As the old saying goes, hindsight is 20-20.  Unfortunately, in Idaho, hindsight can get you 10 to 15. . . years in prison. 

Such is the legacy of our state’s mandatory minimum laws for drug offenses.  With 25 years of data in hand, hindsight now tells us that mandatory minimums for drug offenses make no sense and should be repealed.

For the uninitiated, mandatory minimum sentences are absolute.  Idaho’s drug “trafficking” laws do not require actual selling -- merely possession.  Therefore, if you commit a “drug trafficking” offense which triggers such a sentence, even if you have no prior record and aren’t selling the drugs, you automatically get between 1 to 15 years in prison depending on the volume and type of drugs involved.  Period.  End of story.  The judge has no ability to look at the unique circumstances of the case or the individuals involved. 

In this regard, drug offenses are treated unlike virtually every other offense in Idaho. For almost every other crime (including very serious crimes like rape, arson, human trafficking, second degree murder, even cannibalism!) judges have discretion to look at the facts and set an appropriate sentence.  But for these drug offenses, mandatory minimums have turned the judge into a rubber stamp.

The original theory behind mandatory minimums was deterrence – if potential offenders knew drug sentences would be harsh and unavoidable, they would refrain from using and trafficking drugs.  At least, that’s what the Legislature was told back in 1992 when they passed Idaho’s mandatory minimum sentencing laws.  Legislators further thought the drug possession volume thresholds would ensure the harshest penalties would fall on the most hardened drug kingpins running large trafficking operations.  But 25 years later, it is clear things didn’t work out as planned. Very few “kingpins” are actually jailed in Idaho, but many ordinary citizens are.

While virtually every category of violent crime dropped substantially nationwide between 1990 and 2010, drug arrests went up 80 percent.  Idaho reflects this national trend, with drug offenses climbing steadily after the imposition of mandatory minimum sentencing. The Idaho State Police reports that between 2008 and 2013, 35 percent of arrests were for drug and alcohol related offenses. But, alcohol-related arrests went down, while drug arrests increased. 

Looking at the numbers, it is clear that mandatory minimums have failed to shut down, or even slow down, the drug trade.  In fact, the only time in recent history drug cases decreased was after the Legislature passed the 2014 Justice Reinvestment Act (JRA) which promoted drug treatment over incarceration.  That legislation was designed to reserve long-term prison space for the most violent criminals as opposed to the young kid who makes a mistake.  Unfortunately, the JRA does not apply to offenders facing mandatory minimums, who must remain incarcerated for their full term at enormous taxpayer expense.

Last March, the two of us introduced a bipartisan bill to repeal mandatory minimums. We heard a judge testify that she is often required by Idaho’s mandatory minimum sentencing requirements to hand down harsh and unreasonable sentences. 

We heard about a young girl who was pressured by her boyfriend into driving with him in a car that contained drugs. Even though she had never committed a crime before and was clearly not a drug dealer, she faced having her life ruined by years of imprisonment under Idaho’s inflexible sentencing requirements.  We heard about a 17-year-old boy with no criminal record who may be locked up until he’s 32 years-old because he stupidly agreed to carry drugs in his car trunk. He may not be a hardened criminal now, but he will be after spending his entire adult life in prison. We heard many similar stories, describing young people whose futures were destroyed by a mistake for which Idaho’s laws allow no forgiveness, rehabilitation, or redemption.

Idaho elects judges at all levels of the state judiciary.  We vote for individuals whom we trust to mete out sentences in a fair and reasonable manner.  We empower those judges to do just that when it comes to almost every crime you can think of, yet we don’t allow them to set drug trafficking sentences.  Instead, we require sentences as high as 30 years.  Under Idaho’s criminal code, one can get a significantly longer mandatory sentence for heroin trafficking than for murder.  We agree that drug offenses are bad, but are they really worse than murder?  That’s probably why two dozen states have either gotten rid of mandatory minimum sentences for drug cases or reduced the penalties from felonies to misdemeanors. 

By enacting Idaho’s mandatory minimum drug sentences, the Legislature substituted its own judgment for that of judges who learn the facts of each case and hand out sentences professionally.  Judges can always throw the book at those who truly deserve it, and can hand down sentences far exceeding the current minimums where the facts warrant it.  But let’s give judges some flexibility to do what’s right, case by case. While Idaho had very good intentions 25 years ago, it’s time we made a decision based on what we  know today. Hindsight tells us Idaho’s mandatory minimums for drug crimes have run their course, and we need to let judges make fair and appropriate decisions.  In the end, this will be good for all citizens and taxpayers alike.   

Rep. Ilana Rubel is the Assistant Democratic Leader in the Idaho House of Representatives.  An attorney, Rubel represents District 18 in Boise. Rep. Christy Perry is a Republican member of the Idaho House of Representatives.  She represents District 11 in Nampa.