The Price Of Punishment Pressured To Fill Prisons Idaho Legislators Pass Tougher Laws, Sentencing Standards By Popular Demand

When the Idaho Senate passed tough new drunken driving legislation this year, one of the few lawmakers to vote “no” left the Senate floor in tears.

Sen. Shawn Keough had voted her conscience. But supporters suggested during the debate that anyone against lowering the drunken driving threshold from .10 percent blood alcohol to .08 didn’t favor public safety.

The Senate gallery was packed with the family members of people killed by drunken drivers.

“There was somebody I knew up there whose mother had been killed,” said Keough, a Sandpoint Republican.

It’s in this kind of charged atmosphere that Idaho crime law is created and debated. Lawmakers take pride in supporting tough-on-crime laws. Mentioning costs of the legislation seems crass.

“If we have longer sentences, we have them for a reason,” said Senate President Pro-tem Jerry Twiggs. “The reason is to keep the bad people off the streets and to protect the public.”

Taxpayer spending on prisons is rising so rapidly that lawmakers eventually may be forced to increase taxes or cut other parts of the state budget, most of which goes to education.

Idaho legislators in the past two decades have passed more than a dozen laws setting mandatory minimum sentences for specific crimes. But instead of targeting violent crimes, such as murder, rape or assault, nearly all of them deal with drugs, alcohol or driving.

Lawmakers eliminated time off for good behavior in prison. And every year, they add a few more crimes to the books.

At a minimum

Idaho’s prison sentencing system calls for judges to set an absolute minimum term, along with a maximum term. No one can be released on parole until he or she has served the full minimum.

Nevertheless, Idaho residents have pressed lawmakers for even tougher laws. Popular mandatory minimum sentence laws - which allow the Legislature, rather than the judge, to set the lowest minimum term - have been enacted for such hot-button crimes as repeat child molesting and drunken driving.

“There’s public pressure to address those,” said Twiggs, a mild-mannered farmer who’s in his fifth year as the leader of the Senate. “It’s pretty hard for the public to influence a judge, but they can sure influence the Legislature.”

A fifth of Idaho’s prisoners are serving time for crimes with mandatory minimum sentences. Housing those prisoners costs more than $15 million a year - enough to build three elementary schools.

When lawmakers wrestled with mandatory minimums for repeat child molesters, survivors of abuse filled legislative hearing rooms to provide graphic, wrenching testimony. Lawmakers who opposed the idea, saying sentencing should be left to judges, were accused of sympathizing with molesters. Motives were questioned.

More recently, anti-drunken driving activists have been a strong presence at the Legislature. Idaho has enacted four mandatory minimum sentence laws dealing with drunken driving.

“Some of it’s the temper of the times, some of it’s who was able to pitch their case in a very public way,” said political historian Randy Stapilus, who has followed the Idaho Legislature for the past 20 years.

“Twenty years ago there was no such group as Mothers Against Drunk Driving, though there was certainly a DUI problem. The laws started to change when organized groups started to spring up.”

With concern over drugs growing in recent years, Idaho lawmakers have passed seven mandatory minimum sentence laws about drugs.

Stapilus said the same thing happens in legislatures across the country and in Congress, particularly when there’s a high-profile case. When basketball player Len Bias died of a cocaine overdose, he said, congressional leaders began discussing a new drug law the very next day.

Hubert Locke, chairman of the Washington state Sentencing Guidelines Commission, said he sympathizes with politicians who are under public pressure to respond to high-profile crimes.

“But in the final analysis, it seems to me sentencing policy is best made when it’s made as far removed from that kind of public anecdotal pressure as possible,” Locke said.

Idaho had no mandatory minimum sentence laws before 1978, when an amendment to the state Constitution was approved to allow them. The amendment required the new laws to use the term “mandatory minimum.”

A computer search of Idaho’s state statutes turns up 14 laws containing that phrase. All but one - on repeat child molesters - deal with drinking, driving or drugs.

One sets a mandatory minimum sentence of 30 days in jail for causing great bodily harm while operating a boat under the influence of alcohol or drugs, with a maximum term of five years in prison.

Another sets mandatory minimums of three, 10, or 15 years in prison for heroin trafficking, depending on the amount of heroin involved. A second offense brings twice the mandatory minimum.

Trafficking in chemicals that are key ingredients of methamphetamine brings a mandatory minimum of 10 years in prison, with the maximum a life sentence.

Lawmakers who head the judiciary committees in the House and Senate oppose adding new mandatory minimums, in favor of leaving sentencing to judges. But the Senate chairman, Denton Darrington, R-Declo, said he’s not inclined to remove any of the existing laws.

Darrington, a farmer and teacher who’s known for his buzz-cut hair and no-nonsense style, said, “I’m sure they’ll probably stay on the books.”

