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H0516................................by JUDICIARY, RULES AND ADMINISTRATION SUBSTANCE ABUSE CRIMES - Amends existing law to provide additional options for sentencing for certain substance abuse related crimes; and to include additional information required to be reported by the Supreme Court and the Department of Correction to the Legislature and the Governor regarding mental health and substance abuse treatment. 02/12 House intro - 1st rdg - to printing 02/13 Rpt prt - to Jud
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 516 BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE 1 AN ACT 2 RELATING TO CRIMINAL OFFENSES AND SENTENCING; AMENDING SECTION 37-2732B, IDAHO 3 CODE, TO PROVIDE ADDITIONAL OPTIONS FOR SENTENCING; AMENDING SECTION 4 37-2739A, IDAHO CODE, TO PROVIDE ADDITIONAL OPTIONS FOR SENTENCING AND TO 5 MAKE A TECHNICAL CORRECTION; AMENDING SECTION 19-2524, IDAHO CODE, TO 6 INCLUDE ADDITIONAL INFORMATION REQUIRED TO BE REPORTED BY THE SUPREME 7 COURT AND THE DEPARTMENT OF CORRECTION TO THE LEGISLATURE AND GOVERNOR 8 REGARDING MENTAL HEALTH AND SUBSTANCE ABUSE TREATMENT; AND PROVIDING AN 9 EFFECTIVE DATE AND APPLICATION. 10 Be It Enacted by the Legislature of the State of Idaho: 11 SECTION 1. That Section 37-2732B, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 37-2732B. TRAFFICKING -- MANDATORY SENTENCES. (a) Except as authorized in 14 this chapter, and notwithstanding the provisions of section 37-2732, Idaho 15 Code: 16 (1) Any person who knowingly manufactures, delivers, or brings into this 17 state, or who is knowingly in actual or constructive possession of, one 18 (1) pound of marijuana or more, or twenty-five (25) marijuana plants or 19 more, as defined in section 37-2701, Idaho Code, is guilty of a felony, 20 which felony shall be known as "trafficking in marijuana." If the quantity 21 of marijuana involved: 22 (A) Is one (1) pound or more, but less than five (5) pounds, or con- 23 sists of twenty-five (25) marijuana plants or more but fewer than 24 fifty (50) marijuana plants, regardless of the size or weight of the 25 plants, such person shall be sentenced to a mandatory minimum fixed 26 term of imprisonment of one (1) year and fined not less than five 27 thousand dollars ($5,000); 28 (B) Is five (5) pounds or more, but less than twenty-five (25) 29 pounds, or consists of fifty (50) marijuana plants or more but fewer 30 than one hundred (100) marijuana plants, regardless of the size or 31 weight of the plants, such person shall be sentenced to a mandatory 32 minimum fixed term of imprisonment of three (3) years and fined not 33 less than ten thousand dollars ($10,000); 34 (C) Is twenty-five (25) pounds or more, or consists of one hundred 35 (100) marijuana plants or more, regardless of the size or weight of 36 the plants, such person shall be sentenced to a mandatory minimum 37 fixed term of imprisonment of five (5) years and fined not less than 38 fifteen thousand dollars ($15,000). 39 (D) The maximum number of years of imprisonment for trafficking in 40 marijuana shall be fifteen (15) years, and the maximum fine shall be 41 fifty thousand dollars ($50,000). 42 (E) For the purposes of this section, the weight of the marijuana is 43 its weight when seized or as determined as soon as practicable after 2 1 seizure, unless the provisions of subsection (c) of this section 2 apply. 3 (2) Any person who knowingly manufactures, delivers, or brings into this 4 state, or who is knowingly in actual or constructive possession of, 5 twenty-eight (28) grams or more of cocaine or of any mixture or substance 6 containing a detectable amount of cocaine is guilty of a felony, which 7 felony shall be known as "trafficking in cocaine." If the quantity 8 involved: 9 (A) Is twenty-eight (28) grams or more, but less than two hundred 10 (200) grams, such person shall be sentenced to a mandatory minimum 11 fixed term of imprisonment of three (3) years and fined not less than 12 ten thousand dollars ($10,000); 13 (B) Is two hundred (200) grams or more, but less than four hundred 14 (400) grams, such person shall be sentenced to a mandatory minimum 15 fixed term of imprisonment of five (5) years and fined not less than 16 fifteen thousand dollars ($15,000); 17 (C) Is four hundred (400) grams or more, such person shall be sen- 18 tenced to a mandatory minimum fixed term of imprisonment of ten (10) 19 years and fined not less than twenty-five thousand dollars ($25,000). 