It was February of 2014, and Rep. Luke Malek was back to his old tricks, pushing Idaho to become even more of a police state, fighting against criminal justice reform by actively engaging in over-criminalization. For him, it was nothing new; he had been here many times before. In fact, in 2013, his dastardly proposal had come within inches of passing—it had passed the House comfortably before failing in the Senate on a tie vote.
Malek believes in the old adage of try, try again, though, and in 2014, he got his way. Simple battery (a common misdemeanor defined in Idaho law as “unlawful touching”) would be upgraded to a felony when the victim worked in the healthcare industry, and instead of facing up to six months in jail, the penalty would be increased six-fold: up to three years in prison!
In those days, I was working as a policy analyst, dutifully slogging through the muck and mire of Idaho’s legislative session, reading hundreds of bills and sounding the alarm on dozens of them. There were plenty of bad bills that year, but Malek’s police-state nightmare was one of the worst.
In some ways, the 2014 version of the bill was even worse than the 2013 version. The original had at least included a carve-out to help protect those who “lacked the ability to form the intent to commit the act because of a mental illness.” The 2014 version struck this provision and left a gaping hole in the law.
Both bills had fundamental flaws, which I explained in 2014.
Senate Bill 1351 engages in the constitutionally questionable practice of declaring that when someone commits a crime against certain persons, namely “any person licensed, certified or registered by the state of Idaho to provide health care, or an employee of a hospital, medical clinic or medical practice,” he will be subject to more extreme penalties than if he committed the identical crime against other individuals. This provision violates one of the foundational principles of western justice, the principle of equal protection under the law, by creating a protected class of individuals and declaring that a violation of their rights is a more extreme crime than a violation of the rights of others. Similar circumstances have existed throughout history that have allowed for the persecution and subjugation of individuals based on gender, race or religion. The only real difference with this law is that one’s employment is the excuse for granting a special protected status under the law. It is still discriminatory in nature.
I predicted the overreach which would inevitably result from the passage of the bill.
Under section 18-903, Idaho Code, battery is defined as, among other things, “actual, intentional and unlawful touching” of another person against their will. It is quite possible that a frantic parent grabbing a passing doctor by the shoulder could find himself charged with battery under this broad definition, yet Senate Bill 1351 gives the government the authority to file felony charges and to seek penalties of up to three years in state prison for just such an action. In cases not involving health care workers, such an action could garner at most six months in a county jail, which means that Senate Bill 1351 would allow an enhancement that is six-fold the normal penalty.
Finally, I cautioned against the removal of the exculpatory language in the first version of the bill which rightly protected the mentally ill.
Another problem with Senate Bill 1351 is that it lacks any language to protect individuals who may engage in “unlawful touching,” but who are unable to form the intent to commit a crime due to illness, disability, stress, disorientation, medication or any other factor which may render them confused or unaware.
Know Your Enemy
On February 27, 2014, Senate Bill 1351 passed the Idaho Senate 27-8 with Sen. Russ Fulcher (now running for Idaho’s First Congressional District seat), Sen. Steve Vick, and other foes of governmental overreach voting no. The Democrats, moderates, and fake conservatives (including Sen. Bob Nonini, now seeking to be the state’s Lieutenant Governor) voted in favor.
In the House, it was much the same story with the bill passing 42-26. Rep. Luke Malek and Rep. Christy Perry (both running against Russ Fulcher in the First Congressional District race) voted yes along with dozens of other government-lovers while the more conservative minority again registered their opposition.
The Governor signed the bill on March 28 of that year and it took effect July 1.
The Nightmare Continues
Finding bad bills passed by the Idaho Legislature isn’t exactly difficult, and there have been so many over the years that it’s easy to forget about them. Easy, that is, until we’re reminded about all the lives which have been devastated by their passage.
In January of 2018, the Idaho Statesman published a lengthy article detailing the struggles of individuals as a result of this law. A woman suffering from bipolar disorder is facing multiple felonies after seeking help for her condition at an inpatient facility in Boise. In the midst of a manic episode, she allegedly grabbed at an employee’s chest and broke the woman’s bra strap. This “unlawful touching” got her arrested, jailed, and charged with felony assault.
She is not alone. The article reveals that since the passage of Malek’s bill, prosecutors statewide have filed the felony charge more than 290 times. These charges have repeatedly been filed against patients diagnosed with multiple mental illnesses and patients who were on a mental hold or inpatient psychiatric treatment at the time of their arrest.
The Way Forward
With an incarceration rate that exceeds that of 34 other states (and is more than double that of Utah) and a hardline, zero-tolerance policy on even medical marijuana use, Idaho is in desperate need of criminal justice reform. While some small efforts are being made, the fundamental problem of over-criminalization remains largely unaddressed. No one is suggesting that “unlawful touching” should be entirely ignored, but three years in prison is excessive even for the most clear-minded offender, let alone someone suffering from a severe mental illness.
Change won’t come easy to Idaho, though. It never does. One of the most essential changes needed to move forward is to kick these police state-loving bullies out of office and replace them with decent people who actually have some empathy for those whose lives are being mangled by the criminal justice system. Luke Malek isn’t the only despot in the legislature—far from it—but his decision to seek even higher office is a reminder that it isn’t just cream that rises to the top… Idaho can and must do better than electing this poor man’s Stanley Tucci to Congress. Idahoans deserve better and so does the rest of the country.