Proposed mandatory minimum law back in 2019 legislative session

BOISE, Idaho ー For the third year in a row, lawmakers are hearing a bill aimed at changing how judges sentence drug trafficking crimes in Idaho.

House Bill 99, co-sponsored by Democratic Representative Ilana Rubel and Republican Representative Bryan Zollinger, would remove the word “mandatory” from Idaho code related to drug trafficking charges and give judges greater discretion in issuing sentences. Additionally, the bills’ sponsors say, the proposal could free up space in Idaho’s prisons and would put Idaho’s drug trafficking laws on the same playing fields as most of the state’s current criminal code.

Judicial Discretion

Currently, Idaho lists drug trafficking as possessing a specific amount of a substance and requires a mandatory minimum sentence for that crime. For example, a person caught with two grams of heroin would be subject to a mandatory minimum sentence of three years in prison; under the same code, a person caught with a pound of marijuana must serve a mandatory minimum sentence of one year behind bars.

But, under the proposed bill, a judge could choose to issue a lighter sentence if the minimum sentence appears to be an unjust.

View the proposed bill below:



“So, a case where a judge is looking at the totality of the case and saying, ‘Wow, this person really should not be locked up for 10 years or five years,’ or whatever the statute requires, they would have some flexibility to take all the factors into account and give them a sentence that they feel was just,” Representative Ilana Rubel told KID NewsRadio.

Judicial discretion has been at the heart of this multi-year debate.In 2018, the bill passed the Idaho House of Representatives but died in the Senate. This year, Rep. Rubel and Zollinger said it’s time to “let the judges judge.”

“Last session, we co-sponsored a bipartisan bill to reform mandatory minimums, leaving recommended sentences in place but giving judges the ability to depart from the guidelines where the statute’s minimum sentence would result in manifest injustice,” according to the article “We heard eight hours of testimony, largely describing young people whose futures were destroyed by a mistake for which Idaho’s laws allow no forgiveness, rehabilitation, or redemption…We are bringing it back in 2019, and hope to cross the finish line this time.”

Let’s let the judges judge

As Idaho faces a $500 million request to expand prisons that primarily house drug offenders, and ranks in the top three states in America for the proportion of the population in prison, we can no longer afford to ignore the simple truth: mass incarceration is a costly and ineffective way to deal with drug abuse.

Rep. Rubel described the proposed judicial discretion as a very narrow carve out in the law.  In a House Judiciary, Rules and Administration meeting on Tuesday, February 5, Rep. Rubel also said she expects judges will continue to hand down sentences in line with the recommended, and currently required, minimum requirements. But, she added, judges should be given a way out if they feel a case warrants a lighter sentence.

“You can’t have an escape hatch if the word, ‘mandatory’ is still in there,” Rep. Rubel said. “The word ‘minimum’ is still in there which means that’s still really what judges are going to do…and their practices are to adhere to those minimums, but their hands aren’t as forcibly tied in iron handcuffs as when they are when the word ‘mandatory’ appears in there.”

Still, Rep. Zollinger said he and Rep. Rubel have spoken with judges who support the effort because of the latitude it gives them in cases where the mandatory sentence may not be equivalent to the crimes they see charged in court.

“I know just with our eastern Idaho judges, I’ve spoken to several of our eastern Idaho judges, technically off the record, who have been supportive of this because they know they have the tools, they have all of the information when they hear these cases to make the right decision,” Representative Zollinger said.

But, Bonneville County Prosecutor Daniel Clark said a judge isn’t as boxed in as proponents may say. In fact, he added, prosecutors also have some level of discretion when it comes to issuing their charges and building their cases.

“We’re coming at this from this notion that the prosecutor or the state, the government, doesn’t have some authority or discretion in the decision it makes,” Clark said. “A prosecutor’s role is to do justice…at the end of the day, that’s my obligation; that’s the oath that I took, that’s what I swore to do, and sometimes reducing that charge is appropriate and we’ve done that.”

Additionally, reducing mandatory minimums, Clark said, is less of a discussion about judicial discretion and more of an issue of public safety.

“The fact of the matter is Idaho is a safer place to live and raise a family because we are tough on crime,” Clark said. “So, while I understand the argument about judicial discretion, I don’t think this is what this is actually about.

Incarceration in Idaho

The debate about Idaho’s mandatory minimums for drug trafficking also comes as the state is facing an overcrowding issue in the Gem state’s prisons. In 2018, the Idaho Department of Corrections asked for an addition $500 million to expand the state’s prisons. After sitting on the Criminal Justice Reinvestment Oversight Committee through the summer of 2018, Rep. Zollinger said he sees the effort to remove the state’s mandatory drug sentencing requirements as a step in the right direction to relieve some of the burden in the state’s prisons.

“The thought of spending $500 million on a new prison, Idaho’s incarceration rates are super high,” Rep. Zollinger said. “I feel that this is one small step in the larger process of reforming the criminal justice system, to make sure the right people are in prison, that people that are a danger to society are in prison, but the rest of these people are out being productive in society.”

Idaho’s approach to drug trafficking charges is unique within the state’s own code. Rep. Rubel said only a handful of crimes have mandatory minimum sentences attached to them.

