BOISE, Idaho — This article originally appeared in the Idaho Press.
Amid trepidation from lawmakers, the Senate voted 28-7 to approve mandatory minimum prison sentences for fentanyl trafficking.
HB 406 now heads to the governor’s desk for consideration.
Bill sponsor Sen. Todd Lakey, R-Nampa, argued the legislation would act as a deterrent for dealing the potent opioid in Idaho.
“Fewer deals will be done in Idaho and more lives will be saved,” Lakey said Thursday afternoon on the Senate floor.
The bill would create minimum prison sentences and fines for possessing certain amounts of fentanyl or substances with detectable traces of fentanyl, starting at three years and $10,000 for 4g or 100 pills. There is no requirement to show intent to distribute in the law.
The bill adds to Idaho’s existing mandatory minimum penalties for marijuana, meth and heroin. Lakey argued that Idaho was safe because of its strict drug laws.
HB 406 also adds a crime to Idaho’s laws called drug-induced homicide, which could be charged if someone gives another person a drug and that person dies from it. The penalty would be up to life in prison and a maximum fine of $25,000.
Debate on the bill lasted more than an hour, and many of the senators who spoke said they had gone back and forth in their decision. Those who were in favor said that even if they had issues with the bill, they felt the issue was too big to not do something. Those who opposed it said they thought it could have significant consequences for people struggling with addiction who weren’t necessarily dealing.
Lawmakers faced intense pressure from a large political action committee and law enforcement, BoiseDev reported this week.
Sen. Jim Guthrie, R-McCammon, said he found things in the bill that were “troubling,” but he decided it was a “51-49% vote” in favor.
“I’m not oblivious to the problem that we have and I’m not oblivious to the optics and the statement we need to make as a state,” Guthrie.
Sen. Dan Foreman, R-Moscow, who is a retired Moscow police officer, said in his experience, most mandatory minimums are not effective at deterring crime — however, he said drug crimes were an exception to this.
“I have talked to people high up in the food chain in the illegal drug world, they will drive around the state of Idaho rather than cross our borders,” Foreman said. “I’m not talking about your everyday mule, your ordinary poor soul who’s been lured into the illegal drug business to make a fast buck. They’ll come across Idaho and they get caught.”
Senate Minority Leader Melissa Wintrow, D-Boise, said she was concerned that people who were users would get caught up as traffickers under the legislation.
She said she visited a state women’s correctional facility and spoke to a group of 14 women who were there on mandatory minimum sentences for drugs. Wintrow said just one of them had been dealing, the others were there because of possession.
Wintrow underscored what Foreman said about kingpins staying out of the state.
“These kinds of laws are not getting the kingpins, they’re unintentionally getting the folks that are maybe addicts or are shuffling,” she said. “And that’s who gets in trouble, the people who aren’t as good at crime.”
She also highlighted data shared from the nonprofit Idaho Families for Sentencing Integrity that showed the rate of Idahoans’ drug use for substances that have mandatory minimums, adjusted for population growth, had continued to grow until 2017. Heroin use increased 38% between 2013 and 2016, the data shows.
Sen. Scott Herndon, R-Sagle, also pointed to some of this data.
He pointed out that Idaho’s incarceration rate went up dramatically after mandatory minimums were implemented in 1992 but drug use continued to rise. However, he supported the legislation because he thought it was “fair and reasonable” to treat fentanyl consistently with other drug penalties in code.
Sen. Phil Hart, R-Kellogg, was the only Republican to vote against the bill. The day before the vote, Hart had made a motion on the floor to send HB 406 back to the Senate Judiciary and Rules Committee to adjust its fiscal note to reflect that may lead to higher incarceration rates and that will cost the state money.
Hart’s motion on Wednesday failed 11-24.
During Thursday’s debate, Hart again said the state may need to build more prisons if it passes the bill and named a number of other issues he had with the legislation.
He said he met with people in a drug recovery program and every one of them at some point possessed enough pills with the drug that it would have met the threshold for a trafficking amount under the legislation.
“These were people who were just personally using the drug and not trafficking,” Hart said.
He opposed the fact that minimums would be applied when the weight of the entire mixture exceeds 4 grams, which means if someone were to drop one pill that had fentanyl in it into a bottle of water, they could face 10 years in prison, he said.
Sen. Chris Trakel, R-Caldwell, argued that even if people who were addicted and using or selling because of it, they are still violating the law. He said many of the kingpins are outside of Idaho’s jurisdiction anyway.
“We can’t go after the kingpins, but what we can do is go after the people who are here that are selling it and supplying it and using it,” he said.
Sen. Janie Ward-Engelking, D-Boise, a retired teacher, spoke about two of her former students who had been at University of Idaho when they were arrested for bringing marijuana back from across the Washington state border.
The two were sentenced to prison under mandatory minimums and eventually spent more than two years in jail.
“It’s ruined their life,” Ward-Engelking said.
Rep. Ron Taylor, D-Hailey, was the only Democrat to vote for the bill. While giving his vote, he stood to explain that he personally is opposed to mandatory minimums but he was voting yes on behalf of the people in his district who supported it.
The bill now goes to Gov. Brad Little, who may choose to sign it into law or veto it. He may also decline to sign or veto, in which case it would still go into effect without a signature on July 1.
BACKGROUND ON BILL, MANDATORY MINIMUMS
The first public hearing for HB 406 in the House Judiciary and Rules Committee resulted in three hours of testimony and a vote to send it to the floor with no recommendation.
Under the legislation, 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.
The House also spent more than an hour debating the bill, during which many representatives expressed concerns about how the bill was written, but the majority of them ultimately voted for it. The chamber voted 55-13 to approve it.
FEDERAL MINIMUM SENTENCES
Oftentimes large drug operations are charged by the U.S. District Attorney for Idaho, and federal laws include mandatory minimum sentences for fentanyl trafficking.
These minimums start at 40 grams or 400 pills and require showing an intent to distribute. The sentence starts at five years in prison, but there are “safety valves” in the federal laws. In some cases the minimum sentence wouldn’t necessarily apply, such as circumstances where the person hasn’t committed a violent crime and they cooperate with prosecution to help arrest other traffickers.
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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