As Gov. Chris Sununu and New Hampshire State Police threw their support behind two bills that would add mandatory minimum sentences for certain drug-related crimes, opponents testified that such policies don’t deter drug use or sales, or reduce overdose deaths.

The Senate Judiciary Committee on Thursday took up Republican-led Senate Bills 414 and 415, both of which Sununu supported in a letter to the committee. 

“These Senate bills are about holding drug dealers accountable for the death and suffering they are causing the citizens of New Hampshire,” he said. “Drug dealers are aware that the drug trafficking they partake in, and the fentanyl-laced products they are selling, are deadly but sell them anyway because they value profit over human life.”

SB 414 would establish a mandatory minimum sentence of 10 years in prison for the crime of distribution of a controlled drug with death resulting. SB 415 would add mandatory minimums for certain fentanyl crimes – including 3½ years incarceration for possession of 5 grams or more, and seven years for 28 grams or more. 

Both bills are sponsored by Republican Sen. Bill Gannon, of Sandown.

Supporters of the bill said the legislation would send a message of deterrence to drug traffickers. Meanwhile, representatives from the New Hampshire Association of Criminal Defense Lawyers and the American Civil Liberties Union argued mandatory minimums disrupt the judicial process, and that resources are better spent on prevention and treatment. 

Senate Bill 414

During a public hearing on Jan. 11, Gannon said he introduced SB 414 after a Fremont mother reached out to him following her 22-year-old son’s overdose death. Under the state’s Controlled Drug Act, a person can be charged with selling a drug that ultimately led to a person’s overdose death. These are typically referred to as “death-resulting” cases.

Gannon’s bill would change the statute to strict liability, requiring that a person found guilty of the crime must be sentenced to prison for at least 10 years – “intent not necessary,” he said. 

State Police Maj. Bill Bright said his agency supports the effort to implement a mandatory sentence for death-resulting convictions, describing them as cases that are already difficult to prove and require a high-level of evidence. He viewed the proposed 10-year sentence as a strong deterrent for individuals selling drugs. 

Speaking in opposition to the bill, Devon Chaffee, executive director of the ACLU of New Hampshire, said studies have shown the majority of prosecutions in death-resulting cases are not big-time dealers; rather, they’re friends, family members, or acquaintances who are likely fellow drug users also in the throes of addiction. 

“When I look at this bill, I don’t understand how it’s going to, in any meaningful way, prevent tragic overdose deaths in the future,” Chaffee said. 

What is making a difference, Chaffee argued, are prevention efforts, such as making Narcan widely available and expanding access to drug-testing equipment such as fentanyl and xylazine test strips.

American Medical Response, which provides EMS services, recently reported the number of fatal overdoses in Manchester and Nashua dropped 20 percent last year compared to 2022. In 31 percent of the 924 suspected opioid overdoses reported in both cities, a bystander or member of the public administered Narcan.

Chaffee also took issue with what she perceived as mandatory minimum sentences taking away power from judges in the courtroom. “Judicial discretion is so important,” she said, “to make sure the level of punishment is actually doing what we consider to be justice, with regards to the facts of the actual case.”

Senate Bill 415

SB 415 is also sponsored by Gannon, who following Chaffe’s testimony on SB 414 said he understands the “soft touch” approach.

But he contested that “we need both” – prevention efforts as well as stiffer penalties. SB 415 would assign mandatory minimum sentences to fentanyl-related crimes based on the weight of the drug in possession. Of the bill’s 11 sponsors, Manchester Sen. Donna Soucy is the sole Democrat. 

State Police also support SB 415. “If we are able to keep the sources of fentanyl off the street and from distributing these drugs, it keeps our streets safer, it keeps our communities safer, at least from that person who has been proven to be a distributor,” said Bright.

What followed at the hearing was an exchange between lawmakers and Jeff Odland, president of the New Hampshire Association of Criminal Defense Lawyers, about “imperfect options.” While Odland testified that mandatory minimums “are not good public policy,” Republican Sens. Sharon Carson and Daryl Abbas queried what is, concerned that the state remains gripped by its opioid epidemic, despite the magnitude of resources that have been deployed.

“One of the things I’m reading into, both with this legislation and hearing from you, is a sensitivity to treating drug-addicted persons and drug dealers differently, and trying to find how to thread that needle,” Odland said. 

Gannon’s proposed legislation, he said, is a “one size fits all approach,” and removes a judge’s ability to consider the person before them and the “whole of the offense.” 

Odland warned the definitions of users and dealers aren’t so “binary,” giving examples on two ends of the spectrum: a person addicted to fentanyl who distributes it to four or five friends to support their habit versus someone who traffics in kilo-level amounts and does it to make a profit. 

While there was overall consensus that a low-level dealer may not be equivalent to a trafficker, Abbas, of Salem, countered, “The concern here is while they’re selling amongst their peers, it could result in the death of their peers.” 

In her remarks, Carson, of Londonderry, said the state under Sununu’s leadership has invested significant amounts of money in drug prevention, treatment, drug courts, and more. But it never seems to be enough, she said. 

“I guess one of my questions to you is, when does personal responsibility come into this?” she asked. “Because this is also about public safety. I’ve had conversations with constituents about this issue and they’ve asked me when is enough enough? At what point are we going to start holding people responsible?”

Odland understood the committee’s frustration, he said, and felt that ultimately, all stakeholders hope to get to the same place – though maybe not via the same mechanisms. 

“There is unfortunately something deeper going on in our society, both locally as a state and as a country, that there is some sort of epidemic of loneliness and helplessness that people are drawn to these drugs. And there is a market for that.”