New Hampshire’s prosecutors vow to hold dealers accountable in overdose deaths

  • FILE - This Wednesday, April 26, 2006 file photo shows different brands and dosages of Fentanyl patches, marked with warnings about non-precribed uses in St. Louis. Fentanyl is a narcotic that is typically administered to people in chronic pain, including end-stage cancer patients. It is also used as an anesthetic. It is considered 80 times more powerful than morphine and can kill by inhibiting breathing. (AP Photo/Tom Gannam) Tom Gannam

Monitor staff
Published: 9/11/2016 12:19:26 AM

Once viewed by law enforcement as little more than tragic accidents, drug overdose deaths are today increasingly handled as serious crimes. And investigators are now making drug dealers the main target.

As the state continues to grapple with a surge in opioid abuse, county, state and federal prosecutors are looking to existing laws to hold dealers accountable when the drugs they sell lead to an overdose death. They’re arguing that those responsible for supplying the fatal doses of heroin, fentanyl or any other drug should face up to life in prison.

The push toward life sentences marks a significant shift in strategy for prosecutors, and it opens a debate into how far New Hampshire should go to legally address the epidemic.

“I’m particularly focused on and hope to get the folks who make it their business to sell,” said Attorney General Joe Foster. “We want to send the message that if you come to New Hampshire and sell drugs, you will be held accountable.

“Will it create a deterrent? I think it’s too early to know. I hope it does,” he said.

But there is division within the legal community about the latest strategy. Defense attorneys say locking up drug dealers for life won’t curb the problem, and that a holistic approach that prioritizes treatment is necessary. Further, those in recovery say the fear of punishment – and even death by overdose – does not deter chronic drug users, who also deal to support their habit.

And while some are calling for no incarceration, a Republican gubernatorial candidate recently advocated for a solution on the other end of the spectrum. At last week’s WMUR gubernatorial candidates’ debate, Jeanie Forrester said, “In the case particularly of drug dealers who sell drugs to somebody that leads to a death, they should absolutely – if they are tried for murder and convicted – they should face the death penalty, absolutely. We need to be serious with drug dealers in the state of New Hampshire.”

Forrester is the first to suggest such a high penalty for dealers in the state. She had previously called for a life sentence without parole.

Under an existing state law, prosecutors must be able to prove to a judge or a jury that a dealer knowingly sold a drug that resulted in death. If a person is convicted under that section of the controlled drug act, he or she faces a maximum sentence of life in prison with possibility for parole.

Dealers can also face a charge of second-degree murder if they are recklessly dispensing a drug, even after a person died, said Senior Assistant Attorney General Ben Agati. The murder charge carries the same maximum penalty.

Based on current statutes, prosecutors do not make a distinction between fentanyl – which is 50 to 100 times more powerful than heroin – and other opioids.

Fatalities and investigations

In April, Foster announced a partnership between his office and the U.S. Attorney’s Office to pursue dealers in fatal overdose cases.

The push for collaboration and the pooling of resources is not unique to New Hampshire.

Officials in other states, including New Jersey and Wisconsin, have issued similar directives to treat overdose deaths as crimes. As in New Hampshire, prosecutors in those states are using existing laws more broadly to punish dealers. Elsewhere, legislators have revised state laws or passed new ones in response to the opioid problem.

At this time, New Hampshire is not looking to amend existing laws that establish penalties in drug possession and sales cases that do not involve deaths.

The state medical examiner’s office confirmed Wednesday 241 drug deaths so far this year, with 200 of those caused by opioids and 90 by fentanyl alone. The cause of an additional 91 deaths is awaiting toxicology. The state is on pace to reach 480 drug-related overdoses this year, eclipsing last year’s total of 439.

In less than five months, New Hampshire’s joint task force has assisted in more than 70 fatal overdose cases, said Agati, who is a member of the group.

One of those cases was brought against Chichester resident Benjamin Bundy, who was convicted in the deaths of two people in Concord. He pleaded guilty in Merrimack County Superior Court last month to dispensing a controlled drug that resulted in a death and causing or aiding in a suicide. A judge sentenced Bundy to 15 years to life in prison.

