Idaho’s fentanyl crisis is real. This bill wouldn’t help. It will certainly be abused | Opinion
Idaho’s fentanyl crisis is very real, if in its early stages. The Department of Health and Welfare reports that overdose deaths related to fentanyl doubled between 2020 and 2022.
Lawmakers’ first proposal to deal with this crisis, House Bill 406, received a hearing before the House Judiciary, Rules and Administration Committee on Friday. And it became clear that the bill is fatally flawed, if well intended.
Here are two realistic scenarios that could come to pass if lawmakers decide to enact the bill:
- A few adult friends are going away for a weekend, and they plan to use drugs. They pool their money and buy an ounce of marijuana that is spiked with a few micrograms of fentanyl. They have committed a fentanyl trafficking crime that could land each of them a 10-year mandatory minimum sentence.
- A group of 14-year-old high school freshmen decide to go to their first party, and they obtain a few pills that contain fentanyl that they plan to use there. At the party, a popular student who, unbeknownst to them, has already taken other pills asks them for one, and they give it to him. He takes it, overdoses and dies. They can all be charged with the new crime of drug-induced homicide, be tried as adults and face up to life in prison.
Opponents of the bill also pointed out that it contains no exceptions for victims of human trafficking coerced into transporting drugs or, like all mandatory minimum sentences, for any of the other extenuating factors that might make a long prison sentence unjust.
There simply are no backstops in the bill to prevent outcomes like these.
The consistent answer to this objection given by police and prosecutors backing the bill was simple: Just turn the power over to us and trust that we will use it responsibly. We issue lower charges than the allowed maximum all the time, they argued.
That’s all probably true — and it’s also a nonsensical argument. If our liberty is guaranteed only by the discretion of police and prosecutors, it doesn’t exist.
And you don’t build safeguards against abuses of power with responsible actors in mind — model police and prosecutors who reliably use their discretion in the interest of justice. You build limits on government power because of the knowledge that there will inevitably be some number of irresponsible actors — bad police and prosecutors who act out of political ambition, personal vindictiveness or other bad motives — so it’s necessary to have constraints.
This bill has almost none.
- It could count only the amount of fentanyl someone has in their possession, rather than treating whatever fillers, cutting agents, or other drugs it’s mixed with as if they were also fentanyl. It doesn’t. A pound of baking soda containing the lowest detectable trace amount of fentanyl is counted as a pound of fentanyl.
- It could require that prosecutors prove the person had the intent to distribute rather than just use in order to support a trafficking conviction. It doesn’t.
- It could allow judges to exercise discretion and consider all the facts of the case when deciding how long a sentence should be. It doesn’t.
Lawmakers should reject this approach, which will mostly allow them to do a lot of chest-pounding about how they’re fighting the fentanyl crisis during the coming election, and instead embrace solutions with some evidence of effectiveness.
A large body of research indicates that the likelihood of being caught is a bigger deterrent than the severity of the likely sentence. So the Legislature could fund more targeted enforcement of existing fentanyl laws without making sentences harsher.
And Idaho has an anemic addiction treatment infrastructure that lawmakers should work to modernize and properly fund. Traffickers go where they can make money. Money comes from addicts. Helping people break the cycle of addiction is incredibly difficult and is the only thing that will reduce the amount of fentanyl coming to Idaho. (The cost of producing fentanyl is almost nothing, so a big seizure just means another big shipment is on its way.)
This law is likely to mean more people in prison and the same amount of fentanyl on the street. That’s a pure loss. The other solutions are harder, but they might be at least marginally effective.