BOISE, Idaho — This article originally appeared in the Idaho Press.
The House Judiciary and Rules Committee voted Tuesday to send a bill creating mandatory minimum sentences for fentanyl trafficking to the floor without a recommendation, although many of the members indicated they would support it.
The full House will get a chance to vote on the bill without a recommendation to pass or not from the committee.
The decision came after lawmakers heard about three hours of testimony Friday and spent nearly two hours asking questions and discussing the bill Tuesday. Those in favor of it said that the issue of fentanyl trafficking in Idaho is too severe to do nothing, while others had concerns that the bill might have unintended consequences or put stress on Idaho’s already full prison population.
HB 384 sets thresholds for the amount of fentanyl, or a substance with fentanyl mixed in, that would be considered trafficking and would impose mandatory minimum prison sentences. It also creates penalties for “drug-induced homicide” that would apply if someone dies from a controlled substance that they received from someone who broke the drug trafficking statute.
One of the bill sponsors, Sen. Todd Lakey, R-Nampa, underscored that Idaho already has mandatory minimum sentences for other illegal drugs.
“We have a gap in our fence, representatives, and that is the fence that protects us from cocaine, meth and heroin,” Lakey told the committee, “but fentanyl is pouring through that gap.”
Under HB 384, those arrested with at least 4 grams but less than 14 grams of fentanyl or any mixture of substances containing a detectable amount of the drug would be guilty of a felony with a mandatory minimum sentence of three years in prison and a fine of $10,000. If the fentanyl is in pill form, it would take between 100 and 250 pills to get this sentence.
For those with between 14 grams and 28 grams or at least 250 pills, the sentence would be at least five years and $15,000. For 28 grams or more or 500-plus pills, the minimum sentence would be 10 years and a $25,000 fine.
No parole would be offered to those serving these minimum sentences.
A second conviction would result in a minimum sentence of twice what would be required under the law.
Many committee members indicated the issue was complex and that they didn’t want to create a situation where people who were struggling with addiction were being sent to prison instead of focusing on major traffickers.
A bill that would have put in place similar penalties for fentanyl trafficking was introduced and held in committee last year.
Several of the committee members indicated they have spent the last year looking into the issue as they weighed how to handle a new proposal to address Idaho’s rise in fentanyl-related overdose deaths.
“We’ve been through it, we’ve heard a lot,” Rep. Kenny Wroten, R-Nampa, said. “... You've seen it all, and you hear the stories. Perhaps the jails are already full, is that really a reason not to deter something like this? I think we'll find the room."
Wroten made a motion to pass HB 384. Rep. David Cannon, R-Blackfoot, made a substitute motion to send the bill to the House amending order, which means the full House would be able to propose and vote on amendments to the legislation.
“I think we ought to slow down a little bit and give people an opportunity to present amendments that might make this a better law,” Cannon said.
He had concerns that, because the bill includes 4 grams of any substance that may be mixed with fentanyl, that it would mean not just dealers might fall under the category of “trafficker” under the law.
“If nothing else, let's change the language of the title of the bill and quit referring to it as fentanyl trafficking, because we are capturing into the net users, and we should not be misleading about that fact,” Cannon, who worked as a public defense attorney, said.
He said he believed the bill created a balance-of-powers issue, by not allowing for judicial discretion in sentencing in the bill. Cannon also highlighted that Idaho incarcerates at a high rate, and in 2023, the Department of Correction reported that 37% of the state prison population was sentenced on drug charges.
Rep. John Gannon, D-Boise, had concerns about the “drug-induced homicide” portion of the bill, which if a juvenile age 14 or older was charged with, they would be prosecuted as an adult automatically.
“I have serious concern about charging kids with first-degree murder, for the reason that they are immature, and I am very uncomfortable with putting them in a situation where they are punishable with up to 99 years in prison,” Gannon said.
Others, including Rep. Heather Scott, R-Blanchard, also had concerns about minors getting charged under the drug-induced homicide portion of the bill.
Scott added that she thought that state government wouldn’t be able to address the root of the problem, which is “a deeper problem of moral decay.”
Reps. Julianne Young, R-Blackfoot, and Marco Erickson, R-Idaho Falls, indicated they still had concerns with the bill but would support it because of the nature of the issue.
“It’s our obligation to do something, we don’t always know the solutions,” Erickson said. “And they aren’t always perfect.”
Erickson, who has worked as a mental health professional specializing in addiction, said he hopes there will also be more work done on prevention. When discussing the “powerful issue,” Erickson’s voice cracked with emotion as he indicated he’s “very passionate about this.”
Rep. Dan Garner, R-Clifton, made an amended substitute motion — which is the third and final different motion that can be made on a bill before a vote is taken — to send the bill to the House floor with no recommendation.
Initially, the roll call vote on the motion to send the bill with no recommendation to pass or reject was 13-5, but Rep. Barbara Ehardt, Erickson and Rep. Chris Allgood changed their votes from “no” to “yes,” indicating they wanted to show support for the bill once it became clear that the motion to send with no recommendation would pass.
The final vote was 16-2, with only two Democrats, Reps. Chris Mathias, Boise, and Don Cobberly — who is filling in as a substitute for Rep. Colin Nash — voting no.
EXISTING STATE AND FEDERAL MANDATORY MINIMUMS FOR DRUG CRIMES
Both sponsors, Lakey and Rep. Ted Hill, R-Eagle, argued that Idaho’s existing mandatory minimums for trafficking marijuana, cocaine, methamphetamine and heroin are effective deterrents to drug dealers.
In addition to state drug laws, there are also federal mandatory minimum sentences, and these include provisions for fentanyl trafficking.
The minimum prison sentence for fentanyl starts at 40 grams of the drug or about 400 pills, which would carry a five-year prison sentence. The steeper mandatory minimums require showing distribution of the drug or intent to distribute; HB 384 does not include language that would require showing intent to distribute.
Federal law also includes “safety valves,” in which the minimum sentence wouldn’t need to apply under certain circumstances, such as the person hasn’t committed a violent crime and they cooperate with prosecution to help arrest other traffickers.
Drug-related arrests are often made in cooperation between local law enforcement and federal Drug Enforcement Administration officers. Sometimes, local prosecuting attorneys will lead the case, in which case state laws would apply.
Sometimes, the cases are referred to the U.S. Attorney for the District Idaho office, in which case federal laws would apply.
In September, the federal district attorney’s office announced people involved in two drug trafficking cases in Southern Idaho were sentenced, including one person who was in possession of around 3,000 fentanyl pills with intent to distribute. Jason Lee Elsberry, 40, of Caldwell, was sentenced by U.S. District Judge Amanda K. Brailsford to 6½ years in federal prison to be followed by four years of supervised release for the possession with intent to distribute fentanyl.
This article originally appeared in the Idaho Press, read more on IdahoPress.com.
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