Idaho incarcerates more people per capita than most states—and more women than any other democracy in the world. Despite these alarming statistics, this year Idaho lawmakers passed a half dozen laws that will further burden our courts, prisons, and jails.
Throughout session, we continued advocating against punitive “solutions” to societal issues and the ongoing expansion of the carceral state, recognizing that criminal justice is a confluence of racial, economic, and social justice.
Lawmakers approved two pieces of legislation concerning the death penalty; both laws depart from norms, legal precedent, and civility.
One law makes Idaho the first and only state to use a firing squad as the primary means of execution (we are one of only five states that permit the use of a firing squad at all). The move comes after increasingly risky state death penalty practices, including several recent horrifying botched execution attempts and years-long efforts to obtain taxpayer-funded lethal chemicals, often through extraordinary and secretive means. No matter the method, execution is an ineffective form of cruel and unusual punishment. Still, implementing a firing squad as Idaho’s primary method ensures even more violent spectacles of state-sponsored homicide.
Unfortunately, lawmakers this year also approved a bill that expands the list of crimes punishable by death. The law mirrors Florida legislation currently tied up in court; both signal clear defiance of Supreme Court precedent. To be clear, Idaho’s newly expanded list of capital crimes is part of a strategic state-level pressure campaign targeting the Court; as in Florida, Idaho lawmakers have expressed open skepticism of established high court rulings against state non-homicide capital punishment laws.
This session also saw a marked increase in laws that expand state authority, punishment, and roll back protections for the accused. Lawmakers approved a law permitting warrantless searches of folks on parole, requiring them to waive their Fourth Amendment rights and consent to searches without cause and as a condition of release from incarceration. Another new law imposes a mandatory fine for possession of small amounts of marijuana, a concerning step backwards for criminal legal reform and racial justice efforts.
Idaho lawmakers also approved harsher penalties for vehicular manslaughter and, in the passage of a statewide camping ban, effectively created a new crime of being unhoused. The new statewide camping ban criminalizes houselessness, punishes the poor and runs afoul of local control (in fact local police testified against the bill) and disregards Idaho Supreme Court precedent. Crucially, the new law’s broad and vague language poses serious threats to our right to speech and protest; as written, the ban on “camping” would also apply to peaceful protests like sit-ins and die-ins.
Not all is lost on the criminal legal front. We celebrate several successes, including the defeat of a bill that would have created a new crime of “criminal libel,” with only vague and broad stipulations about the crime itself. We also defeated a bill that would have significantly expanded when the state has the right to fingerprint people and collect other biometric information.
Another bill that aimed to expand what kind of conduct qualifies as a riot was defeated—a major win for criminal legal reform and for speech and protest protections. Lawmakers also failed to increase the punishment for crimes committed against law enforcement, nor were they able to create new, strict stipulations targeting homeless shelters.
Our wins in criminal legal issues are significant on their own. But we are particularly proud of our work here because each attempt to create a new crime or increase punishment would have a substantial impact on Idaho’s already defective and broken public defense system.
Public defense in Idaho has been a priority for our team for over a decade, evidenced by our Tucker lawsuit, which was filed in 2014. This year we continued to advocate for the tens of thousands of Idahoans who represent our class of plaintiffs in Tucker. We will continue holding the state accountable for failing to uphold its constitutional duty of providing indigent defendants with legal representation.
While lawmakers did pass policy aimed to fix some glaring issues in Idaho’s public defense system, there is much work to be done. The Office of the State Public Defender must ensure the stubborn issues in its system are resolved – and that every person accused of a crime has adequate counsel.