Will Idaho’s push for mandatory minimum criminal sentences for fentanyl be a deterrent?

BOISE (Idaho Capital Sun) — Growing up on the Boise Bench, Rob Crisler was taller than most of his 12-year-old classmates and one of the few biracial students at his school. For fun, he painted designs on his shirts and hats. However, his family said local law enforcement quickly began associating him and his artwork with gangs, leading to him feeling frequently singled out.

From his teenage years until his late 40s, Crisler struggled with addiction, and he spent years in the Idaho correctional system on drug charges. In between his time in corrections, he would volunteer for the ACLU of Idaho to advocate for criminal justice reform, often testifying in front of Idaho legislators on initiatives such as increasing public defense funding; ban the box, a campaign aimed to remove the check box that asks applicants if they have a criminal record on hiring applications; and ending mandatory minimum sentences.

These issues held personal significance to him as he struggled to secure employment because of his felony convictions and often chose plea bargains to avoid serving a mandatory minimum sentence.

But Crisler struggled with recovery, and in October, he died from a fentanyl overdose.  

“I can’t imagine what he could have accomplished if he hadn’t spent years locked up in prison, a lot of it on charges that he had to take a plea bargain,” his mother, Cheryl Van De Grift-Edson, told the Idaho Capital Sun.

Despite spending years in the Idaho correctional system on plea deals, time in prison did not rehabilitate Crisler, his mother said. Instead, he struggled with mental health issues and regularly faced homelessness.  

Van De Grift-Edson hopes to continue her son’s advocacy in criminal justice, particularly as Republicans in the Idaho Legislature push House Bill 406 through the final stages of the legislative process. The bill would add fentanyl to the list of substances subject to mandatory minimum sentences.

Many officials say the bill embodies the state’s “tough on crime” policies.

“Part of the reason Idaho is a great state is because we’ve made strong, clear policy decisions that we don’t support drug dealers by making it easier for them to do business in Idaho,” bill sponsor Sen. Todd Lakey, R-Nampa, said during a hearing in the Senate Judiciary and Rules Committee. “We’re not talking about eliminating fentanyl in Idaho, we’re talking about reducing the flood.”

But critics of the legislation, including academics, criminal justice advocates and members of both political parties, argue that those policies are ineffective, impede judicial discretion, and marginalize certain groups including drug users, victims of human trafficking and women. 

Deterrence? Experts versus sponsors

In the midst of the war on drugs, the Idaho Legislature in 1992, following the lead of other states, introduced measures to deter drug trafficking within the state. These policies sought to enforce mandatory minimum sentences based on the quantities of heroin, cocaine, methamphetamine and marijuana carried by individuals. 

During the 2023 legislative session, at least 46 states introduced or enacted similar legislation to set penalties for fentanyl possession, according to the National Conference on State Legislatures. 

As reported by the New York Times, states in 2023 including Virginia codified fentanyl as “a weapon of terrorism.” In Iowa, lawmakers enacted laws that impose up to 10 years in prison for the sale or manufacture of less than five grams of fentanyl. Arkansas and Texas also joined 30 states, including Pennsylvania, Colorado and Wyoming, to enact drug-induced homicide statutes, allowing the prosecution for murder in cases where people share drugs socially that contain lethal fentanyl doses.

But studies show that practices based on deterrence, like mandatory minimums, aren’t effective, according to Boise State University professor Linsey Belisle. 

“Generally speaking, research finds mandatory minimum sentencing practices are largely ineffective at reducing crime and have greatly contributed to mass incarceration,” Belisle said in an email.  

In at least 29 states, there has been movement to ease some mandatory minimum policies — an effort that in 2019, Idaho participated in with bipartisan support that did not make it past the House. 

But today, sponsors, with the support of Idaho law enforcement, argue that adding fentanyl to the list is the next step to deter people from trafficking fentanyl in Idaho. 

During the Senate Judiciary and Rules Committee hearing, Sen. James Ruchti, D-Pocatello, questioned the bill’s co-sponsor, Rep. Ted Hill, R-Eagle, about whether he thinks it’s important to base legislation on data or if he feels comfortable with basing the effectiveness of the mandatory minimum sentences on anecdotal evidence. 

“Would you agree with me that we’re the policy makers, and so when we make these decisions for the state of Idaho, that could put more people in our prisons … that it’s important that we have done our homework and we’ve based it on data, facts and science?” Ruchti asked.

In response, Hill said he did not refer to data when drafting this bill, but that he trusts law enforcement workers’ support for mandatory minimum sentences.

“Is there a metric that I can give you a number for?” Hill said. “All you got to do is look at the TV, drive through L.A. … It’s one of the worst places I’ve ever seen. So that’s my metric, and it’s a pretty accurate one. I just can’t give any number. It’s a visual measurement.”

In a meeting with the Idaho Press Club on Tuesday, Idaho Gov. Brad Little said he was surprised that bill sponsors could not point to evidence on the effectiveness of mandatory minimums, but that he understands the message behind the legislation.  

“The one thing that the sponsors want to do is send a message to the various people that are doing the trafficking to not come to Idaho to do it,” Little said. “Are there going to be some unintended consequences? I worry about that, and I’ll have discussions when it gets closer to my desk.” 

‘I don’t have any choice’: judge transcripts show distaste for mandatory minimums

David High, a former Idaho deputy attorney general, also opposes mandatory minimum sentences. His son, who has been in prison three times on drug charges, pleaded down a mandatory minimum sentence in his most recent conviction. 