20 (D) The maximum number of years of imprisonment for trafficking in 21 cocaine shall be life, and the maximum fine shall be one hundred 22 thousand dollars ($100,000). 23 (3) Any person who knowingly manufactures or attempts to manufacture 24 methamphetamine and/or amphetamine is guilty of a felony which shall be 25 known as "trafficking in methamphetamine and/or amphetamine by manufactur- 26 ing." Any person convicted of trafficking in methamphetamine and/or 27 amphetamine by attempted manufacturing shall be sentenced to a mandatory 28 minimum fixed term of imprisonment of two (2) years and not to exceed fif- 29 teen (15) years imprisonment and fined not less than ten thousand dollars 30 ($10,000). Any person convicted of trafficking in methamphetamine and/or 31 amphetamine by manufacturing shall be sentenced to a mandatory minimum 32 fixed term of imprisonment of five (5) years and not to exceed life 33 imprisonment and fined not less than twenty-five thousand dollars 34 ($25,000). The maximum number of years of imprisonment for trafficking in 35 methamphetamine and/or amphetamine by manufacturing shall be life, and the 36 maximum fine shall be one hundred thousand dollars ($100,000). 37 (4) Any person who knowingly delivers, or brings into this state, or who 38 is knowingly in actual or constructive possession of, twenty-eight (28) 39 grams or more of methamphetamine or amphetamine or of any mixture or sub- 40 stance containing a detectable amount of methamphetamine or amphetamine is 41 guilty of a felony, which felony shall be known as "trafficking in metham- 42 phetamine or amphetamine." If the quantity involved: 43 (A) Is twenty-eight (28) grams or more, but less than two hundred 44 (200) grams, such person shall be sentenced to a mandatory minimum 45 fixed term of imprisonment of three (3) years and fined not less than 46 ten thousand dollars ($10,000); 47 (B) Is two hundred (200) grams or more, but less than four hundred 48 (400) grams, such person shall be sentenced to a mandatory minimum 49 fixed term of imprisonment of five (5) years and fined not less than 50 fifteen thousand dollars ($15,000); 51 (C) Is four hundred (400) grams or more, such person shall be sen- 52 tenced to a mandatory minimum fixed term of imprisonment of ten (10) 53 years and fined not less than twenty-five thousand dollars ($25,000). 54 (D) The maximum number of years of imprisonment for trafficking in 55 methamphetamine or amphetamine shall be life, and the maximum fine 3 1 shall be one hundred thousand dollars ($100,000). 2 (5) Any person who knowingly manufactures, delivers, brings into this 3 state, or who is knowingly in actual or constructive possession of the 4 below-specified quantities of any of the following immediate precursors to 5 methamphetamine or amphetamine (namely ephedrine, methylamine, methyl 6 formamide, phenylacetic acid, phenylacetone, or pseudoephedrine) as 7 defined in section 37-2707(g)(1), Idaho Code, or any compound, mixture or 8 preparation which contains a detectable quantity of these substances, is 9 guilty of a felony which shall be known as "trafficking in immediate 10 precursors of methamphetamine or amphetamine." If the quantity: 11 (A) Of ephedrine is five hundred (500) grams or more; 12 (B) Of methylamine is one-half (1/2) pint or more; 13 (C) Of methyl formamide is one-quarter (1/4) pint or more; 14 (D) Of phenylacetic acid is five hundred (500) grams or more; 15 (E) Of phenylacetone is four hundred (400) grams or more; 16 (F) Of pseudoephedrine is five hundred (500) grams or more; 17 such person shall be sentenced to a mandatory minimum fixed term of 18 imprisonment of ten (10) years and fined not less than twenty-five thou- 19 sand dollars ($25,000). The maximum number of years of imprisonment for 20 trafficking in immediate precursors of methamphetamine or amphetamine in 21 the quantities specified in paragraphs (A) through (F) of this subsection 22 (5) shall be life, and the maximum fine shall be one hundred thousand dol- 23 lars ($100,000). If the quantity of pseudoephedrine is twenty-five (25) 24 grams or more, but less than five hundred (500) grams, such person shall 25 be sentenced to a term of imprisonment of up to ten (10) years and fined 26 not more than twenty-five thousand dollars ($25,000). 