The statute sets mandatory prison terms of three, five or 10 years
Prosecutors have charged at least 30 people under Idaho’s fentanyl trafficking law without presenting evidence that they were dealing or distributing the drug, according to a review of Idaho court records by reporter Whitney Bryen for InvestigateWest, distributed through a partnership with The Associated Press. The law, which took effect July 1, 2024, does not differentiate between people using the drug and people selling it, and it does not require prosecutors to find evidence of trafficking. Instead, anyone possessing at least 4 grams or 100 pills containing fentanyl can be charged as a trafficker. InvestigateWest reviewed court records for all fentanyl trafficking charges filed through June 30 of this year.
Republican state legislators Rep. Ted Hill and Sen. Todd Lakey introduced House Bill 406 at a January 2024 hearing, saying the new law would target drug dealers rather than people struggling with addiction. Before the change, fentanyl possession and intent to deliver were already felonies punishable by prison, and judges typically decided whether to impose a sentence. House Bill 406 added a trafficking offense that allows people in possession of threshold amounts of fentanyl to be charged as traffickers and imposes mandatory prison terms of three, five or 10 years depending on the amount.
Hill and Lakey, who represent constituents in and near Ada County, the state’s most populated county, said the change was needed to “shut down the cartels” and prevent rising overdose deaths. Fentanyl-related deaths spiked in Idaho in 2021 and reached their highest point in 2023, when the drug killed 197 people, according to data from the state Department of Health and Welfare. Each year, fentanyl was responsible for more overdose deaths than any other drug, the data shows. By the time the trafficking law went into effect in 2024, deaths had begun to decline, and last year saw the same number of fatalities as 2024, according to the data. Hill and Lakey did not respond to calls and messages from InvestigateWest for this article.
Among the 90 cases in the review that included arrest reports, one-third lacked evidence such as scales, ledgers and small bags, which when found together are commonly considered proof that someone sold or intended to sell drugs. Court records show those people were charged with trafficking and face the law’s mandatory minimum prison terms based on the amount of fentanyl police said they had.
The review also identified 15 people charged with trafficking whom police accused of selling drugs to an informant or who admitted selling them. Seven of them were convicted and are serving time in prison. In total, prosecutors across the state charged 134 people with fentanyl trafficking in the two years after the law took effect; 31 of those cases remained pending at the time of the analysis.
A police report illustrated how the possession threshold can replace a possession charge. A sheriff’s deputy in western Idaho’s Nez Perce County arrested a man for drug possession after he dropped a bag of blue pills that the deputy identified as fentanyl on the floor of a casino. After counting 111 pills, “I changed the charge from possession, to trafficking Fentanyl,” the deputy wrote in the report.
One county north, Isaac Berger was charged with fentanyl trafficking by the Latah County Prosecutor’s Office after an emergency room nurse who was treating him for an overdose reported him to police. Berger was the first person in Latah County charged under the new law; his mother had brought the drugs to the hospital in an effort to help medical workers save her son’s life. He was arrested at a hospital in the university town of Moscow in May 2025 and taken to jail. Berger and his attorney were working on a treatment plan they hoped would result in reduced charges. The detective who investigated Berger’s death said there was no evidence that he was planning to sell or distribute the drugs. But Berger’s health rapidly declined, and less than three months after he was charged — two months after his arrest — he died at home from fentanyl poisoning. He was one of two Idahoans who fatally overdosed while their trafficking cases were pending.
Latah County Prosecuting Attorney Bill Thompson, who charged Berger after his nurse called police, said limiting judicial discretion was necessary because some judges were not coming down hard enough on drug dealers. “Historically, in our part of the state, our judges have not been particularly strong on what we consider to be appropriate punishments for people who actually are dealing the drugs, not just users,” Thompson said. “So the trafficking statutes have been a really important tool in trying to get around that reluctance that we encounter on occasion with some members of the courts.”
Prosecutors who supported the law during legislative debates continue to defend it, saying it deters drug dealers from bringing fentanyl into Idaho, though none provided evidence to support the claim. “Treatment is not the right outcome for every case,” Bonneville County Prosecuting Attorney Randy Neal, who has been a vocal advocate of the law, said. “Accountability is just as important. And if you’re looking at somebody who’s distributing, who’s delivering, if you don’t have the accountability, I promise you, probation is a joke.” Neal pointed to a graphic originating from the U.S. Drug Enforcement Administration and widely shared by prosecutors and law enforcement, showing a No. 2 pencil with 2 milligrams of fentanyl powder on its tip — an amount that can be lethal. Neal said “it’s highly unlikely” that someone caught with the state threshold of at least 4 grams — about four sugar packets — of fentanyl is not planning to distribute it, “because the numbers are so insane.”
Kellen Russoniello, public health director at the Drug Policy Alliance, which advocates for drug treatment instead of criminalization, disputed that interpretation. He said it would not be unusual for someone with a severe addiction and a higher tolerance, or someone who made a bulk purchase on payday, to acquire the state’s 4-gram threshold. “This law is ensnaring people who are possessing for personal use,” Russoniello said. He said state lawmakers could save lives by diverting more people to treatment, and that prosecuting or imprisoning people instead of providing necessary health services is counterproductive, ultimately making recovery more difficult by compounding trauma and saddling people with criminal records that make accessing housing, employment and services more difficult. Lawmakers across the country, Russoniello said, are in “a moment where the pendulum is swinging back towards tough-on-crime and the war-on-drugs mentality,” and policies like Idaho’s, which allow prosecutors to charge crimes like trafficking without any evidence of trafficking or intent to sell, circumvent well-established rights granted to people entangled in the criminal justice system.
