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As N.H. Scales Up Its Battle Against Drugs, Will History Repeat Itself?

Ollie Atkins / Richard Nixon Presidential Library

When politicians talk about drug abuse, ‘tough on crime’ is a phrase that seems to be going out of style as lawmakers on both sides of the aisle agree that the "War on Drugs" didn’t solve the problem.

But here in New Hampshire, lawmakers have agreed to fund a program called Operation Granite Hammer.  It puts $1.5 million dollars toward police departments battling the opioid epidemic. And this week we have also heard state politicians at local and national levels harkening back to a tough on crime approach-- more drug arrests and stiffer prison sentences.

This past April, an unlikely bipartisan group of U.S. senators held a press conference. They’d come together to announce legislation that would scale back some of the harshest sentences on the books for nonviolent drug offenders.

"The legislation that we have before us represents more than three years of work on criminal justice reform. And months of bipartisan negotiation," said Senator Dick Durbin of Illinois, a Democrat, standing alongside Republican Senator Mike Lee of Utah.

"I support this not in spite of my status as a conservative Republican but because of it," added Lee.

It was a political moment that would have been unthinkable a generation ago—beginning in 1971 when President Nixon officially launched the War on Drugs:

"We must wage what I have called total war on Public Enemy Number One in the United States, the problem of dangerous drugs."

In the decades following, Republican and Democratic politicians agreed that prison time—implementing three strike laws and mandatory minimum sentences—was the best way to fight the drug war. The federal prison population went up by 800 percent since 1980, with most of those inmates getting sent away on drug offenses.

You've probably heard that story because lately we’re hearing politicians, police chiefs and public health experts all say those policies were mistaken, that they did more harm than good.   

And here we are in New Hampshire, where an opioid epidemic took more than 400 lives last year. And where politicians are proposing mandatory minimum sentencing and tough on crime attitudes reminiscent of the 1980s. Especially when we’re talking about the drug fentanyl.  Everything, including life sentences for drug dealers, seems to be on the table.

On Wednesday, Republican gubernatorial candidate and Manchester mayor Ted Gatsas proposed: "If you are caught dealing fentanyl, the charge is attempted murder. If you can be linked to an overdose death the charge is murder without the possibility of parole." 

And this month, Senator Kelly Ayotte proposed an amendment to the defense bill that would have increased the mandatory minimum sentences for possession of fentanyl. "I want to make sure that we’re treating this with the seriousness it deserves.  So that we weren’t somehow minimizing and treating fentanyl as actually lesser, given the potency of it and given how you needed a lot less of fentanyl really to have a devastating impact on someone’s lives."

Ayotte’s amendment would have given someone caught possessing .1 grams of fentanyl mixed with 1.9 grams of baking soda an automatic, mandatory 5 year prison sentence—which would double to 10 years on a second offense, life without parole on a third offense.

And though that amendment wasn't included, Ayotte says her push to increase prison time for having fentanyl is overdue.

"When I think about the high level dealers, those who, whether it’s trafficking 400 grams of heroin or the equivalent of fentanyl, I mean that’s a high level offense. If that much, [then] you’re beyond your use or those of a friend or something. So I think it depends on the nature of your offense in terms of how severe the sentencing should be."

But this idea—that there’s a bright line between the people who use drugs and anyone who deals, is what led politicians down the road of a failed drug war in the first place, say advocates like Molly Gill of the national groupFamilies Against Mandatory Minimums.

"These laws have totally failed. And to keep doing more of the same is just a waste of taxpayer dollars and human lives."

As Gill points out, while mandatory minimum sentencing was designed to put kingpins and high level drug traffickers in prison, the surge in prison population in the '80s and '90s actually came from low-level drug criminals getting sent away, by the thousands.

"We've had mandatory minimums for thirty years and you have a heroin epidemic at the end of thirty years? That to me is the biggest indictment of mandatory sentencing that there is."

Whenever politicians debate a drug crisis this tension develops—between seeing drugs as a public health issue to treat or a crime to punish.

As Sen. Ayotte has pushed to increase prison sentences for fentanyl, she also pushed forward a major bill in the U.S. Senate called the Comprehensive Treatment and Recovery Act.  And when Ted Gatsas talks about locking up drug dealers for life, it’s right after he’s declared the opioid crisis a public health emergency. 

The question is:  as New Hampshire works to fight this crisis are lawmakers heading back down a road of mandatory prison sentences and surging levels of arrests? Even as one poll showed the vast majority of New Hampshire voters are against that kind of sentencing?

Just yesterday in the New Hampshire legislature, Republican representative Max Abramson of Seabrook spoke out in opposition to expanding "Operation Granite Hammer."

"In 50 years every time we have stepped up the War on Drugs, crime has gotten worse," he told the House.

But the program, which is also backed by Democratic Governor Maggie Hassan, passed—sending an additional $1.5 million dollars toward police departments battling the drug crisis—putting more officers on the streets and more drug users and dealers in jail.

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