“It was very offensive to me that the sentence was, in essence, pronounced by the prosecutor, not by the judge,” High said in an interview. “The judge had no discretion to the minimum, and to me that is simply wrong.”

While judges under their judicial code of ethics cannot provide feedback on legislation that impacts their profession, Idaho judges throughout the years have spoken against mandatory minimum sentences while sentencing people on drug crimes. 

“I don’t have any choice,” First District Judge Steve Verby said in 2012 while sentencing a North Idaho man to prison after he pleaded guilty to attempting to manufacture methamphetamine.

In another case, Sixth District Judge Robert Naftz said in a 2016 sentencing for a man who pleaded guilty to trafficking heroin, that he is “not a fan of mandatory sentences.”

“I really do think you’re an example of why mandatory sentences should be abolished by the Legislature and sentencing discretion be placed back in the hands of the judge,” he told the defendant. “This is not a one-sentence-fits-all world. It requires the common sense of judges who can carefully weigh the mitigating and aggravating factors to impose sentences that best protects society, punishes, deters, and rehabilitates, but until that changes, this is what we’re left with.”

House Minority Leader Ilana Rubel, D-Boise, who previously spearheaded legislation to ease mandatory minimum policies in Idaho for seven years, said during the House debate that the bill “reeked of injustice.”

“Judicial discretion does not mean you’re soft on anything,” she told the Sun. “All it does is it gives the judges the flexibility to lock up the people who really need to be locked up and to occasionally have the option to not wake up people when they don’t think they need to be locked up.”

Rubel worked on her previous legislation with Boise-based criminal defense lawyer, Scott McKay, who in an interview, told the Sun he agreed that mandatory minimum sentences often prompt his clients—many of whom are heavy drug users with illegal drug possession charges—to choose plea bargains. And those individuals, he said, are not members of the cartel or drug kingpins.

“Fentanyl is a terrible drug,” he said. “With that said, we can trust Idaho’s judges to deal with people who are trafficking fentanyl.” 

Human trafficking victims, women among most vulnerable, opponents say

Many criminal justice academics have argued that mandatory minimum policies exacerbate racial and social disparities and fail to advance community safety. In Idaho, criminal justice advocates also argue that victims of human trafficking and women are among the most vulnerable to the legislation.

Jennifer Zielinski, the executive director of the Idaho Anti-Trafficking Coalition, told the Sun that the nonprofit estimates about 70 to 75 percent of its clients have been used as drug mules, meaning they have been forced to transport or deal drugs. The coalition’s clients include people of all ages and diverse gender identities, she said. 

Implementing mandatory minimum sentences would target many victims of human trafficking rather than their abusers who coerce them into dealing drugs, she said. 

Many human trafficking victims end up convicted of crimes, she said, pointing out that many victims coerced into drug dealing face life-threatening situations, with threats to their lives or their families if they disclose their human trafficking situation to law enforcement. Additionally, traffickers often are the ones bailing their victims out of jail, she said.

“We know that mandatory minimums have already been critical for victims,” Zielinski said. “They are convicted of the crimes, and if they’re drug related, these are the individuals who are dealing with those consequences and sitting in prison and serving that time with a criminal record.”

Erica Marshall, the executive director of the Idaho Justice Project and a defense attorney, agreed with Zielinski, adding that the bill would incarcerate more women who struggle with addiction and are victims of crimes themselves whether it be sexual abuse, domestic abuse, or victims of human trafficking. 

“For two of the last three years, Idaho has been the only state in the country where the most people in our prisons are there for a drug crime rather than a violent offense,” she told the Sun. “In every other state, the most people in prison are there for violent crimes. This percentage is even worse for women.” 

Idaho has had the highest incarceration rate for women in the nation since 2019, and the state’s incarceration rate for women is nearly three times the national average, according to data from the Federal Bureau of Justice Statistics.

“Eighty percent of women in jail in America are moms, and we know that a child is six times more likely to be incarcerated themselves when they have lost a parent to incarceration,” Marshall said. “If we really want to decrease drug use in our state, we need more resources allocated to prevention and treatment for substance use disorder.”

Flawed, bad policy: Former prosecutor speaks against ‘drug-induced homicide’ provision

In addition to concerns about who would be most impacted by the bill, Right on Crime state director Jean Fisher testified against the bill, noting that her main concern is the “drug-induced homicide” provision. 

Fisher, a former Ada County prosecutor, told the Sun the provision does not belong in House Bill 406.

“(The bill) says that if you deliver any controlled substance drug and that person dies, you could be charged for drug-induced homicide,” she said. “That could be any drug such as cocaine, heroin, marijuana. It doesn’t really have anything to do with fentanyl.”

Fisher said the provision is unnecessary, noting that manslaughter laws are already in place if someone wanted to build a case where someone was intentionally harming or passing drugs.

There are at least 25 states with “drug-induced homicide” laws, many of which include exceptions for juveniles and provide for good Samaritan — meaning individuals who are experiencing or witnessing an overdose are immune from arrest when they summon emergency services.

Under House Bill 406, Fisher is concerned the drug-induced homicide provision would disincentivize people from calling emergency services while witnessing an overdose out of fear of prosecution. 

“I don’t think that people who share cocaine, who don’t know that it’s laced with fentanyl, and their buddy dies, that that person should be subject to a homicide conviction,” she said.

Senate Bill 406 is making its way through the final stages of the legislative process. After passing the Idaho House of Representatives in a 54-13 vote on Jan. 29 and receiving a 6-3 vote with a passing recommendation from the Senate Judiciary and Rules Committee, the bill is now set to advance to the Senate floor.