Idaho lawmakers want mandatory sentences for fentanyl; what to know about the bill

BOISE (Idaho Statesman) — Idaho lawmakers are pushing forward a bill that would add mandatory prison sentences for people trafficking fentanyl, a proposal proponents have said targets drug dealers and would deter them with longer incarceration time.

But attorneys say the bill would also target drug users, even those who didn’t know they bought fentanyl.

The bill, House Bill 406, doesn’t limit the drug trafficking charge to those who deliver or manufacture the drug; anyone who brought a certain amount of fentanyl into Idaho could be charged with drug trafficking. Julianne Donnelly Tzul, advocacy director for the ACLU of Idaho, told the Idaho Statesman that’s a major concern for the ACLU, which is “strongly opposed” to the bill.

House Bill 406, like all of Idaho’s drug trafficking laws, defines trafficking based on the number of drugs in someone’s possession, rather than based on the intent to traffic the drug. Donnelly Tzul said that “really shifts the due process — checks and balances — away from judges and juries and towards police and prosecutors.”

Donnelly Tzul told the Statesman it’s important for a judge and jury to look at that context and be able to decide for themselves an appropriate sentence.

“They are set up to be our impartial examiners of fact and law,” Donnelly Tzul said. “We’re turning over the definition of ‘trafficker’ to the police themselves. … That’s not due process.”

The bill would also create a drug-induced homicide crime, which could be charged for someone who provided fentanyl that caused a death.

The bill would implement the following penalties for someone convicted of fentanyl trafficking:

Anyone in possession of 4-14 grams of fentanyl or 100-249 fentanyl pills would be sentenced to at least three years in prison and a minimum fine of $10,000.

Anyone in possession of 14-28 grams or 250-499 pills would be sentenced to at least five years in prison and a minimum fine of $15,000.

Anyone in possession of 28-500 grams or at least 500 pills would be sentenced to at least 10 years in prison and a minimum fine of $25,000.

The maximum penalties are life in prison and a $100,000 fine.

The House passed the bill in a 55-13 vote. The bill will need approval from the Senate next.

Under the bill, if law enforcement authorities find a “detectable amount” of fentanyl in 4 grams of cocaine, for example, the person could be charged with fentanyl trafficking based on the entire amount of drugs. Rep. David Cannon, R-Blackfoot, expressed concern about that language and said the bill could even target marijuana users who didn’t know their drugs were laced with fentanyl.

“Because of the language of this bill … 4 grams of marijuana which are laced with fentanyl would pull a possessor into the mandatory minimum that (is) set forth by this fentanyl trafficking bill,” said Cannon said. “These are users.”

The sponsors of the bill said those claims are unfounded. Rep. Edward “Ted” Hill, R-Eagle, told the Statesman it’s a “nonfactor” because Idaho State Police hasn’t tested drugs laced with fentanyl. Sen. Todd Lakey, R-Nampa, who is also sponsoring the bill, echoed Hill’s comments.

A state police spokesperson didn’t answer a question about whether the agency had ever found other drugs laced with fentanyl. But health experts and other news reports have also commonly acknowledged that drugs have appeared laced with fentanyl. Just last year, a 22-year-old University of Idaho student died in Washington after using fentanyl-laced cocaine, the Statesman previously reported.

Reports providing information about fentanyl-laced drugs also include Gov. Brad Little’s own media campaign. The website’s facts about fentanyl, citing the Centers for Disease Control and Prevention, states that fentanyl-laced drugs is a common occurrence and warns users about how difficult it is to know.

“Without the buyer’s knowledge, fentanyl is often mixed in with other drugs because it’s potent and cheap to manufacture,” Little’s fact sheet reads. “It has been found in almost every drug, including heroin, cocaine, methamphetamine, molly/MDMA, and prescription opioid look-alike pills.”

Overdoses from stimulants laced with fentanyl have spiked 50-fold since 2010, according to an article published in September 2023 from UCLA Health.

Fentanyl-laced pot, however, doesn’t seem to be a known trend. Dr. Andrew Stolbach, an associate professor at Johns Hopkins Medicine in the Department of Emergency Medicine, told the Statesman that he hasn’t seen a case of marijuana laced with fentanyl, though he confirmed that he’s seen it with other drugs.

Hill said that even if marijuana or other drugs were being laced with fentanyl, authorities aren’t going to test them for fentanyl. He added that if someone unknowingly gave fentanyl to a friend, who then died, police and prosecutors aren’t going to target the friend because they are focused on the traffickers.

Drug traffickers “don’t like to come to Idaho for any drug” because of the state’s harsh sentences, Hill told the Statesman, but fentanyl’s “just not on the list yet.”

“We want to go after that guy who had 50,000 pills, that were sent to 10 schools and killed 10 kids,” Hill said. “That’s the objective.”

It’s not the first time state lawmakers have added mandatory minimum sentences for drug crimes. Idaho overhauled its drug laws in the 1990s to create mandatory prison sentences for anyone found in possession of a certain amount of marijuana, cocaine, methamphetamine or heroin, according to Idaho law.

The bill has garnered support from Idaho’s law enforcement community, including Ada County Sheriff Matt Clifford, who said during a legislative committee that fentanyl is the scariest drug he’s seen in his decadeslong career with the county.

“It is rare that chiefs, sheriffs, line officers and prosecutors agree on anything, and unfortunately, fentanyl is the thing that has brought us all together,” Meridian Police Chief Tracy Basterrechea said during the bill’s public hearing. “It has reeked such havoc on our community and on our vulnerable populations that we realized that we have to do something to stop them.”

But those who’ve used drugs, or have family members who’ve used drugs, had concerns.

Boise resident Todd Hogan, who said he’s a former gang member and addict, said many drug dealers have substance abuse disorders themselves. By passing the bill, lawmakers are taking away a judge’s discretion to decide whether someone is a “hardened criminal” or “someone who has made poor choices but is redeemable,” he said.

Susan Mansfield, whose son passed away from drug use, said mandatory minimums haven’t reduced drug use in Idaho and instead send people like her son to prison, where his addiction worsened.

“I wish my son would have had the opportunity to be rehabilitated instead of incarcerated,” Mansfield said.

Criminal justice experts have increasingly pushed back against the use of mandatory minimum sentences. The U.S. Department of Justice published a report that said longer sentences don’t deter crime and that prison might in fact “exacerbate, not reduce, recidivism.”

The Prison Policy Initiative, a nonprofit focused on criminal justice reform, published a briefing last month that said mandatory minimum prison sentences were ineffective.

Wanda Bertram, a spokesperson for the initiative, told the Statesman by phone that there’s a huge demand for drugs in the United States and that research shows focusing on community-based treatments is a more effective way of reducing drug use than imposing harsher penalties.

“There is a genuine crisis going on right now — fentanyl is very dangerous and people are dying because of it,” Bertram said. “But I think lawmakers on both sides of the aisle see an excuse and an opportunity to score some political points by ratcheting up punishments even though it’s not going to do anything to stop the problem.”