House panel votes to let judges waive some mandatory drug sentences

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BOISE — It was nearly 7 p.m. Wednesday when the House Judiciary Committee finally voted 11-6 in favor of HB 581, the bipartisan bill sponsored by Reps. Ilana Rubel, D-Boise, and Christy Perry, R-Nampa, to allow Idaho judges to vary from current mandatory minimum sentences for drug possession.

The sentences, which are now based solely on the amount of drugs involved, could vary if following them would create a “manifest injustice” and the mandatory minimum is “not necessary for the protection of the public.” It was the second of two hours-long hearings on the bill.

Representatives on the panel heard numerous stories of Idahoans with drug problems who got caught up in the system – caught with an amount that was over the limit, even if it was for their personal use – and locked away in prison for many years, even when the judge involved strongly objected and expressed deep concern that justice wasn’t being served. Some were as young as 19 or 21.

Rep. Patrick McDonald, R-Boise, a retired police officer and deputy U.S. Marshal, spoke out against the bill.

“If you don’t have the courage to say, ‘It’s the law, I followed it,’ my question to you is do you belong on the bench,” he said. “Anybody that transports drugs is in a criminal enterprise. … This is not wise, this is not wise.”

Rep. Luke Malek, R-Coeur d’Alene, also spoke passionately against the bill.

“This is not a war on drugs, this is a war on criminal enterprise,” he said. “The police chiefs are against this, the sheriffs are against this, the Fraternal Order of Police is against this, the prosecutors are against this. … Do not do this.”

Perry, who like Malek is running in a crowded GOP primary for the 1st District congressional seat rather than seeking re-election to the Legislature, told the committee, “The conversation has been are we soft on crime or are we hard on crime … when really, the conversation should be: Are we being smart on crime?”

When the law first passed, it had a clause allowing judges to exercise some discretion, but that was invalidated on appeal to the Idaho Supreme Court. In response to that decision, the Legislature decided to remove all discretion from judges; the mandatory minimum became the judge’s only choice, if a defendant is convicted of one of those offenses.

Rep. Ron Nate, R-Rexburg, said, “I’m a parent of four kids, my youngest is 14 years old, my oldest is 20. … I think they’re good kids, and I hope they make the right decisions. We’ve worked hard as parents, but there’s no guarantees what will happen. If one of my kids made a decision, hung out with the wrong friends, had in their possession the wrong amount of drugs right when the cops arrived, they are caught up in this system.” He said, “We hire judges, we elect, we appoint judges, based on their discernment and their ability to deploy discretion. So right now, with our system and a mandatory minimum sentencing structure, the discernment and the discretion is not happening. … As a parent I sympathize with parents, with grandparents who have their kids that are caught up in this system. And I sympathize with the judge that sees a manifest injustice possibly happening right before them and they can do nothing about it.”

He added, “This is not going to free those egregious drug traffickers, it’s not going to let them off the hook. … I hope we can get this done and perhaps stop some injustices that might be happening in Idaho.”

To become law, the bill still needs passage in the full House, a Senate committee and the full Senate, and Gov. Butch Otter’s approval.

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