Why does Idaho think its judges can't handle drug trafficking decisions?

As a former U.S. Attorney, I appreciate the importance of accountability for one’s actions. As a dad and grandfather, I also know too well the incredible effort it takes to raise successful people, which includes the heartache attached to their failings and disappointments, and the pure joy of watching them succeed. 

When children steer off course toward trouble, accountability is a key part of the lesson learned. Every parent who imposes accountability on their children does so in the hope that lessons are learned from mistakes. 

For an Idaho mom and her 18-year-old son, Steven, the hope of a lesson learned was undermined following her son’s first-time arrest on a drug trafficking charge due to a draconian Idaho law that imposed a mandatory three-year prison sentence. 

Here, accountability is devoid of any focus toward directing Steven back on course. The judge has no authority to take into consideration Steven’s previously clean record, academic turnaround, and efforts of community redemption when determining the appropriate measure of accountability.

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Being a judge is, quite literally, a practice in judgment. It’s no coincidence that it’s right there in the title. Judges are entrusted with some of society’s toughest criminal justice decisions. 

It is presumed that the role of a judge is to weigh the evidence and craft the appropriate measure of accountability in an arson, rape, or robbery case. So why doesn’t Idaho think its judges can make judgments in relation to drug traffickers and first-time offenders like Steven? 

Idaho’s criminal code tackles drug trafficking, of course, with numerous provisions demonstrating little tolerance. While the federal government—notoriously no slouch when it comes to the War on Drugs—does not consider charging trafficking until someone has 100 grams of heroin, for example, Idaho sets its bar 50 times lower at a mere two (2) grams (about a four-day supply of the drug to a typical user). And when someone hits one of these drug weight thresholds in Idaho, the prison sentence that comes with it is mandatory, no ifs, ands, or buts. Judges are powerless to rule otherwise.

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Although that might just seem like a plain reading of the word "mandatory," it’s actually a far cry from standard practice in the United States. Not all states engage in mandatory minimum sentencing, but among those that do, most follow the lead of the federal government and make a "safety valve" available. 

Legislatures from across the country have adopted safety valves because they understand, and correctly so, that they simply cannot foresee – let alone legislate around – every possible factual scenario attached to a criminal offense set forth in code.

This outlines narrow instances in which the judge can deviate from a mandatory minimum sentence if it’s in the interests of justice, such as when a defendant is non-violent, has little to no prior record, and cooperates with authorities. 

In other words, safety valves allow judges to make critical, albeit rare, judgments in those instances where the mandatory minimum sentence goes beyond its intended use. 

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Legislatures from across the country have adopted safety valves because they understand, and correctly so, that they simply cannot foresee—let alone legislate around—every possible factual scenario attached to a criminal offense set forth in code. Safety valves recognize these all too human limitations and let judges effectively tap back into the ring in these special circumstance cases. 

It’s a tag-team effort that’s especially important in drug trafficking cases due to the unreliability of drug weights as a measure of someone’s culpability or the seriousness of their conduct. To start with, anything found in or alongside an illegal drug most likely counts toward statutory weight limits, making "drug weight" something of a misnomer. 

Moreover, it is not necessarily the case that the volume of drugs a person is caught with reflects the nature of their culpability within the drug trafficking network. A kingpin or a cartel boss has more culpability than their drug mules, although you rarely find any drugs in their possession. 

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Safety valves and other provisions that reinsert a modest amount of judicial discretion allow the justice system to better tailor the measure of accountability to each defendant. If a hammer needs to drop, the judge can drop it. However, in cases where public safety is not in jeopardy, like Steven’s, judges can instead hand out a more appropriate sentence to reflect a defendant’s circumstances. This allows Steven to get back on course, instead of spending his next three years in prison, not to mention the valuable correctional resources saved in the process.

While it’s too late for a kid like Steven, the Idaho legislature has an opportunity this session to craft its own provisions to replicate the benefits of a safety valve or otherwise update its drug weight thresholds. 

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As a former prosecutor who has seen kids get off course due to involvement with drugs, I believe the nature of such offense calls for judges to do more of what they do best: judging. 

As a father and a grandfather, I believe the response to our kids’ mistakes should be aimed at ensuring their future is defined by the lesson they learned. It should not deprive them of their future. 

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