Filling the law books

Lawmaking adds up. That’s why Idaho’s law books get a little bigger every year.

Idaho legislators have created more than 50 new crimes in the past 10 years, two-thirds of them felonies.

Some are just more specific or enhanced penalties for things that already were illegal, such as the 1997 law against interfering with lawful mining or agricultural operations.

Others outlaw acts that are possible with new technology. Still others are simply things previous legislators never thought of, such as the 1990 law banning cannibalism.

“There’s been a very widespread tendency to hear of some outrage, and make some sort of very facile determination that, well, if we just toughen the law, maybe we can stop this kind of thing from happening,” said Stapilus.

A 1993 law making it a felony to abandon a vulnerable adult followed the abandonment of a disoriented elderly man at the dog track in Post Falls.

Concern over the use of steroids by athletes in 1989 led to a law declaring steroids a controlled substance and making it a felony to sell, possess or distribute them to enhance exercise performance.

After a much-publicized case in Boise, a 1988 law made it a felony to intentionally transmit the AIDS virus.

Those new laws haven’t resulted in many new prisoners - at least, not yet. But the laws carry political weight and set the stage for increased prison numbers down the road.

House Speaker Mike Simpson notes that some older laws, such as cattle rustling provisions, aren’t as commonly used any more. And some new laws, such as the 1997 one banning cloning of cellular telephones, couldn’t have been anticipated.

But others, such as the 1996 law elevating a second offense of indecent exposure to a felony, up the ante for Idaho’s prisons.

“Over and over and around and around it goes, toughening the sentences,” Stapilus said, “and we wind up with more people in prison.”

Sen. Clyde Boatright, R-Rathdrum, agrees the Legislature’s actions can add up.

“But one of the things we need to keep in mind is that this is what the people of Idaho have asked the Legislature to do,” said Boatright, who is vice chairman of the Senate Judiciary and Rules Committee.

“If we’re going to back off and not put so many people in prison, the electorate has to be on board with us.”

, DataTimes ILLUSTRATION: Photo

MEMO: These 2 sidebars appeared with the story:

1. NEW CRIMES Idaho lawmakers have created more than 50 new crimes in the past 10 years, two-thirds of them felonies. Here are some of them:

Conspiring to impede lawful agricultural or mining activities, felony (1997) Unlawful possession of a bomb, felony (1997) Threatening a state official while exhibiting a firearm, felony (1996) Maliciously injuring a police horse or police or search and rescue dog, felony (1994) Shooting at an occupied home, car, trailer or camper, felony (1993) Manufacture or deliver controlled substance on premises where children are present, felony (1992) Threats against legislators or judges, misdemeanor on first offense, felony on second (1992) Cannibalism, felony (1990) Sale or possession of steroids, felony (1989) Distributing or possessing marijuana or controlled substance without a tax stamp, felony (1989) Drunken boating that causes great bodily harm, felony (1988) Tree spiking, felony (1988) SOURCES: Idaho Session Laws, staff research Staff graphic: Warren Huskey

2. THE WORST CRIMES? Idaho has 14 mandatory minimum sentences, passed by the Legislature and enacted in state law. Judges may exceed these sentences, but they can’t give any less, nor can prisoners get parole before they’ve served the mandatory minimum. Seven of the 14 set mandatory minimum jail terms, with prison as part of the maximum penalty; all seven of those address drugs, alcohol or driving. The crimes with mandatory minimum prison terms are:

1. Sexual abuse of a child Second offense of sexual abuse of a child, or attempting or conspiring to commit sexual abuse of a child - five years. 2. Marijuana trafficking Defined as manufacturing, delivering, possessing or bringing into the state certain amounts of marijuana. For 1-5 pounds or 25-49 plants, 1 year. For 5-24 pounds or 50-99 plants, 3 years. For 25 or more pounds or 100 or more plants, five years. 3. Cocaine trafficking For 28-199 grams, three years. For 200-399 grams, five years. For 400 or more grams, ten years. Maximum sentence is life in prison and a $100,000 fine. 4. Methamphetamine trafficking For 28-199 grams, three years. For 200-399 grams, five years. For 400 or more grams, ten years. Maximum sentence is life in prison and a $100,000 fine. 5. Trafficking in precursors of methamphetamine 10 years in prison and $25,000 fine. Maximum sentence is life in prison and a $100,000 fine. 6. Heroin trafficking For 2-7 grams, three years. For 7-27 grams, ten years. For 28 or more grams, 15 years. Maximum penalty is life in prison and a $100,000 fine. 7. Distributing a controlled substance, 2nd offense Second offense of distributing a controlled substance - three years. Maximum is life in prison. SOURCES: Idaho State Code, staff research Staff graphic: Warren Huskey