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The United States incarcerates more people per capita than any country in the world. We are in the midst of a prison crisis, and nowhere is this more apparent than Idaho. Prison overcrowding has forced our state to send inmates to private prisons in Texas at significant taxpayer expense. Counties such as Canyon struggle to find the millions of dollars in public funding necessary to build more jail space.

At a time when our elected officials are bitterly divided, Republicans and Democrats across the country are now working together to address this prison crisis. As a result of a bipartisan effort by Congress, President Trump recently signed into law the First Step Act, which, among other things, rolled back federal mandatory minimum prison sentences. Similar reform is happening in states across the country. Such measures make good fiscal sense and good public policy. Prison beds should not be occupied for years on end by non-violent, low-level drug offenders. While such offenders may deserve some level of punishment as well as rehabilitation opportunities, Idaho needs to be smart on crime – not just tough on crime.

For these reasons, in 2018, the Idaho Criminal Justice Reinvestment Oversight Committee, a bipartisan House and Senate committee, agreed that it should consider legislation that allows judges the discretion to deviate from mandatory minimum prison sentences in certain drug cases. More recently, the Idaho House of Representatives passed HB 99, a bipartisan bill which would give judges the discretion in drug cases to impose a sentence below the current mandatory minimum prison sentence if doing so is necessary to avoid a manifest injustice and does not unnecessarily endanger the public. Presently, Idaho law requires judges to sentence certain drug offenders to mandatory prison sentences even if the judge believes that doing so is unjust.

Among the many who passionately expressed their support for HB 99 were Justices Jim Jones and Wayne Kidwell, both former Idaho Supreme Court Justices and Idaho Attorneys General with decades of public service between them, and the Honorable Karen Lansing, who presided over hundreds of criminal appeals during her long tenure with the Idaho Court of Appeals. Others testifying included parents and relatives of loved ones serving long prison sentences because of drug addiction. Many other Idahoans simply showed up and filled the House Committee room in support of this logical and much needed change in Idaho’s drug laws.

Now, despite this bipartisan, widespread support and passage of this bill in the Idaho House, a single state legislator from Nampa—Senate Judiciary Committee Chairman Todd Lakey—has announced publicly that he will not give HB 99 a hearing in the Idaho Senate. If Senator Lakey holds true to this announcement, this bill will effectively die in the Senate without further debate or a vote. This unilateral decision by a single legislator is troubling and frustrates the legislative process. It is also disrespectful to Senator Lakey’s colleagues in the House and the many that spoke in favor of the bill including respected jurists who have dedicated most of their adult lives to bettering Idaho. Frankly, it is also surprising given that Senator Lakey, when he was a deputy prosecutor years ago, had a reputation for being fair-minded and reasonable. He should apply that fair-minded approach now as a legislator and allow the democratic process to run its course.

That does not mean that Senator Lakey should be prevented from voting or speaking against HB 99. That is the democratic process. Indeed many prosecuting attorneys and law enforcement, while readily admitting that those suffering from addiction can be swept up by mandatory minimums, argue that eliminating mandatory minimum drug sentences will make Idaho a “safe haven” for drug offenders. That has not proven to be the case in other states, and Idaho judges can be trusted to determine fair and appropriate sentences for drug offenders.

The “solution” to the mandatory minimum problem presently being advanced by some in law enforcement is to lower the mandatory minimum prison sentence and raise the drug weight triggering the mandatory minimum for certain drugs like heroin. This is no solution at all and does nothing to help the commercial truck driver who was hauling over 6,700 pounds of hemp through Idaho after hemp was made legal by the federal Farm Bill. This driver is now facing a 5 year mandatory minimum prison sentence. Nor does this solution help the victim of domestic violence found to be in possession of a large quantity of heroin because she knew the consequences of saying no to her abuser and she now faces a 15 year mandatory minimum prison sentence. In both situations, these individuals who may have viable defenses to these crimes are faced with an untenable choice when the prosecutor invariably offers a lesser prison sentence. They can take their chances at trial and risk being sent to prison for a long sentence, or they give up their constitutional right to trial and plead guilty to get a lesser sentence. Prosecutors well know that mandatory minimum prison sentences arm them with significant power and they are unwilling to cede this power to judges – even if it’s only to allow judges the discretion to avoid manifest injustice in sentencing as set forth in HB 99.

For our justice system to work, judges must be permitted to be judges and allowed to sentence based on the unique characteristics of each case and each criminal defendant. For our legislative system to work, legislators must be permitted to be legislators and allowed to debate and vote on important legislation which affect all Idahoans. Unfortunately, Senator Lakey is proving that these systems can be frustrated by the actions of a single legislator. We urge Senator Lakey to exercise the fairness for which he is known, allow the democratic process to work, and allow a hearing on a bill that can address our state’s prison crisis and avoid unjust results in our courtrooms. That is the Idaho way.

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Scott McKay is a criminal defense attorney at Nevin, Benjamin, McKay and Bartlett LLP in Boise. Ian Thomson is the president of the Idaho Association of Criminal Defense Lawyers, a statewide organization which represents the interests of over 400 members of the criminal defense community, and writes on behalf of its members.


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