A bill moving through the N.H. House would downgrade first-time drug possession from a felony to a misdemeanor, a change advocates say would reduce stigma and other barriers that face people struggling with addiction.
But the bill, HB 615, would also change the maximum sentences for various offenses related to distributing drugs, or possessing them with the intent to do so — making them less harsh in many cases, but ramping them up for small amounts of fentanyl. Those provisions have been criticized by law enforcement and by defense lawyers and harm-reduction advocates, respectively.
Sponsored by five Republicans and a Democrat, HB 615 combines two separate bills that passed the House last year but stalled in the Senate. It is scheduled to come before the full House later this week, after passing the House Criminal Justice and Public Safety Committee in February.
Legislators have introduced several bills in recent years to reduce drug possession to a misdemeanor. It’s currently a felony for most illicit drugs.
Because a felony conviction carries such stigma — and can make it harder to get work, housing or an education later on — advocates said the change could remove some of the obstacles that people in recovery face.
Ryan Fowler, who is in long-term recovery from drug addiction, said he faced felony charges when he was using but managed to get alternative sentencing that spared him a felony conviction.
“What would my life be had I gotten that felony? I would have consistently hit barriers to employment and education, and looked at the other opportunity — which is selling drugs,” Fowler, who now works in harm reduction in the Upper Valley region, said in an interview.
In practice, many felony drug possession cases in New Hampshire are ultimately knocked down to misdemeanors through plea bargaining. But defense lawyers say that doesn’t always happen and can depend on the prosecutor.
And even if a case ends as a misdemeanor, starting it at a felony puts more pressure on defendants to accept a plea deal, said Alex Parsons, the managing attorney at the N.H. Public Defender’s Keene office.
“Changing potential penalties changes how negotiations go,” he said. “So as long as potential sentences are high, potential exposure is high, that gives prosecutors more leverage.”
Tom Velardi, the chief prosecutor in Strafford County and head of the N.H. Association of Counties’ affiliate for county attorneys, said his office already resolves some drug cases as misdemeanors.
“In fact, sometimes I get cases referred to me by police who say, ‘We had to make a felony arrest on this, but we really hope you do something else with it,’ ” he said.
But Velardi expressed reservations about changing the law to “de-felonize” possession across the board. He said that would reduce prosecutors’ discretion to, for instance, bring a felony charge against someone who is believed to be selling, but is arrested only for possession.
More discussion this year has focused on the bill’s other provisions, which would change the sentences for sales, possession with intent to distribute and related offenses.
The maximum sentences for sales-related charges, which are based on drug quantity, would come down overall — from 30 years to 20 years for selling 5 or more grams of heroin or crack cocaine, for instance.
But the bill would move in the opposite direction for small amounts of fentanyl. Less of the drug would trigger a longer maximum sentence — so a half-gram, rather than 5 grams, would put someone in that top sentencing category with a max of 20 years. Under current law, selling a half-gram would carry a potential maximum of seven years.
In practice, those maximum sentences are rarely imposed. But some lawyers said raising or lowering maximums can still shift actual sentences up or down by influencing plea negotiations.
Rep. Casey Conley, D-Dover, one of the bill’s co-sponsors, told The Sentinel that the broader changes were to align the law with the actual practice of the courts, as well as put some “downward pressure” on sentences.
As for fentanyl, making the penalties tougher than they are for heroin “comports with what we know about the dangerousness and the seriousness of fentanyl in very small quantities,” he said at a recent hearing.
Fentanyl, a synthetic opioid, has largely replaced heroin in New Hampshire’s illicit markets, according to a 2019 report from the research group RAND Corp., and has driven the state’s high drug-death totals in recent years.
In its pure form, fentanyl is many times more potent than heroin. Because of that, what’s sold on the street is heavily diluted, or “cut.” One reason it’s so dangerous is that buyers, and even low-level sellers, don’t necessarily know exactly what they’re getting in any given batch, according to the RAND report.
In committee hearings and interviews with The Sentinel, defense lawyers and harm-reduction advocates challenged the logic of penalizing fentanyl more harshly than heroin, saying it doesn’t match the reality on the ground.
People who use drugs, they said, may not draw a distinction between “heroin” and “fentanyl” — it’s essentially sold as one product. That’s reflected in law-enforcement documents, which routinely refer to purchases of “heroin/fentanyl.”
“Fentanyl is being sold in the same quantities as heroin, because that is what people are used to buying,” Tony Naro, a Nashua attorney and former public defender, told a House committee last month. “… If you are a 2-gram-a-day heroin user, you’re gonna continue buying 2 grams a day of fentanyl.”
Naro and others opposed to changing the sentencing on fentanyl noted that sentencing is based on the total weight of what’s sold, including whatever a drug is cut with — so a seller would be sentenced for those 2 grams, not the fraction of it that is pure fentanyl.
“Half a gram as a cutoff is not very much,” said Parsons, of the Keene public defender’s office. “… We don’t see a lot of half-grams being sold. I mean, usually a gram is what people probably buy most frequently.”
He said the “vast majority” of people arrested for selling drugs “are themselves addicted, and they are selling to support their own habit.”
Katherine Cooper, the executive director of the N.H. Association of Criminal Defense Lawyers, testified that the group supports most of the bill but opposes the fentanyl provisions, likening them to federal laws that have treated crack cocaine much more harshly than the powder form of the same drug.
The N.H. Association of Chiefs of Police, meanwhile, objected to HB 615 because it lowers the maximum penalties for selling other drugs. Bedford Chief John Bryfonski, the group’s second vice president, said that while few people are actually sentenced to decades behind bars, it’s important to have that option for the most serious drug traffickers.
“By reducing the penalty used to charge drug traffickers, who typically are not drug users, we send the wrong message to drug traffickers whose only aim is to make money while destroying the lives of others,” he said at a hearing last month.
Conley, the bill’s co-sponsor, said the law would still give prosecutors plenty of ways to go after big-time drug dealers.
As for fentanyl, Conley argued the law needs to reflect the drug’s higher potency and the fact that it’s killing so many Granite Staters.
He also noted that the law would still give prosecutors wide latitude to judge each case individually and seek lesser sentences for people who sell small amounts and are addicted themselves.
The bill, Conley said, is a balance between a less punitive approach to addiction and “the fact that the potency of fentanyl is so much stronger than heroin and most other opioids that you find on the street that it just needs to be regulated in a different way.”