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Until four years ago, Utah — like Idaho — used to make it a felony to possess any amount, even just traces or residues, of illegal drugs like heroin, methamphetamines, opioids or cocaine.

Idaho stuck with those laws, even as it attempted to reduce its swelling prison population by increasing treatment and improving and targeting supervision of probationers and parolees through a “Justice Reinvestment Initiative.” Utah, which also pursued justice reinvestment, did something different: In 2014 it passed sweeping legislation reducing all first- and second-time drug possession convictions from felonies to misdemeanors, and reducing more than 200 misdemeanors to citations.

Utah’s prison population dropped 9 percent from 2015 to 2017, while its crime rate declined.

“We’ve been able to save a lot of money from not sending people to prison, and then take that saved money and put it into more robust substance abuse treatment programs,” said Marshall Thompson, director of the state Sentencing Commission, which advises all three branches of Utah’s state government on criminal sentencing policy.

“It involved a pretty significant shift, not only in policy and in action, but in philosophy as well,” said Ron Gordon, currently general counsel to Utah Gov. Gary Herbert, and a key figure in Utah’s changes when he served as executive director of the state’s Commission on Criminal and Juvenile Justice. “It involved a culture change as well as a legal change.”

Utah also revised its drug court laws to open up the special courts to misdemeanor offenders, and even those not specifically convicted on drug crimes, but who were found to have addiction problems. And it invested heavily in drug treatment.

Thompson said the aim was “getting to the root cause of crime, instead of just mindlessly churning people through the system.”

With Idaho looking at the prospect of spending $500 million on prison expansions — including a new 1,510-bed state prison — state lawmakers are hoping the state has other options. But the Idaho Legislature long has taken a harsh tough-on-crime approach, favoring long prison sentences. The result: Idaho has the highest incarceration rate of any of its surrounding states, and the lowest rate of violent crime.

Rep. James Holtzclaw, R-Meridian, recently remarked, “So we’re doing something good to keep us safe.”

But Rep. Melissa Wintrow, D-Boise, said, “That doesn’t even make sense — no, no, no. We’re not doing something right in that case, no.”

DRUG SENTENCES

Both Wintrow and Holtzclaw agreed that it’s time for Idaho to re-examine its drug possession sentences and rules for what quantity of which drugs makes a felony. For most drugs, it’s any amount at all. For marijuana, it’s 3 ounces.

Just 20 percent of those newly sentenced to Idaho prisons in the past year were convicted of violent crimes. Half came in on drug offenses.

And those newly sentenced criminals weren’t even the biggest group heading behind bars in Idaho. Nearly twice as many were parole violators, and most of them had committed new felony crimes — with drug possession accounting for three-quarters of those new charges.

Thompson, from the Utah Sentencing Commission, said, “I would say that you definitely have some room to make your drug crime policy much more efficient and effective. You should do it before you build your prison, because that will actually influence the size and the design of the prison that you’re building.”

Idaho hasn’t built a new prison since 2000. Today, all its state prisons are at or above capacity, and more than 875 state inmates are being housed in county jails around the state and a private prison in Texas.

Idaho’s sentencing laws, built and added to by state lawmakers for decades in the interest of being tough on crime, have contributed to the state’s growing prison population in myriad ways.

There’s the state’s lack of any “good time” provisions, for example — inmates don’t get time off for good behavior.

“You can go in there and be just a real problem, and get out at the same time,” said Senate Judiciary Chair Patti Anne Lodge, R-Huston.

Idaho lawmakers have begun to re-examine some crimes to reclassify them as misdemeanors, and some misdemeanors to reclassify them as infractions, though they’ve not yet approved any changes in drug sentences.

“Certainly we could look at that,” said House Judiciary Chair Lynn Luker, R-Boise.

MAKING MATTERS WORSE?

Lodge said the worst-case scenario for Idaho is that it locks up minor offenders, and they come out of prison and return to Idaho communities as hardened, more-skilled criminals. “We just can’t continue to do that,” she said.

Utah had the same concern.

“That’s what the research suggests, and it’s what the data verified as well — risk levels don’t go down in prison,” Gordon said. “Typically they often go up in prison. We wanted to make sure that we were not making things worse by sending those individuals to prison.

“One of our biggest fears is that we send a low-risk offender to prison, we often see that individual come out with an increase in risk level,” he said.

Idaho, like Utah, has been consulting for several years with the Council of State Governments through its Justice Reinvestment Initiative, to try to target its resources spent on corrections where they’ll do the most good, and save cell space in prisons for the most dangerous offenders who simply shouldn’t be out in society.

