Decades after President Nixon declared drugs "public enemy number one," the criminal justice system is still grappling with the problem. In recent years, we've seen bipartisan calls for an end to so-called mass incarceration for drug crimes and a shift away from the so-called "war on drugs" toward greater emphasis on treatment for addiction.
As Acting U.S. Attorney John Farley sees it, the phrase "war on drugs" is a bit of a buzz term that oversimplifies a battle now being waged on two fronts.
"There is the effort to get people to stop using drugs, and there’s the effort to try to stop people from selling drugs and from preying on people who are suffering," Farley said on The Exchange.
"I don’t know that you can say the war on drugs has failed. It’s ongoing and will probably never end. But we are certainly in a very bad spot right now. We have mounting deaths resulting from fentanyl. We have a community that is really suffering."
His agency goes after major drug traffickers.
The latest scourge in the drug crisis is carfentanil -- a synthetic opioid about 100 times more potent than fentanyl. So far this year, 37 people have died from fentanyl and six from carfentanil. The state has been in the grip of an opioid epidemic for some time now.
Farley concedes that some dealers also suffer from addiction.
"We can’t simply just prosecute people and put them in jail. We need to look at the root causes, such as why are people using drugs, why are they starting, what’s motivating them to do that even though they see the body count mounting every day. What’s going on? I think as a society and here in New Hampshire we’re taking a step back and taking a broader approach. "
Patricia Conway, Rockingham county attorney, agrees there's much more to solving the problem than just arresting people. She also thinks the phrase "war on drugs" serves a vital purpose.
"I think it demonstrates that this is very serious and we need to come together as a community, just like we would if there was a war, and support our troops and really come together and fight the problem," she said.
But for Behzad Mirhashem, assistant professor of law at the UNH School of Law, the war on drugs has been wrongheaded and has criminalized addiction and drug use with devastating consequences for some communities, as well as civil liberties.
"The human cost was the number of people in this country went from around 200,000 in the early 1970s to 2 million in the year 2000," Mirhashem said.
"And when you talk about people being locked up, they lose their job, they lose their home, they lose their ties to their children, their families, and so there’s been a tremendous human cost of this concept of war as a response to a social problem. But the other aspect of this is an incredible cost in terms of individual freedoms."
That strikes a chord with Anna Battle, who is in recovery from heroin addiction and spent time in jail on drug-related charges, including while she was pregnant. She now works at Hope on Haven Hill, which helps pregnant women who are dealing with addiction.
"It's a sad concept, the war on drugs, because it makes me feel like it’s a war on our own people who are suffering with the disease of substance use disorder. So from my experience with incarceration and through addiction there’s not much rehabilitation available in our jail systems," she said. "It’s important to look at people as having a disease rather than a moral issue."
Still, Battle does believe in holding people accountable for actions and in consequences that include jail. "So, if we do need incarceration, what do we need inside our jails that is going to help stop the recidivism rate," she said.
Prosecutorial and Police Discretion: The Pros and Cons.
When it comes to deciding how to handle those possessing and dealing drugs, Conway says prosecutors consider many factors, including aggravating circumstances.
"For instance, how much drugs were involved? Was it one hit or one use? Is it someone with intent to sell? Or is it straight possession? Is it someone with a long criminal history? Is it someone who suffers from substance abuse or is it a drug profiteer – someone who does not suffer from substance abuse but is profiting off the misery of others," she said. "If it’s someone who is selling drugs, who is not addicted and profiting from the misery of others, then that person should go to state prison for a long time as far as I’m concerned."
Farley says a recent memo by U.S. Attorney General Jeff Sessions instructing federal prosecutors does not diminish prosecutorial discretion or signal a major shift toward mandatory-minimum sentencing, as claimed by some.
"His memo still provides us with the ability to look at an individual, the individual facts and circumstances of the case, and make that judgment that this is not the appropriate way to charge a particular case," Farley said.
But such discretion too frequently does not serve the cause of justice, according to Mirhashem.
"Police, prosecutors have a lot of discretion and how they exercise it is critical. A police officer sees a young person who looks like he’s smoking a joint and the kid flicks it off into a stream -- the officer can let it go or he can charge that person with felony, falsifying physical evidence. That’s a point of discretion for a police officer," he said.
"Then a prosecutor reviews that case, he or she can decide to bring that change or not. And large scale the reality is that discretion has been exercised in the system to the great detriment of poor people and people in minority communities. The problem is not the individual, horrible police officer who goes after poor people or black people but there are structural forces in play such that the war on drugs has devastated certain communities."
For the full Exchange conversation, listen here.