27 (6) Any person who knowingly manufactures, delivers or brings into this 28 state, or who is knowingly in actual or constructive possession of, two 29 (2) grams or more of heroin or any salt, isomer, or salt of an isomer 30 thereof, or two (2) grams or more of any mixture or substance containing a 31 detectable amount of any such substance is guilty of a felony, which fel- 32 ony shall be known as "trafficking in heroin." If the quantity involved: 33 (A) Is two (2) grams or more, but less than seven (7) grams, such 34 person shall be sentenced to a mandatory minimum fixed term of 35 imprisonment of three (3) years and fined not less than ten thousand 36 dollars ($10,000); 37 (B) Is seven (7) grams or more, but less than twenty-eight (28) 38 grams, such person shall be sentenced to a mandatory minimum fixed 39 term of imprisonment of ten (10) years and fined not less than fif- 40 teen thousand dollars ($15,000); 41 (C) Is twenty-eight (28) grams or more, such person shall be sen- 42 tenced to a mandatory minimum fixed term of imprisonment of fifteen 43 (15) years and fined not less than twenty-five thousand dollars 44 ($25,000). 45 (D) The maximum number of years of imprisonment for trafficking in 46 heroin shall be life, and the maximum fine shall be one hundred thou- 47 sand dollars ($100,000). 48 (7) A second conviction for any trafficking offense as defined in subsec- 49 tion (a) of this section shall result in a mandatory minimum fixed term 50 that is twice that otherwise required under this section. 51 (8) Notwithstanding any other provision of law, with respect to any per- 52 son who is found to have violated the provisions of this section, adjudi- 53 cation of guilt or the imposition or execution of sentence shall not be 54 suspended, deferred, or withheld, nor shall such person be eligible for 55 parole prior to serving the mandatory minimum fixed term of imprisonment 4 1 prescribed in this section. Further, the court shall not retain jurisdic- 2 tion. 3 (b) Any person who agrees, conspires, combines or confederates with 4 another person or solicits another person to commit any act prohibited in sub- 5 section (a) of this section is guilty of a felony and is punishable as if he 6 had actually committed such prohibited act. 7 (c) For the purposes of subsections (a) and (b) of this section the 8 weight of the controlled substance as represented by the person selling or 9 delivering it is determinative if the weight as represented is greater than 10 the actual weight of the controlled substance. 11 (d) A person guilty of an offense determined by the court to be primar- 12 ily the result of addiction may be sentenced pursuant to section 19-2513, 13 Idaho Code, if a treatment plan pursuant to section 19-2524, Idaho Code, is 14 included as a condition of the sentence. 15 SECTION 2. That Section 37-2739A, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 37-2739A. MANDATORY MINIMUM PENALTY. Any person who is convicted of vio- 18 lating the felony provisions of section 37-2732(a), Idaho Code, by distribut- 19 ing controlled substances to another person, who is not subject to a fixed 20 minimum term under section 37-2739B, Idaho Code, and who has previously been 21 convicted within the past ten (10) years in a court of the United States, any 22 state or a political subdivision of one (1) or more felony offenses of deal- 23 ing, selling or trafficking in controlled substances on an occasion or occa- 24 sions different from the felony violation of section 37-2732(a), Idaho Code, 25 and which offense or offenses were punishable in such court by imprisonment in 26 excess of one (1) year, shall be sentenced to the custody of the state board 27 of correction for a mandatory minimum period of time of not less than three 28 (3) years or for such greater period as the court may impose up to a maximum 29 of life imprisonment. The mandatory minimum period of three (3) years incar- 30 ceration shall not be reduced and shall run consecutively to any other sen- 31 tence imposed by the court. 