Over the past several months, New Hampshire has dusted off a rarely used legal provision to crack down on heroin and fentanyl dealers who supplied drugs that proved lethal to their customers. But public defenders and addiction treatment advocates say prosecutors are going too far.
The loss of a life due to opioids like fentanyl and heroin can be viewed as an individual succumbing to an illness or it can be seen as murder. State and county prosecutors, as well as some leaders in law enforcement, have adopted the latter view and have found a way to use an existing statute to ensure the penalties fit that crime for the person who supplied the overdose victims.
David Rothstein, the deputy director of the state Public Defender, said prosecutors have begun using a provision that gives judges discretion to sentence drug dealers for up to life in prison in cases where death is proven to be the result of the sale.
And these so-called “death resulting” cases have started to appear across the state.
“From the perspective of the defense, I can tell you that in the last nine months or so we’ve opened about a dozen of these death-resulting cases, which is a significant increase over the past,” Rothstein said. “These cases were prosecuted very infrequently and when they were prosecuted they were almost uniformly prosecuted by the local county attorney’s office.”
Now, Rothstein said, the majority are being handled by the state Attorney General’s office, which prosecutes all of the state’s capital crimes.
Spearheading this effort is Senior Assistant Attorney General Benjamin Agati, the head of the AG’s drug unit. The unit had been around for some time, and until recently it focused its efforts on prosecuting major drug dealers. Now, Agati said, while the unit still does some of that work, it’s primary mission is going after dealers connected to death-resulting overdose cases.
Attorney General Joseph Foster implemented the change about a year ago, according to Agati.
“The major reasons for that is when you’re dealing with an overdose-related death, it’s very similar to a homicide. And because of that, the investigative steps you need to take from the beginning almost change as soon as the 911 call goes off,” Agati said.
He admits the primary weapon used to prosecute these cases, a line in RSA 318-B:26, has rarely been used.
“It was a statute that was on the books but quite frankly hadn’t been used to a great extent, certainly by our office ... and wasn’t being used to a great extent by county attorneys either,” Agati said.
Hillsborough County Assistant Attorney Brett Harpster said dealers in death-resulting cases are seldom given the full life sentence, but their prison terms are often longer.
“If you can prove that the overdose is related to the other person giving you the drugs, there can be some very harsh penalties, for sure,” Harpster said.
Rothstein said he’s aware of only a few recent cases that received sentences under this legal provision so far.
One case in Hillsborough County that Agati prosecuted resulted in 10 to 40 years in prison for the dealer in question. Another case in Cheshire County resulted in a 6.5- to 14-year sentence. Most recently, a case in Belknap Country resulted in a sentence of 15 years to life.
While state law does not prescribe a minimum mandatory sentence for dealers in these cases, federal law does have a mandatory minimum sentence of 20 years. Rothstein said the U.S. Attorney’s office is starting to get involved in a small number of cases in the state.
Law enforcement and treatment advocates have agreed for the past several years that the state cannot arrest its way out of this crisis.
One of the problems with these stronger penalties, according to treatment advocates, is that they emphasize incarceration over treatment. Plus, they say, current law doesn’t distinguish between the low-level and high-level dealers. Rothstein said the majority of low-level dealers are addicts themselves.
“The statute does not draw any distinction between an individual who dispenses and sells these drugs who does it as their business, versus an individual who gives it to a friend, let’s say,” Agati said.
New Futures Executive Director Linda Paquette says that addicts who are dealing drugs are suffering from a mental illness and should be given access to treatment.
“Law enforcement is a critical component of the solution to our drug crisis; however, law enforcement needs to be focused on cutting off the supply of drugs coming into our state from these enormous drug cartels that are selling drugs for their own profit,” Paquette said. “Prosecuting people who are selling drugs to support their own habit and to support really the disease of addiction that they are suffering from is a different situation. And what we have learned is the so-called War on Drugs doesn’t work.”
Paquette said the majority of people in the criminal justice system represent people who need treatment but those people are much less likely to get treatment. She supports the drug court system, but that only serves a small segment of low-level offenders.
Rothstein said a drug dealer who is an addict convicted of dealing will have a far more lenient sentence than another addict dealing the same amount of drugs but with an additional death-resulting charge tacked on. The person charged in a death-resulting case will have a much harder time getting access to treatment, Rothstein said.
The difference between the two comes down to chance.
“Every time you take heroin, you’re basically … playing Russian roulette,” Rothstein said.
The meaning of a sentence
Agati said the drug dealer who received the 10- to 40-year sentence, Kevin Manchester of Nashua, received his sentence in large part because he knew one of his customers died and he continued to sell to the victim’s boyfriend and undercover police officers regardless.
Manchester’s attorney testified during the sentencing hearing that Manchester had been using opioids since he was prescribed painkillers in his teens.
For Agati, throwing an addict in prison for a longer sentence in death-resulting cases is not unlike giving a harsher sentence for a drunk driver who caused a fatal car accident.
But does the risk of a longer sentence deter addicts from dealing?
Treatment advocates say deterrence does not work on addicts, even though that’s one of the presumed goals of the harsher penalties.
But Agati said every judge reaches his or her sentencing decision based on three other factors besides deterrence: punishment, restitution and rehabilitation.
Proponents of the harsher penalties, like Manchester Police Chief Nick Willard, often cite punishment and restitution.
“I’ve made it known that I don’t distinguish between a drug dealer that does it for profit and doesn’t use and a user that deals drugs to support their habit. And the reason I don’t distinguish between the two is because both of them run the risk of causing death to another human being,” Willard said. “Although I sympathize with somebody who is suffering the disease of addiction, and they feel compelled that they have to sell drugs, if that person sells drugs to another individual and that person dies, regardless of the disease, I believe they need to be incarcerated just like any other drug dealer.”
A portion of the state-issued Granite Hammer funds given to Manchester police has been used to dedicate a regular line detective and drug unit detective to track down the source for each fatal overdose in the city.