Bill Description: House Bill 406 would impose harsh minimum sentences for possessing fentanyl, including small amounts of substances containing only trace amounts of fentanyl.

NOTE: House Bill 67, introduced during the 2023 legislative session, partially offset its negatives by increasing the threshold required to trigger the term "trafficking" and the minimum sentencing provision for heroin. House Bill 406, by contrast, does not contain this provision and thus has a lower overall rating. This bill also sets an even lower threshold for defining mere possession as "trafficking" than HB 67, lowering the minimum quantity from 7 grams to 4 grams. 

Rating: -4

Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

Idaho law contains mandatory minimum sentencing for what it terms "trafficking" in certain controlled substances, though the definition of trafficking is based solely on the quantity possessed and does not require the state to prove any intent to distribute. 

This mandatory minimum sentencing law is applied "notwithstanding any other provision of law" and provides no room for judicial discretion regarding the propriety of a lesser sentence, saying, "adjudication of guilt or the imposition or execution of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum fixed term of imprisonment prescribed in this section. Further, the court shall not retain jurisdiction."

House Bill 406 would create Section 37-2732D, Idaho Code, to define possession of small quantities of fentanyl as "trafficking." It applies harsh mandatory minimum sentencing regardless of the circumstances or the existence of evidence showing that there was no intent to distribute. 

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There is an inherent problem in classifying possession as trafficking without requiring the existence of any evidence showing intent to distribute. This bill also disallows any degree of judicial discretion to appropriately reduce sentencing, and it also has significant problems with how it defines fentanyl. 

It says, "Any person who knowingly manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession off, four (4) grams or more of … fentanyl, … fentanyl-related substances, … or containing a detectable amount of any such substance is guilty of a felony, which felony shall be known as 'trafficking in fentanyl.'"

A plain reading of this language suggests that possessing 4 grams or more of "any mixture or substance" containing a "detectable amount" of fentanyl will be regarded as trafficking in fentanyl itself. The limit of detection for Fentanyl test strips is between 0.1 and 0.15 mcg/mL. This means that possessing just over a teaspoon of an inert substance such as flour would trigger the provisions of this law if it contained less than a single microgram of fentanyl. 

The 4-gram threshold (and other thresholds carrying even harsher sentences) are not applied to pure fentanyl but to "any mixture or substance" containing a "detectable amount" of fentanyl.

The mandatory minimum sentencing requirements are directly tied to the quantity of fentanyl possessed, but these quantities are measured using the problematic standard discussed above. The mandatory minimum sentencing requirements can also be triggered by possessing certain quantities of pills: 3 years in prison and a $10,000 fine for 100-249 pills; 5 years in prison and a $15,000 fine for 250-499 pills; and 10 years in prison and a $25,000 fine for 500 pills or more.

As with the weight standard, there is no clear definition of how much fentanyl each pill would need to contain to trigger this provision. It appears the flawed "detectable amount" standard would be applied, which means someone who possesses pills containing some other substance (either legal or illegal) that is laced with trace amounts of fentanyl could be prosecuted under this law.

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In addition to imposing harsh mandatory minimum sentences even on first-time offenders, House Bill 406 says a second offense "shall" result in a doubling of the mandatory minimum fixed term otherwise required. This could result in someone being sentenced to 20 years in prison for possessing less than a single dose of fentanyl mixed into half a tablespoon of inert filler with no evidence whatsoever of intent to distribute. 

The bill also applies the same mandatory minimums to "any person who agrees, conspires, combines, or confederates with another person or solicits another person to commit an act prohibited" by this law. 

This language is revealing because merely attempting to purchase fentanyl for one's own use could be considered soliciting another person to engage in trafficking. This would subject a user to the same penalty as a distributor. Once again, we see that this law is intended to blur the lines between actual trafficking and possession for personal use.

The bill also allows for sentences of up to life imprisonment and fines of up to $100,000, penalties that are more severe than those received by many convicted murderers and rapists. 

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House Bill 406 would create Section 37-2734D, Idaho Code, to define a new felony of "drug-induced homicide" and provide for an "indeterminate term of life" imprisonment and a fine of up to $25,000. 

This newly defined crime goes far beyond fentanyl-related deaths, applying to all controlled substances, if the accused is found to have manufactured, delivered, or possessed and then "provided" the controlled substance to the person who died. 

The standard would apply to any person who died "as a result of the injection, inhalation, ingestion, or administration by any other means of any amount of such controlled substance."

Of note, this "any amount" standard could apply even in cases involving what is typically a non-lethal dose of a controlled substance, such as someone having a fatal allergic reaction. It could also apply in cases where a nonhazardous controlled substance such as marijuana was laced with a lethal substance without the knowledge of the person providing it. 

Under this statute, someone could be convicted of "drug-induced homicide" and face life in prison without the state being required to provide any evidence of intent to cause death on the part of the accused.

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