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UNH law professor calls Trump plan to make federal case of synthetic dope 'window dressing'

New Hampshire Union Leader

July 17. 2018 9:43AM
U.S. Attorney General Jeff Sessions touts the Trump administration's plan to combat the deadly peril of powerful synthetic opioids in New Hampshire. (Josh Gibney/Union Leader)

Hillsborough County dealers will be the target of the new effort — named Operation SOS — to levy federal charges against any person arrested for trafficking in fentanyl or other synthetic opioids, according to the top federal prosecutor in New Hampshire.

On Monday, U.S. Attorney Scott Murray stressed that the amount of the synthetic opioid involved will not matter after a person is arrested for sale of the drug or possession with the intent to sell. Nor will the plea for leniency, often made by defense attorneys, that the dealer is an addict himself.

“The fact that someone is using does not reduce the harm they are doing to society and other people by selling drugs,” said Murray, the former Merrimack County Attorney. “We’re not prosecuting them for using drugs, we’re prosecuting them for selling.”

Even prosecution of street-level dealers keeps drugs out of the hands of potential users, and it disrupts the flow of profits to overseas producers of fentanyl and other synthetic opioids, Murray said. Cases will have to be readily provable, he stressed.

Last week, U.S. Attorney General Jeff Sessions visited New Hampshire and met with Murray, prosecutors and police. Sessions announced Operation Synthetic Opioid Surge, modeled after a program in Florida that saw a 22 percent reduction in fatal overdoses in the first year the program was in operation.

In a subsequent statement, Murray and Sessions said the Operation SOS will focus on Hillsborough County, the state’s largest county and home of Manchester and Nashua. Murray said he increased his staff by two recently, and with the additional prosecutor pledged by Sessions he will start a drug-prosecution unit within his office.

The president of a defense lawyer group said penalties at the federal level are stricter due to federal sentencing guidelines and policy directives issued by Sessions.

“Without treatment, the federal government will be putting people in cages who have a disease and not doing much to stop the use and sale of fentanyl,” said Chuck Keefe, head of the New Hampshire Association of Criminal Defense Lawyers and a Nashua criminal defense lawyer.

He said any vacuum created by a drug dealer’s arrest is quickly filled, and street-level dealers often don’t know if they’re selling heroin or fentanyl.

Another criminal justice expert also expressed skepticism.

“It’s all window dressing. It makes it look like we’re getting serious now. As if state prosecutors weren’t serious,” said Albert “Buzz” Scherr, professor of law at the University of New Hampshire School of Law.

This is not the first time that high-profile prosecutors have stepped in to prosecute opioids. Last year, New Hampshire Attorney General Gordon MacDonald announced his office will prosecute all carfentanil cases. And his office prosecutes cases of drug sales that result in overdose deaths.

It’s unclear what impact Operation SOS will have on MacDonald’s initiative.

MacDonald’s chief of staff, James Vara, said his office works closely with federal prosecutors and will continue to do so.

Stiffer sentences

Traditionally, federal drug cases are brought when federal law enforcement such as the Drug Enforcement Administration worked a case, when a drug-dealing network reached into neighboring states, or when amounts exceeded 50 grams, prosecutors said. Federal law requires minimum sentences for particular convictions, based on the amount of the drug involved. For example, trafficking of 40 grams or more of fentanyl results in a minimum sentence of five years in prison.

Hillsborough County Attorney Dennis Hogan said the details are still being worked out, and he expects Operation SOS will ramp up in September. Hogan also said discussions are focusing on the Felonies First initiative, which arraigns defendants in Superior Court immediately, and “where to draw the line” on federal prosecutions.

“We can use all the help we can get. It’s great they recognize we need the support,” Hogan said. “I’m not a turf guy. I’m a team player; teams get more things done.”

Hillsborough County hosts two superior courts, where most felony charges are brought. Last June, 32 of the 280 indictments issued by a grand jury in Hillsborough County Superior Court-North involved fentanyl. They ranged from possession or small sales, which carried penalties of 3 1/2 to seven years, to repeat sales of large amounts that carried maximum penalties of life in prison.

Unlike the federal system, New Hampshire judges can reduce the minimum sentence called for in state law.

Hogan expects stiffer sentences; mandatory minimums will render moot any arguments by defense attorneys that their clients are also users, he said.

Murray said that while the federal government has mandatory minimums, it has its version of drug court, called the Laser (Law Abiding Sober Employed Responsible) program. And he said the federal government does a better job than New Hampshire when it comes to post-incarceration services to aid rehabilitation.

Crime Heroin