Multiple overdoses had been reported at Andrea Forbini’s home in Boise by the time police arrived with a search warrant in May 2025, according to court documents. Police found nearly 400 pills containing fentanyl and arrested Forbini and two of her roommates, police records show. Only Forbini was charged with trafficking fentanyl. Forbini’s daughter, Halle Lillquist, said her mother struggled with addiction for most of her life, leaning on drugs to treat pain from autoimmune conditions, and had recovered from an overdose weeks before her arrest.
Over Lillquist’s objections, Forbini’s boyfriend bailed her out of jail, Lillquist said. “Jail was just detox,” Lillquist said. “She wasn’t getting treatment there but at least she was sober.” Lillquist said she understands the need to punish people like her mother, who committed a crime. But in states like Idaho that increase penalties without addressing the addiction, nothing will change, she said. Jail kept Forbini sober for about three months, but without addiction treatment she relapsed after her release, Lillquist said. One week later, her mother died from fentanyl poisoning. “They shouldn’t have let her go so freely like that without any help,” Lillquist said. “Something should have been done.”
Among completed cases, 30% were dismissed and nearly half ended in plea deals for other charges, including possession of a controlled substance or possession with intent to deliver. Twenty-two people were convicted of fentanyl trafficking and are serving time in prison. The review also counted 13 people charged with trafficking who received substance-use treatment instead of prison. All of them accepted plea deals for a different charge; the law’s mandatory minimum prison terms do not allow for alternative sentences. Forty people have served time in prison after either a trafficking conviction or a guilty plea to an alternative charge.
Fentanyl trafficking charges have been filed by prosecutors in 18 of Idaho’s 44 counties, and six counties account for more than 75% of the charges. In eastern Idaho near the Wyoming border, Bonneville County prosecutors filed 28 charges — more than any other county. One person was convicted of the charge, and 16 others accepted plea deals for other charges, including possession and delivering a controlled substance. Neal credited a drug task force, a collaboration between the county sheriff’s department and Idaho Falls police, with successful arrests and prosecutions, and identified Interstate 15, which runs from northern Montana to Southern California and cuts through the county, as a known drug pipeline. When presented with InvestigateWest’s findings, Neal said, “The effectiveness of the law enforcement is what you’re seeing the numbers reflect. So, if our folks in Idaho Falls have a special drug task force, and a place like Rigby doesn’t have a task force or doesn’t have a specialized unit, well, that’s going to skew the numbers because it’s going to look like Bonneville has a hell of a lot bigger drug problem than Jefferson County. It’s just that Jefferson’s making less arrests.”
Major thoroughfares that are known routes for transporting drugs between states also cut through Bannock, Kootenai and Shoshone counties, accounting for some of the charges filed by prosecutors there. At least seven of those arrests originated from traffic stops, court records show. In Ada and Canyon counties, which have the state’s densest populations, more crime resulted in more charges. Charges in Ada County, which encompasses Boise, resulted in more fentanyl trafficking convictions than anywhere else. The Ada County Prosecutor’s Office, run by Jan Bennetts, who was elected to the position in 2016, declined requests for an interview. Alyson Outen, a spokesperson for the office, said in an email that the law “was a needed change.”
Idaho is one of nine states that allows people to be charged as traffickers based on possession above a certain threshold, according to a 2025 report by the Legislative Analysis and Public Policy Association summarizing fentanyl criminal statutes by state. Idaho’s threshold is similar to other states’, but it is the only state allowing pill counts to be used instead of grams. Seven of those states, including Idaho, have mandatory minimum prison terms.
Idaho’s fentanyl trafficking law continued a decades-long trend of state lawmakers seeking to curb drug use by sharpening criminal penalties, despite national research showing those penalties do not deter drug use. A 10-year-old U.S. Department of Justice report found that “increasing the severity of punishment does little to deter crime.” The most effective response combines law enforcement efforts that target traffickers with alternatives to prison for people who are using but not selling drugs, according to a 2018 Pew Center report titled “More Imprisonment Does Not Reduce State Drug Problems.” Drug courts, community supervision and reduced prison sentences for drug offenders in Oklahoma, Mississippi, Alaska and other states decreased prison populations and the cost to taxpayers in those states, the Pew Center found.
When attorney Mike French opposed House Bill 406 on behalf of the Idaho Association of Criminal Defense Lawyers during a legislative debate, French said it is drug users, not traffickers, who get caught up in the state’s mandatory minimum laws for marijuana, cocaine and heroin trafficking. Such laws do not effectively deter people struggling with addiction, French said, because they are typically unaware of the potential criminal penalties or unable to stop using without help. “This is a sledge hammer when we need a scalpel,” French said.
Families Against Mandatory Minimums, whose founder launched the nonprofit after her brother was sentenced to five years in prison for a drug crime, calls the practice “unjust, irrational, or counterproductive.” Katrina Baugh, the nonprofit’s national policy director, said mandatory incarceration allows increased political influence in courtrooms, by letting lawmakers and prosecutors rather than courts dictate criminal punishments. Mandatory minimum prison terms strip judges of discretion in sentencing, shifting the decision “away from the impartial adjudicator,” she said, and giving the power instead to “the party that has a self-interest of pursuing harsher punishments in every case.”