Terry Roy said he knows mandatory minimum sentences alone won’t fix New Hampshire’s fentanyl problems.

“I don’t think, at this point, it’s even really worth debating … The evidence doesn’t seem to be there on its own,” said Roy, a Republican state Representative from Deerfield. “However, as part of a complex and thoughtful program, they can be helpful.”

The House Criminal Justice and Public Safety Committee, which Roy leads, isn’t sold on them quite yet. Several lawmakers, mostly Democrats, said they favored leeway for judges to decide how long someone should spend in prison.

Roy introduced an amendment to include what he called a “safety valve,” which retains judges’ discretion in some cases – like if the defendant is not a high-level dealer and works with police to provide information – but some worried there were too many conditions a case would have to fall under at once to meet those requirements. 

For example, Rep. Jodi Newell, a Keene Democrat, said someone who might meet all the other requirements still may not have information about higher-level dealings to provide to police.

“Particularly for the people who are the very lower end of the spectrum, they don’t have that knowledge. They don’t have that power to be able to even accommodate that request,” Newell said. “It cancels out everything else if they don’t have information on somebody else who is higher up the food chain.”

When Newell asked why lawmakers should pursue the legislation if the mandatory minimums and the safety valve for judicial discretion could cancel each other out, Roy said he still wants to encourage a certain outcome.

“Based on the numbers of deaths and mayhem and expense that this drug is costing us, we as a legislature – at least part of us, and society, at least part of us – feels that the discretion is not being applied enough in the punishment way,” Roy responded.

As legislators asked for more time to mull it over, they said they appreciated the inclusion of the safety valve and Roy’s proposed minimum sentences, which are lower than the Senate’s.

“We are trying to get the people that are really poisoning and killing our friends, neighbors and children,” Roy said. “I don’t want to see somebody who’s a user, who got hooked on this stuff, getting a minimum mandatory when they’re not really dealers.”

According to the bill and changes currently under consideration in the House, someone convicted of possession of more than 20 grams of fentanyl would go to prison for at least three and a half years; for possession of more than 50 grams, that time doubles to seven years. The House amendment also cuts the proposed minimum sentence for anyone convicted of dispensing fentanyl that results in a person’s death by half, from 10 years to five years.

Senate Republicans had originally set out with higher sentences for smaller amounts of fentanyl, but upped those quantities to target dealers and, as they said, prevent use and addiction, not penalize it.

Rep. Buzz Scherr, a Democrat and police commissioner from Portsmouth, pointed out that there’s no mandatory minimum sentence for the sale of fentanyl.

“Possession of 20 grams of fentanyl doesn’t mean you’re a dealer, doesn’t mean you’re selling it,” Scherr said.

Scherr and Rep. Alissandra Murray, a Manchester Democrat, said they also worry that the mandatory minimum on distribution that results in death is too strict. Under the proposed changes, they said, if someone hands their friend a pill without knowing it contains fentanyl, they’d still be held liable and could spend several years in prison.

Addiction and recovery specialists and advocates have also urged lawmakers to prioritize prevention and treatment, which they say are more effective methods of combating the drug and addiction.

The committee will revisit the proposed changes on Friday, May 16.

 

Charlotte Matherly is the statehouse reporter for the Concord Monitor and Monadnock Ledger-Transcript in partnership with Report for America. Follow her on X at @charmatherly, subscribe to her Capital Beat newsletter and send her an email at cmatherly@cmonitor.com.