by Logan Finney, Idaho Reports

Lawmakers this week began the latest push to add fentanyl to Idaho’s list of substances that carry a mandatory minimum prison sentence for drug trafficking. The same committee that blocked the legislation last year heard around three hours of testimony Friday morning.

Rep. Ted Hill, R-Eagle, presented the legislation, which was just introduced on Wednesday, to the House Judiciary, Rules and Administration Committee.

“If you want to scare away the cartels, scare away the scumbags, have some laws. Put some teeth into it, and we will scare them away,” Hill said.

Hill presented House Bill 406 alongside Sen. Todd Lakey, a Nampa attorney and the chairman of the Senate Judiciary and Rules Committee.

“We have our deterrent and line of defense for trafficking in heroin, methamphetamine, and cocaine. We do not have that same deterrent, the same line of defense, against fentanyl,” Lakey said.

After public testimony, chairman Rep. Bruce Skaug, R-Nampa, said the committee had also accepted written testimony that lawmakers will review over the weekend. He plans to bring the bill before the committee again for consideration at its next meeting on Tuesday.

MINIMUM SENTENCES SET BY QUANTITY

Idaho’s mandatory minimum laws set penalties for drug trafficking charges based upon the quantity of the substances found during an arrest.

“In the last year, we had two cases with over 16 pounds of fentanyl being trafficked through our county,” Twin Falls County prosecutor Grant Loebs said. “Which was enough to kill everybody in Idaho, everybody in Montana, and everybody in Wyoming – in two stops.”

Under the bill, a person knowingly possessing and trafficking fentanyl would face a mandatory minimum prison sentence of three years for 4 to 14 grams or 100 to 250 pills; five years and a $15,000 fine for 14 to 28 grams or 250 to 500 pills; and 10 years and a $25,000 fine for over 28 grams or over 500 fentanyl pills.

The maximum sentence for trafficking fentanyl would be life in prison and a $100,000 fine. A second offense under the proposed law would result in a mandatory minimum sentence that is twice what is otherwise required under the bill.

A common criticism of mandatory minimum sentencing laws are that they take away judges’ discretion in sentencing drug cases, and increase the chances that nonviolent drug users will face harsher sentences.

“The quantities are different [than other drugs], but in this case, we know there’s no question. We are talking about dealers’ quantities,” Lakey said.  “If two milligrams [of fentanyl] is a potentially lethal dose, that is 2,000 potentially lethal doses in our minimum tier.”

The Idaho Department of Health and Welfare reported 270 opioid-related overdose deaths in the state in 2022, 49 percent of which involved fentanyl.

“We are talking about dealers, not users,” Lakey said. “Drug trafficking is not a nonviolent crime.”

The mandatory minimum sentences in the legislation would only apply if a person knowingly possessed the fentanyl. That ensures that it is truly targeting dealers and not, for example, a high school student or someone else who unknowingly consumes fentanyl that was produced to look like a fake painkiller tablet.

“We are talking about adding a dangerous drug to the list of already dangerous drugs that are already in the Idaho state code,” Ada County Sheriff Matt Clifford said.

Severe consequences would diminish criminals’ willingness to bring fentanyl into the state, supporters of the bill argued, if they knew they would potentially face higher fines and prison sentences in Idaho.

“Drug dealing is a business. This is a cash business. This makes people rich beyond your wildest imaginations. These people in the cartels make business decisions,” Loebs said.

HOW MUCH IN A MIXTURE

One of the reasons law enforcement officials are so concerned about fentanyl is the drug’s extreme potency. However, that complicates the fact that mandatory minimum sentences cover not just the amount of the drug, but the total amount of “any mixture or substance containing a detectable amount” of the drug as well.

Lawmakers and testifiers alike echoed concerns from last year about how strictly that language would be interpreted, and whether a trace amount of fentanyl in a different drug would lead to possible overblown charges. Law enforcement assured them the bill is meant to go after dealers, not users.

“The point of this language is to make sure that we defeat the cartel business model – by diluting their product by adding ingredients saying, ‘I only have this much,’” Loebs said. “No, you were going to sell this whole amount, and make this much profit, and kill this many people with it.”

PROSECUTING DEALERS FOR DEATHS

HB 406 also would create a new “drug-induced homicide” statute. If a prosecutor can prove the victim died of drug ingestion, the person who supplied the drug could face a felony conviction punishable by up to life in prison.

Jean Fisher, a retired prosecutor for Ada County and state director for Right On Crime, outlined some procedural concerns she saw with the proposed drug-induced homicide charge.

“How does it compare to what we already have in existing law?” Fisher said. “It does require a criminal act, that is the turning over of drugs, but it does not require any intent to kill. It sounds very much like involuntary manslaughter.”

She pointed out to the committee that these cases are complicated, and a person has often taken multiple illicit substances or been unknowingly exposed to fentanyl laced into another drug.

“Causation issues in drug-induced homicide is very difficult. How do you prove that the last person who gave something to someone caused their death?” Fisher said.

At its Tuesday meeting next week, the committee will consider whether to advance the bill to the House floor. HB 406 is co-sponsored by a majority of Republicans in the chamber, nine of whom sit on the 18-member committee.

If approved by the House, the bill must also make it through the Senate to reach the governor’s desk.

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