police arrive at the scene of an overdose death to find low-level dealers who are peddling drugs to support their own habits.

“The higher rollers, the dealers, those are the cases that you’ve really got to put the time and effort into. And you’ve got to be able to build a case to prove that they are your dealers and not the user.”

But for Dean Lemire, this is entirely the wrong direction.  Lemire is in recovery from heroin addiction and says the state should be spending its resources on prevention, treatment, and recovery programs. He says most dealers are, in fact, addicts.

“We are in a war. This is a war. And it’s chaos. And I understand the impulse to want to exact justice for one incident in which somebody died in a war. I get that. I have a three-year-old daughter.  If somebody knowingly gave her a poison that ended up killing her, I would want to mete out that justice myself. But if we’re looking at this as a strategy to create better outcomes, we have to look at it differently,” Lemire said.

He sees it in stark terms. “Is it unacceptable to us that there is a drug trade? Or is it unacceptable to us that people are dying? And from my lens it really is a choice between the two in terms of developing a meaningful strategy. Do we focus on the justice of going after the people who ostensibly killed one person by handing over a drug? Or do we take a 30,000 foot view and try to change course from what we’ve been doing for the past 100 years?”

Still, Foster says, law enforcement has an important role to play in stopping the flow of drugs, as well as prosecuting those who deal in lethal doses. 

“There are two sides: the supply side and the demand side. Law enforcement is looking on the supply side of things. There are folks certainly selling to support their habit. There also are people who are selling because it’s their business of choice. Some addicts have day jobs. They’re buying; they’re going to work every day. Others decide to earn their living by selling drugs. And there are folks who do not have a substance use disorder who in fact sell drugs. There’s all level of dealers and obviously there are much larger ones who have an entire criminal enterprise.”

Thomas says it’s rare that anyone with a small amount of heroin ends up with a felony conviction.

“It usually gets pled down. And there’s no jail time. It’s very rare you’re going to see somebody actually ends up in jail or prison the first time they get caught with heroin or any felony level drug."

And his encounters with addicts have often led to turning points in their lives.

"They’ve said, you saved my life. I would never have started down this path. My family couldn’t get me to do it; my loved ones couldn't get me to do it, but being arrested and being put in front of that judge and having that hang over my head -- that I’m going to end up in prison, or I’m going to end up dead --  that pushed me to start down the road of recovery."

Foster, who steps down at the end of the month when his four-year term is set to expire, said he will encourage his successor to focus on the state's addiction crisis, including going after prescription drug manufacturers for improper marketing of opioid painkillers, which are the source of much of the addiction crisis.