“It’s very ironic now because we don’t have mandatory minimums for any other offense just about, some offenses that I think most people would consider more serious,” Rep. Rubel said. “Offenses like arson, assault, burglary, rape, you name it. Almost any offense on the book does not have a mandatory minimum…So, I think our laws are really upside down right now and it would really behoove us from every perspective to bring the sentencing model for these drug possession offenses and drug trafficking offenses more in line with how we treat every other crime.”

But Bryan Lovell, State Lodge President of the Idaho Fraternal Order of Police, told KID NewsRadio he believes Idaho’s prisons are not full of first-time, non-violent offenders who got caught with too much marijuana.

“There’s a couple of ideas out there about these changes would make less crowding in our state prison, and that our prisons full of offenders or inmates, prisoners that have been wrong place, wrong time, first time, non-violent offenders, and we feel like that information’s been a way over exaggerated,” Lovell said. “Between us and the Prosecutor’s Association and others…we’ve just kind of found that to not be true within there.”

When it comes to the mandatory minimum discussion, Clark said he sees the issue more as a public safety concern than one of judicial discretion.

According to The Sentencing Project, Idaho ranks 11th in the nation for incarceration – higher than the national incarceration rate. But, Idaho also ranks fairly low on the crime rate scale and is in the top five safest states in the nation, according to the 2016 FBI Crime in the United States report.

State-by-State Data

The Sentencing Project compiles state-level criminal justice data from a variety of sources. Using the three tabs below, you can navigate between interactive features that allow you to access and use these data. In the State Data Map, you can roll over states for a quick snapshot of key figures from each state and click on any state to see more data.

“People want to talk about these sometimes as if they’re mutually exclusive, they’re not,” Clark told KID NewsRadio. “I would suggest that the high incarceration rate is why we have the low crime rate.”

Lovell said he views the mandatory minimums as a deterrent for those who might want to launch larger drug operations in the Gem State.

“We have narcotics detectives that have talked to prisoners and inmates, and they’ve talked to informants that talk to all of these kingpins and people involved in this drug trade and they’re waiting at our borders to come in and set up shop and do this,” Lovell said. “A lot of that threat of prison and consequences like that, that could deter their business. If it goes away, then they’re ready to come in and set up shop and get their roots made more so in Idaho.”

Still, Rep. Zollinger said removing the mandatory sentencing was the only unanimous recommendation to come from the summer committee he served on.

We heard all kinds of data, how this has affected other states, and the focus really of that committee, I would say, was on how do we get people the treatment they need to overcome,” Rep. Zollinger said. “I mean, the great majority of crimes in this state and everywhere involve the use of alcohol and, or drugs, and so that’s going to be really a focus of the state I feel in the next couple of years.”

That discussion isn’t just confined to Idaho, Clark said. The debate is part of a larger conversation happening around the nation.

Alternative Solutions

“This isn’t a conversation that’s as simple as judicial discretion or prison for drug dealers or drug offenders,” Clark said. “The conversation’s much bigger. There is a movement in our state and making an effort to decriminalize drugs…between certain factions of political ideology there is a movement to legalize drugs and how you do that…is you chip away at it. You make marijuana an infraction, you get rid of mandatory minimums, you take felonies and make them misdemeanors. You get all these ideas to just to kind of chip away at the enforcement of illegal drug activity.”

While Clark is currently opposed to the proposed removal of mandatory minimums, he also said he’s not against an open discussion with lawmakers about tweaking the law so it doesn’t scoop up those first-time offenders in sentences really meant for drug dealers.

“If there’s a question about having the wrong people target[ed] under the statute, then let’s sit down and look at tweaking the statute to fix that problem,” Clark said. “If they want to have a conversation about making sure it’s the drug dealer we’re focusing [on], fine. If the weight amount of heroin of two grams is too little by today’s standards or too small of an amount to be trafficking, well then fine. Let’s have that conversation. My concern is we’re not discussion mandatory minimums. The real push here is an effort to decriminalize or legalize drug use.”

Lovell also expressed a willingness to approach the issues lawmakers are trying to fix with this bill in a different way. As a member of law enforcement, Lovell said he is a proponent of programs to prevent drug use and trafficking, and rehabilitation efforts for those who find themselves addicted to drugs.

“If our goal is to keep people from re-offending or people from getting into that line of work in the first place and staying out of prison, then what we really need to do is reform the prisoner, reform and rehabilitate the person,” Lovell said. “So, we’re all about supporting things that educate our kids, like DARE programs and such at an early age to curb that behavior in the long run, and we’re all for programs and rehabilitation things within, you know, the jail, the court system, the prison system that help people understand that they don’t want to spend their lives in those places and they want to get out and be productive members of society.”

Which is the crossroads lawmakers find themselves at and will continue to find themselves at over the next several years, Rep. Zollinger said.

“We’re really looking about how can we rehabilitate these drug users or these addicts and really help them rather than just lock them up where we’re spending millions of dollars every year to sometimes it makes it worse when these people get out of prison,” Rep. Zollinger said. “The reincarceration rate or the recidivism rate is really high for these people. So, that was a focus of the [Justice Reinvestment] Committee, and I know going forward that will be a further focus of getting these people to treatment so we can help them become productive members of society.”

As of Tuesday, February 12, HB 99 has been referred to committee for review.