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. 

Reforming Idaho’s mandatory minimum sentencing laws for drug offenders is the most obvious place to start, as it will not only save taxpayers money but also improve the quality of justice.  Republican Sen. Mike Lee of Utah and Democratic Sen. Cory Booker of New Jersey just made headlines for their bipartisan bill reforming harsh mandatory minimum sentences for federal drug offenders. Some of us here in Idaho have been working across party lines supporting this long-overdue reform at the state level for years, and it may finally happen in the 2019 session.

Mandatory minimum sentences right now are absolute.  Idaho’s drug “trafficking” laws do not require actual selling -- merely possession of specified drug amounts.  Therefore, even if you have no prior record and aren’t selling drugs, you can be guilty of “drug trafficking” and automatically get one to 30 years in prison, depending solely on volume and type of drugs involved.  Period.  The judge has no ability to look at the circumstances or individuals involved. 

Drug offenses are treated unlike virtually every other offense in Idaho, where judges typically can look at the facts and set appropriate sentences.  Judges have sentencing discretion even for very serious crimes like rape, arson, human trafficking, second degree murder, even cannibalism! We agree that drugs are dangerous, but is drug possession really a more serious crime than murder?  Indeed, those drug offenders currently locked up under mandatory minimums are hardly the most hardened criminals in society – 83% have no violent history, and 91% are first time “traffickers.” 

When the Legislature passed Idaho’s mandatory minimum sentencing laws back in 1992, the goal was deterrence – if potential offenders knew drug sentences would be harsh and unavoidable, they would refrain from using and trafficking drugs.  In the 26 years since, Idaho’s drug offense rate per capita has climbed 640%, making it hard to argue that this law deterred much. 

Moreover, numerous states have reduced or eliminated mandatory minimum drug sentences and have not seen crime spike – in fact most saw a decrease in crime.  Long sentences for non-violent drug offenders can actually increase crime rates by taking people who could otherwise be rehabilitated, breaking their community ties and leaving them less able to obtain lawful employment upon release. This is especially true when, as is now happening, offenders are shipped out of state and far from family due to prison overcrowding. 

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.  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.

While the current law may have intended to target operators of massive drug operations, it was clear that very few “kingpins” are actually jailed in Idaho – ordinary citizens are more often caught in this net.  In March 2018, our bill passed the Idaho House of Representatives with a bipartisan supermajority, but was not allowed a Senate vote.  We are bringing it back in 2019, and hope to cross the finish line this time. A consensus is growing that there are better ways for Idaho to spend $500 million than expanding prisons to jail addicts.

Idaho judges are elected by the people, and we have never  heard of an Idaho judge winning election by being “soft on crime.” We vote for individuals whom we trust to deliver fair and reasonable sentences for almost every crime you can think of, except drug trafficking.  Giving judges discretion does not preclude harsh punishment where appropriate. There are some truly dangerous criminals out there, and judges can always throw the book at them with sentences far exceeding the current minimums where warranted. 

While Idaho had good intentions 26 years ago, it’s time we made a decision based on what we know today. Idaho’s mandatory minimums for drug crimes generate real injustice and expense, with little if any deterrence. Let’s give judges the flexibility to do what’s right – let’s let judges judge. 

Democratic Rep. Ilana Rubel is the House assistant minority leader and represents District 18. Republican Rep. Bryan Zollinger represents District 33.