32 A person guilty of an offense determined by the court to be primarily 33 the result of addiction may be sentenced pursuant to section 19-2513, Idaho 34 Code, if a treatment plan pursuant to section 19-2524, Idaho Code, is included 35 as a condition of the sentence. 36 SECTION 3. That Section 19-2524, Idaho Code, be, and the same is hereby 37 amended to read as follows: 38 19-2524. SUBSTANCE ABUSE AND MENTAL HEALTH TREATMENT. (1) When a defend- 39 ant has pled guilty to or been found guilty of a felony, or when a defendant 40 who has been convicted of a felony has admitted to or been found to have com- 41 mitted a violation of a condition of probation, the court, prior to the sen- 42 tencing hearing or the hearing on revocation of probation, may order the 43 defendant to undergo a substance abuse assessment and/or a mental health exam- 44 ination. 45 (2) If a substance abuse assessment ordered pursuant to this section 46 indicates that the defendant is a drug addict or alcoholic, as those terms are 47 defined in section 39-302, Idaho Code, then the assessment submitted to the 48 court shall also include a plan of treatment. If the court concludes at sen- 49 tencing that the defendant is a drug addict or alcoholic, as those terms are 50 defined in section 39-302, Idaho Code, and if the court places the defendant 51 on probation, the court may order the defendant, as a condition of probation, 5 1 to undergo treatment consistent with the plan of treatment, subject to modifi- 2 cation of the plan of treatment by the court. 3 (3) (a) If a mental health examination is ordered pursuant to this sec- 4 tion, the report of the mental health examination shall include the fol- 5 lowing: 6 (i) A description of the nature of the examination; 7 (ii) A diagnosis, evaluation or prognosis of the mental condition of 8 the defendant; 9 (iii) An analysis of the degree of the defendant's illness or defect 10 and level of functional impairment; 11 (iv) A consideration of whether treatment is available for the 12 defendant's mental condition; 13 (v) An analysis of the relative risks and benefits of treatment or 14 nontreatment; 15 (vi) A consideration of the risk of danger which the defendant may 16 create for the public if at large; and 17 (vii) A plan of treatment if the mental health examination indicates 18 that: 19 1. The defendant suffers from a severe and reliably diagnosable 20 mental illness or defect; 21 2. Without treatment, the immediate prognosis is for major dis- 22 tress resulting in serious mental or physical deterioration of 23 the defendant; 24 3. Treatment is available for such illness or defect; and 25 4. The relative risks and benefits of treatment or nontreatment 26 are such that a reasonable person would consent to treatment. 27 (b) If the court, after receiving the mental health assessment and plan 28 of treatment, determines that additional information is necessary to 29 determine whether the factors listed above in subsection (3)(a) are pres- 30 ent, or to determine an appropriate plan of treatment, the court may order 31 an evaluation and/or recommendations for treatment to be furnished by a 32 psychiatrist, licensed physician or licensed psychologist. 33 (c) If the court concludes at sentencing that all of the factors listed 34 above in subsection (3)(a) are present, and if the court places the 35 defendant on probation, then the court may order as a condition of proba- 36 tion that the defendant undergo treatment consistent with the plan of 37 treatment, subject to modification of the plan of treatment by the court. 38 (4) Where the court has ordered either a substance abuse assessment or 39 mental health examination of the defendant pursuant to this section, the court 40 shall also order a criminogenic risk assessment of the defendant if such an 41 assessment is not provided in the presentence report. Any substance abuse 42 assessment or report of mental health examination shall, in addition to the 43 criminogenic risk assessment, be delivered to the court, the defendant and the 44 prosecuting attorney prior to the sentencing or the hearing on revocation of 45 probation. 46 (5) If the defendant is sentenced to the custody of the board of correc- 47 tion, then any substance abuse assessment, report of mental examination, plan 48 of treatment or criminogenic risk assessment shall be sent to the department 49 of correction along with the presentence report. 