At a recent presentation to Idaho lawmakers, Elizabeth Lyon, deputy director of state initiatives for CSG, noted that at least 39 states have raised the threshold for defining thefts as felonies since 2000, with Georgia, for example, raising that threshold from $500 to $1,500.

“States are not seeing a negative impact on public safety,” Lyon said. Instead, the changes really just keep up with inflation.

Luker said he’s been looking at exactly that — raising Idaho’s felony theft amount from the current $1,000. “That’s pretty low” he said. “If you’re a thousand-dollar thief, you’re a felon.” That could be someone who steals a mountain bike, for example.

“Nobody wants to wink at that,” Luker said. But misdemeanor crimes can bring up to a year in jail. Felonies send offenders to state prisons, often for years.

Wintrow asked, “What makes a felony? Are we incarcerating the right number of folks for the right crimes?”

Utah officials were very surprised when they took a “deep dive” into the data about their prison population. “We did a bunch of research and we found out that a significant amount of our prison inmates were first-time, non-violent drug offenders,” Thompson said. “So that seemed like an area we could improve upon.”

Utah’s reforms include “to try to keep someone who is just a drug user from going to prison, instead get them as quickly as possible into drug treatment,” he said.

SKEPTICAL OF CHANGES

Idaho prosecutors and law enforcement have been deeply skeptical about such changes.

Grant Loebs, who has been the Twin Falls County prosecutor for nearly 20 years, sees Idaho’s prison population statistics as “very skewed.”

“Those who go to prison are multiple offenders, especially drug offenders with a long list of other, worse crimes on their records,” he said in an email. “Drug dealers go to prison on their first offense if they are dealing in large amounts. Small amount dealers rarely go to prison.”

But Idaho’s courts don’t track drug offenses and sentences like that. Of the inmates flowing into the state’s prisons on drug convictions, there’s no data on which drug they were involved with, whether or not they were repeat offenders, or if they also had other crimes on their records.

Under current Idaho law, a first-time offense of possession of illegal drugs, from methamphetamine to heroin, in any amount, can bring a sentence of up to seven years in prison. A second or subsequent offense can bring double that time.

Idaho judges do have discretion to sentence offenders to probation, or to drug court, in certain cases. But they also can sentence up to what the law allows.

And Idaho law sets mandatory minimum prison terms for “drug trafficking,” which is defined as possession of certain amounts of specific drugs. The amount specified for heroin, in particular, has drawn fire in recent years for being equal to what an addict might possess for a few days’ doses.

Earlier this year, the Idaho House passed legislation after extensive, hard-fought debates to allow judges to waive those mandatory minimums in specific cases, when they find that following them would create a “manifest injustice.” But law enforcement heavily opposed the bill, which died without a hearing in the Senate.

Idaho law enforcement and prosecutors were so leery of Idaho’s venture into justice reinvestment that in 2017, they pushed successfully to reverse a step Idaho had taken, to impose short-term penalties on parole violators according to a matrix. Now, far more parole violators in Idaho go back to prison.

IDENTIFY THE TRENDS

Idaho State Correctional Institution Warden Keith Yordy, who’s been with the state Department of Correction for 32 years, manages the details at the state’s 1,400-bed male medium-security prison south of Boise — from inmate counts five times a day to getting each inmate to the right bed that fits his classification, risk level and needs, and allows him to attend the programs he needs to someday qualify for parole. With the prison at capacity, there are waiting lists for popular programs like an inmate dog-training program, and managers have less flexibility to move inmates around.

“My job is to manage the prisoners with the resources they give me,” Yordy said.

Barrett Enno, a 48-year-old inmate at ISCI who’s serving life without parole for a murder committed when he was just past his 18th birthday, said, “I’ve seen people come in five, six times. They get paroled. When they come back, it’s like they don’t even care.”

Enno, who’s been behind bars for 30 years and likely will never get out, said he’s amazed by those attitudes, often from young drug offenders or gang members.

Enno doesn’t like the idea of Idaho building a big new state prison. “Building another prison — all that’s going to do is raise everybody’s taxes,” he said. “Because once it’s built, it’ll always be occupied.”

He said he wishes he could have “that one chance” to show that he’s turned his life around. “I haven’t walked on a carpet, sat on a couch in over 30 years,” he said.

Gordon, from the Utah governor’s office, said his advice to Idaho is to base any reforms on data.

“It’s so interesting how even those who’ve worked a long time in the criminal justice system make assumptions that don’t turn out to be true about what’s going on,” he said. “So it’s just critical to be able to identify trends that are happening in the state, and then to have policy makers or other stakeholders ask themselves: Is that a good trend? Are we happy with that?”

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.

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