An Idaho law targeted fentanyl dealers. Prosecutors are using it to
charge users, too
[November 05, 2026]
By WHITNEY BRYEN/InvestigateWest
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 4-gram 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.
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 “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.”
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