50 (6) The expenses of the assessments and examinations, including any eval- 51 uation or recommendations for treatment ordered under subsection (3)(a) of 52 this section, and any treatment ordered by the court pursuant to this section 53 shall be borne by the department of health and welfare. The department of 54 health and welfare shall be entitled to any payment received by the defendant 55 or to which he may be entitled for the assessments, examinations and treat- 6 1 ment, and to any payment from any public or private source available to the 2 department of health and welfare because of the assessments, examinations and 3 treatment provided to the defendant. The department of health and welfare is 4 authorized to promulgate rules for a schedule of fees to be charged to defend- 5 ants for the assessments, evaluations and treatments provided to the defend- 6 ants based upon the costs of such services and the ability of the defendants 7 to pay. 8 (7) Annually, the supreme court and the department of correction shall 9 include in their report to the joint finance-appropriations committee, the 10 senate judiciary and rules committee and the house judiciary, rules and admin- 11 istration committee and the governor information on the availability of 12 resources for sentencing alternatives outlined in this section including, but 13 not limited to, the number available and the need for the following resources: 14 (a) Adequately trained probation and parole officers; 15 (b) Transitional beds in work release centers and other residential tran- 16 sitional facilities in the seven (7) public health districts or six (6) 17 judicial districts of the state; 18 (c) Educational, psychological, vocational, mental health and substance 19 abuse programming personnel in community-based programs and in correc- 20 tional facilities, including county jails; 21 (d) Drug and alcohol assessment specialists, rehabilitation specialists 22 and case managers; 23 (e) Spaces in residential therapeutic community programs or other 24 evidence-based intensive treatment and rehabilitation programs in correc- 25 tional facilities as provided by the department of correction, or in 26 community-based settings as provided by the department of health and wel- 27 fare. 28 SECTION 4. This act shall be in full force and effect on and after July 29 1, 2008, and the amendments in Sections 1 and 2 of this act shall apply only 30 to those persons who shall commit an offense on or after July 1, 2008, and are 31 not intended to repeal or amend those provisions of the Idaho Code which apply 32 to persons committing an offense prior to July 1, 2008, which provisions shall 33 continue to apply, and further, that amendments in this act are not intended 34 to repeal or amend Sections 19-2520, 19-2520B, 19-2520C, 19-2520D or 35 19-2520E, Idaho Code. Provided that a defendant who committed an offense prior 36 to July 1, 2008, but sentenced after July 1, 2008, may voluntarily opt to have 37 the provisions of Sections 1 and 2 of this act apply to him during sentencing.
STATEMENT OF PURPOSE
RS 17856 C1
The purpose of this legislation is to provide treatment
focused alternative sentencing for certain mandatory minimum
sentences. This legislation will allow judges, where
appropriate, to sentence those whose crime was primarily the
result of addiction, to a treatment focused track so as to
more effectively rehabilitate offenders, reduce recidivism
and slow growth in Idaho's non-violent offender population.
FISCAL IMPACT
There is no fiscal impact under this legislation. There may
however be a reduction to some extent the number of
offenders sentenced to additional years in Idaho
correctional institutions under Idaho's mandatory minimum
sentences. Shorter sentences and reductions in recidivism
will free prison beds, reduce the need for prison space, and
create cost savings, while more effectively rehabilitating
offenders and returning them to productive lives.
Contacts:
Rep.Nicole LeFavour Rep. Lynn Luker Luker
Rep.Phil Hart Rep. Raul Labrador
Rep.Eric Anderson Rep. Dick Harwood
Phone: 208 724-0468
STATEMENT OF PURPOSE/FISCAL NOTE H 516