An Idaho law targeted fentanyl dealers. Prosecutors are using it to charge users, too

When two Idaho lawmakers pitched harsher penalties for people caught with fentanyl, they said the new law would target drug dealers — not those struggling with addiction. 

But two years after the law was implemented, prosecutors have charged at least 30 people with fentanyl trafficking without presenting evidence that they were dealing or distributing the drug.

The law, which went into effect on July 1, 2024, does not differentiate between those using and those selling the drug, and it doesn’t require prosecutors to find evidence of trafficking. Instead, prosecutors can charge people with fentanyl trafficking if they possess at least 4 grams or 100 pills that contain fentanyl. InvestigateWest reviewed court records for all fentanyl trafficking charges filed through June 30 of this year. Among the 90 cases that included arrest reports, one-third of them 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. But 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. 

A sheriff 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, according to the police report. 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 Berger to police. Less than three months later, Berger died of fentanyl poisoning. The detective who investigated Berger's death said there was no evidence that he was planning to sell or distribute the drugs, which Berger’s mother brought to the hospital in an effort to help healthcare workers save her son. 

Prosecutors who supported the law during legislative debates continue to defend it, saying it deters drug dealers from bringing fentanyl into the state, though none provided evidence to support the claim. Fifteen people charged with trafficking fentanyl were accused by police of selling drugs to an informant or admitting they sold drugs. Seven of them were convicted and are serving time in prison.

“Treatment is not the right outcome for every case,” Bonneville County Prosecuting Attorney Randy Neal 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, who has been a vocal advocate of the law, pointed to a graphic originating from the U.S. Drug Enforcement Administration widely shared by prosecutors and law enforcement showing a No. 2 pencil with 2 milligrams of fentanyl powder on the tip, which 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.” 

Opponents of Idaho’s law disagree. Kellen Russoniello, director of public health for the Drug Policy Alliance, which advocates for drug treatment instead of criminalization, 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 100-pill threshold.

Russoniello said state lawmakers could save lives by diverting more people to treatment. InvestigateWest’s analysis revealed that 13 people charged with trafficking 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 being convicted of the trafficking charge or pleading guilty to an alternative charge.

“This law is ensnaring people who are possessing for personal use,” Russoniello said. “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 will make accessing housing, employment, and services more difficult.”

‘A sledge hammer’

Republican state legislators Rep. Ted Hill and Sen. Todd Lakey introduced the law at a January 2024 hearing. Fentanyl possession and intent to deliver were already felonies with the possibility of prison — a decision that was typically made by judges. 

But House Bill 406 added a new 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. The lawmakers, 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 fentanyl trafficking law went into effect in 2024, deaths had begun to decline. Last year saw the same number of fatalities as 2024, according to the data. (Lakey and Hill did not respond to calls and messages from InvestigateWest for this article.) 

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. 

Two years after Idaho’s law took effect, prosecutors across the state have charged 134 people with fentanyl trafficking, InvestigateWest’s analysis of court records found. Thirty-one of those cases are still pending. 

Of the completed cases, 30% were dismissed and nearly half resulted in plea deals for other charges, such as 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.  

When attorney Mike French opposed the law on behalf of the Idaho Association of Criminal Defense Lawyers during a legislative debate, she said it’s drug users, not traffickers, who are getting caught up in the state’s mandatory minimum laws for marijuana, cocaine and heroin trafficking. Laws like this do not effectively deter people struggling with addiction, she said, because they’re typically unaware of the potential criminal penalties or are unable to stop using without help. 

“This is a sledge hammer when we need a scalpel,” French said. 

Idaho’s fentanyl trafficking law continued a decades-long trend where state lawmakers have sought 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 and 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. 

Russoniello, public health director at the Drug Policy Alliance, said lawmakers across the country are in “a moment where the pendulum is swinging back towards tough-on-crime and the war-on-drugs mentality.” 

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, Russoniello 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, giving the power instead to “the party that has a self-interest of pursuing harsher punishments in every case.” 

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.” 

Berger was the first person in Latah County to be charged under the new law. 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. But Berger’s health rapidly declined, and he died at home two months later from fentanyl poisoning – one of two Idahoans who fatally overdosed while their case was pending.

Looking for help

Fentanyl trafficking charges have been filed by prosecutors in 18 of Idaho’s 44 counties. Six counties account for more than 75% of the charges. 

In eastern Idaho near the Wyoming border, prosecutor Neal’s office in Bonneville County has filed 28 charges — more than any other county. One person was convicted of the charge. Sixteen others accepted plea deals for other charges including possession and delivering a controlled substance. Interstate 15, which runs from northern Montana to Southern California, cuts through the county and is a known drug pipeline, Neal said. He also credits a drug task force that’s a collaboration between the county sheriff’s department and Idaho Falls police with successful arrests and prosecutions.  

“The effectiveness of the law enforcement is what you're seeing the numbers reflect,” Neal said when presented with InvestigateWest’s findings. “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. Meanwhile, 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.”  

Multiple overdoses had been reported at Andrea Forbini’s home in Boise by the time police showed up with a search warrant in May 2025, according to court documents. They 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 the pain she experienced from autoimmune conditions. She had recovered from an overdose weeks before being arrested last year. Over Lillquist’s objections, Forbini’s boyfriend bailed her mom 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 mom, who have committed a crime. But in states like Idaho that increase penalties without addressing the addiction, nothing will change. 

Jail kept Forbini sober for about three months, but without addiction treatment she relapsed after her release, Lillquist said. One week later, her mom 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.”