AUGUSTA — Maine Attorney General Janet Mills asked lawmakers Wednesday to once again allow prosecutors to use the threat of a felony conviction for possession of heroin and other narcotics as a way to prod drug users into treatment.

But treatment advocates and defense attorneys said harsh penalties for drug possession creates lifelong problems for users and will do little to address the state’s drug crisis.

“We have tried to arrest our way out of public health crises and it has not worked,” said Oamshri Amarasingham of the American Civil Liberties Union of Maine.

The debate was the inadvertent byproduct of a bipartisan move in the Legislature last year to reduce the penalties for low-level drug possession when the offender has no previous convictions. But that effort created a legal conflict by making possession of heroin, methamphetamine and other narcotics a misdemeanor under one section of Maine law and a felony under another.

A bill requested by Mills’ office now pending in the Legislature would once again make it a Class C crime – a felony punishable by up to 5 years in prison – to possess heroin, meth, the potent painkiller fentanyl, more than 30 milligrams of oxycodone, and more than 7 grams of cocaine.

In testimony to the Legislature’s Criminal Justice Committee, Mills said that under the new law that took effect in October, heroin possession is now “a slap on the hand” carrying a minimum $400 fine, a misdemeanor criminal record and no probation or treatment conditions. That is inadequate motivation to force someone to seek treatment for an addiction that can destroy his or her life as well as the lives of those around them, Mills said.

She said that before the change many prosecutors routinely had used what is known as a “deferred disposition” in which accused persons are charged with a felony up front – and threatened with a lengthy sentence – but only end up with a misdemeanor conviction as long as they complete drug treatment and probation.

“A felony charge brings with it the possibility of a significant period of probation … along with a long sentence hanging over the person,” Mills said. “That kind of potential sentence gives the person an incentive to get into treatment and to demonstrate their commitment to recovery.”

Maine Drug Enforcement Agency Director Roy McKinney also testified in support of the bill.

In 2012, the last year for which numbers were available, 79 percent of drug arrests in Maine were for possession, not for the sale or manufacture of drugs, according to testimony submitted during last year’s debate.

Mills, a Democrat, as well as Republican Gov. Paul LePage both opposed last year’s bill to reduce the sentences for narcotics possession, and LePage allowed the bill to go into law without his signature. But supporters saw the changes as part of a broader drug reform effort aimed at locking up drug dealers and traffickers rather than the addicts who need treatment. The Legislature also passed a bill making it a felony offense to possess powdered fentanyl, which is often combined with street heroin to increase its potency.

Opponents of the attorney general’s current proposal said elevating simple drug possession to a felony once again would be a retreat from the bipartisan drug sentencing reforms taken last year.

“As a taxpayer and citizen of Maine, I would prefer our tax dollars go to prevention, treatment and recovery rather than mounting costly felony prosecutions against the users actively facing addiction,” said Christopher Poulos, a former opiate addict from Yarmouth who works on criminal justice and addiction policy at the local, state and national levels.

Some of the most passionate testimony came from Rep. Michael Devin, D-Newcastle. Devin said drug policy is increasingly a veteran’s issue because many military personnel were first prescribed powerful opiates – with false assurances from doctors that the drugs were safe – to help them deal with injuries suffered while on active duty.

A felony conviction could prompt a dishonorable discharge and lifetime ineligibility for veteran’s benefits. It also can disqualify felons from student loans and make it harder to get a job. Instead, Devin proposed keeping it a misdemeanor for first-offense possession of heroin and other drugs but elevating it to a felony, Class C crime for subsequent convictions.

Walter McKee, representing the Maine Association of Criminal Defense Lawyers, “flatly disputed” suggestions that a tougher sentence serves as a deterrent to possession of heroin for someone in the grip of addiction.

“I have not heard that,” McKee said. “I’m sure there are some isolated cases where someone says, ‘I’m not going to use heroin because it is a felony,’ but I’ve never seen it.”

McKee said misdemeanor crimes still carry the possibility of up to 364 days in jail plus other consequences. But a felony conviction carries a life time of consequences that can impede recovery from their addiction, he said.

The committee is expected to hold a work session on the bill, L.D. 1554, on Feb. 10.


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