His one-time girlfriend Jennifer Azzara, 31, died of acute heroin intoxication in what was deemed a suicide. Her death came more than one year after Bundy knowingly sold heroin laced with fentanyl to 28-year-old Mathieu Nichols, who overdosed Dec. 26, 2014.

Merrimack County Attorney Scott Murray, who prosecuted the case, said when police interviewed Bundy, he declined to identify the person in Lawrence, Mass., who sold him the drugs. If he had, it’s difficult to say how far beyond Bundy – and the New Hampshire border – the case may have gone, Murray said.

“If the evidence shows that even an out-of-state dealer is responsible for causing a death in New Hampshire, they certainly could be prosecuted,” he said. “But you need a large amount of investigative resources to do that.”

That’s where the collaboration of local, county, state and federal agencies comes into play. One agency does not have the resources to stop the flow of drugs into the Granite State, said Emily Gray Rice, U.S. attorney for New Hampshire.

Concord police Lt. Tim O’Malley echoed that point, while noting that these types of investigations require a significant amount of time and patience. And sometimes after months of hard work, police are unable to turn up enough evidence for prosecutors to try a case.

“It’s a daunting task when you look at how hard it is for us to just establish probable cause,” he said.

But the standard of proof for prosecutors is much higher, he said. They must prove beyond a reasonable doubt that the crime was committed.

Doing so can be a challenge especially when witnesses also struggle with addiction, Concord police Detective Rob Buelte said. Many times, they are versed in the criminal justice system because their addiction has led to other criminal behavior, and they know they don’t have to talk, he said.

People also may not want to give up a dealer because they plan to go back to that dealer, Buelte noted.

Agati said he worries less about potential witnesses’ unwillingness to talk and more about their long-term survival if they’re also drug users. That’s because there is always the risk they could die or suffer a medical complication before a case is ever prosecuted, he said.

The incarceration debate

Prosecutors agreed with those in the recovery and treatment communities that addiction is a medical problem that must be addressed at all levels. They also agree on the importance of preventive education, beginning at an early age.

Where they differ is on incarceration, and to what degree, if any, it is part of the solution to the drug crisis.

Dean LeMire of Dover, who is a leader in the recovery community, said the funding allocated to law enforcement is money not being spent on treatment. People can spend weeks, months or years in jail and still return to their old habits upon release, he said.

“Addiction is marked by an inability to stop using the substances despite the consequences. That was certainly my experience as a heroin addict,” said LeMire, who has been in recovery for more than four years.

“The threat of arrest scared me. I got arrested and lost all sorts of privileges and opportunities, but the threat of arrest or losing anything wasn’t enough to keep me away from the drug,” he said.

Concord defense attorney Jim Moir said harshly prosecuting people in fatal overdose cases sounds good on paper, but in reality makes little sense. That’s because drug dealers are also drug users, and first and foremost they need treatment to break the addiction cycle, he said.

“There’s not a single drug addict that wants to be a drug addict, but the difficulty is that it’s so hard to get off the drugs,” Moir said.

Prosecutors say they understand the addiction component and that a multifaceted approach is important. But they also argue incarceration is a necessary component of that approach when a life is lost.

“People need to pay their debt, because they caused a death,” Foster said. “Addiction is a disease that needs to be dealt with, but it doesn’t mean that people aren’t culpable.”

If an alcoholic drives drunk and kills someone, he or she is held accountable, Foster said, while noting the same should be true in overdose deaths.

Rice said there is a high degree of sensitivity in the legal community about the opioid crisis. Prosecutors understand it’s a tremendously complicated issue for which there is no one-sided solution, she said.

Rice noted that in U.S. District Court in Concord, federal prosecutors handle many cases where the drug traffickers are not struggling addicts but in the business of selling drugs because its profitable. In the lower courts, those types of cases are less common but do occur, she said.

For defendants who are addicts, there is a federal drug court called LASER (Law Abiding. Sober. Employed. Responsible.), which has four phases and can be completed in 12 months, Rice said. The program mirrors similar ones in effect at the county level.

“We’re trying to do all we can to address what is a very complex societal problem,” she said. “The citizens of the state have the right to expect that we’re going to do everything we can to make the situation better.

“The goal is to one day no longer have to prosecute these cases. . . . We’re a very, very long way from that.”

(Alyssa Dandrea can be reached at 369-3319, or on Twitter @_ADandrea.)

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