Bill Description: House Bill 234 would impose mandatory minimum sentences for possession of fentanyl, but it would make some other improvements to Idaho's drug trafficking laws.

Rating: +2

NOTE: House Bill 233 is related to House Bill 67 and House Bill 233, introduced earlier this session. House Bill 234 is the best bill on this subject and the only one with a net positive rating. 

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. 

House Bill 234 would address this problem by amending Section 37-2732B, Idaho Code, to add "with the intent to distribute to others" to several subsections relating to trafficking, thereby requiring prosecutors to prove intent. 

Unfortunately, this improved standard would not be applied to a new subsection created by this bill, involving fentanyl, which means the crime of "trafficking in fentanyl" would be based solely on the quantity possessed. The state would not have to prove any intent to distribute.

Overall, this change should make it less likely that individual possession of certain drugs (other than fentanyl) will be miscategorized as trafficking.

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Idaho's current mandatory minimum sentencing law for drug trafficking is applied "notwithstanding any other provision of law" and provides no room for judicial discretion, 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 234 would amend this language and several other subsections to apply the mandatory minimum sentences to second or subsequent offenses instead of to all offenses under this section. Judges could still impose these harsh sentences on first offenses, but they would no longer be required to do so. 

Notably, this improved standard would not be applied to the new subsection, created by the bill, involving fentanyl, which means the crime of "trafficking in fentanyl" would still carry a mandatory minimum sentence, even for a first offense. 

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House Bill 234 would amend Section 37-2732B, Idaho Code, regarding possession of heroin, to increase the threshold required to trigger the term “trafficking” and the minimum sentencing provision: It would go from 2 grams of heroin to 100 grams. It would also align the minimum prison terms for possessing heroin with those for possessing other controlled substances: 5 years for possession of 100 grams or more and 10 years for 1 kilogram or more. 

These changes make it less likely that individual possession of heroin will be classified as trafficking, but there is still no requirement for the state to prove intent to distribute.

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One of the more notable improvements to House Bill 234, compared to its predecessors, is a new requirement that "a determination of weight shall be based solely on the weight of the controlled substance itself and shall not include the weight of surrounding component materials or ingredients." 

Right now, large amounts of filler that contains trace amounts of drugs can be categorized as a large amount of drugs and used to trigger the harsh minimum sentences laid out in this law. 

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While House Bill 234 would make a number of important reforms, there are some problems with it as well. It would classify possession of certain quantities of fentanyl as trafficking and impose mandatory minimum sentencing on those convicted of violating this statute. This new prohibition would lack the reforms included for other drugs, meaning it would presume intent to distribute based on possession alone, and it would impose mandatory minimum sentences even for first offenses.

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Additionally problematic is that the mandatory minimum sentencing requirements are directly tied to the quantity of fentanyl possessed, and these quantity-based thresholds can be triggered either by weight or by the number of pills possessed: 3 years in prison and a $10,000 fine for 100 pills or more; 5 years in prison and a $15,000 fine for 250 pills or more; and 10 years in prison and a $25,000 fine for 500 pills or more. 

Although the weight issue would be clarified by this bill as discussed above, there is no definition given for how much fentanyl each pill would need to contain to trigger this provision. 

Given that the prohibition on possession of fentanyl includes "any mixture or substance containing a detectable amount of" fentanyl, it would appear that someone who possesses pills containing some other substance (either legal or illegal) but laced with trace amounts of fentanyl could be prosecuted for "trafficking in fentanyl" under this law.

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