In controversial vote, Colorado lawmakers add harsher punishment for fentanyl possession to bill

Colorado lawmakers made their bill to combat fentanyl more punishing by approving an amendment to make possession of more than a gram of the deadly synthetic opioid a felony.

For almost 14 hours, starting Tuesday and ending at 3 a.m. Wednesday, addiction experts, doctors, advocates for racial justice in the legal system, defense attorneys and others begged members of the House Judiciary Committee to resist such a policy.

District attorneys and cops made the opposite push, some arguing that possession of any amount of fentanyl should be a felony, and Wednesday’s vote indicates the committee was more inclined to their argument.

The amendment includes the caveat the charges could apply only to anyone who “knew or reasonably should have known” they possessed fentanyl, and it does not discriminate between possession of pure fentanyl and drug mixtures that contain fentanyl. Current law sets the felony threshold at four grams, and this amendment means the bill now proposes to treat someone who has one gram of pure fentanyl the same as someone whose one gram of Xanax or cocaine is laced with a mere dusting of fentanyl.

Further criminalization is the wrong approach, opponents argued, because it will disproportionately punish poor people and people of color; because the state isn’t adequately equipped to provide treatment and mandatory treatment often doesn’t work anyway; because decades of research have shown that “tough-on-crime” policies don’t stop drug use or sales; and because it’s both cruel and inaccurate to think that Colorado could address addiction and drug abuse issues through policing and courts.

The committee passed HB22-1326 over their objections, siding with the many in law enforcement and some families of the dead who’ve asked this legislature to stiffen criminal penalties for both fentanyl possession and distribution. The 43-page bill proposes a wide variety of changes: increasing funding for fentanyl test strips and overdose reversal medications; creating harsher penalties for fentanyl dealers; requiring addiction treatment for some defendants; expands medication-assisted treatment in jails; and creates a criminal charge for drug distribution resulting in death.

The bill passed with a vote of 8-3, with Republican Rep. Mike Lynch joining all Democratic members in support, and with all Republican members but Lynch opposed. It must clear the House Appropriations Committee next, then two votes of the full House chamber, before starting the process all over again in the Senate.

Just before the vote, bill sponsor and House Speaker Alec Garnett said of his much-maligned bill, “This is not the perfect solution.

“But this bill, in my opinion, must pass,” the Denver Democrat continued. “If we don’t get this done now, then the crisis is only going to get worse on the ground.”

Added his co-lead sponsor, the Larimer County’s Lynch, “We’ve got to let people know how deadly this is.”

Republican Rep. Terri Carver of Colorado Springs entered the hearing determined to make fentanyl possession in any amount a felony. When she moved an amendment to do that, Democrats called her plan “facile” and “extreme.” Those Democrats defeated her amendment, 6-5, then minutes later the committee voted to approve Garnett’s amendment, which many of the bill’s opponents argue is not far off from Carver’s.

That amendment, to set the threshold at one gram, passed by a 7-4 vote. In favor were Democratic Reps. Lindsey Daugherty, Dylan Roberts, Kerry Tipper, Adrienne Benavidez and Monica Duran, plus Republican Reps. Lynch and Stephanie Luck. Opposed were Democratic Reps. Mike Weissman and Jennifer Bacon, and Republican Reps. Terri Carver and Rod Bockenfeld.

Bacon and Weissman felt the penalties in the amendment were too severe.

“There is real harm to felonizing drug possession, and we heard no less than 50 people talk about that yesterday,” Bacon said, before voting against Garnett’s amendment, adding that Democrats “set ourselves back” when they support more criminalization despite a lack of evidence that harsher laws necessarily save lives.

Bockenfeld and Carver felt the amendment wasn’t severe enough. On Tuesday night, both of them apologized to police on behalf of the legislature, saying that lawmakers had made cops’ lives harder.

The committee also amended the bill to, among other things, provide for faster record-sealing by people convicted of certain drug offenses; and to propose that, if and when the state is capable of more advanced testing, people receive felony charges for any amount of fentanyl possession if fentanyl comprises at least 60% of what is seized.

At least 900 people died of fentanyl overdoses in Colorado in 2021 – half of all 1,836 drug overdoses in the state that year, according to provisional data from the Colorado Department of Public Health and Environment. That’s a 67% increase from the 540 fentanyl deaths in 2020 and a 305% increase from the 222 people who died of fentanyl in 2019.

Parents of some of those who died urged lawmakers to act during the marathon committee hearing.

Jessica Chavez’s 21-year-old daughter, Yesenia, died of a fentanyl overdose in July after taking a pill she thought was a prescription painkiller. Chavez urged lawmakers to make it easier to hold dealers accountable so that deaths like those of her bright and loving daughter won’t go uninvestigated.

“Because of the heartbreak – we ask ourselves everyday what we could’ve done,” Chavez said.

Rachel Compton, who overdosed on fentanyl after taking a pill she thought was the prescription painkiller Percocet, asked lawmakers to further expand access to naloxone, the opioid overdose reversal medication. She survived the 2019 overdose because of the medication and has been in long-term addiction recovery since then.

“The only reason I am here today is because of this life-saving medicine Narcan and because the person I was with had the knowledge of overdose signs,” Compton said.

The bill allocates $26 million, including for harm reduction solutions like naloxone and fentanyl testing strips, but the bulk of the debate Tuesday focused on who should be incarcerated for fentanyl and for how long. Nonpartisan legislative analysts determined that the legislature may end up having to spend $4.6 million for new prison beds.

Doctors, psychiatrists and addiction specialists repeatedly told lawmakers that there is no evidence that shows harsher criminal penalties reduce drug use or drug deaths. Instead, they said, it increases the risk of overdose, destabilizes lives and prevents people from getting the very things needed to stay sober: employment, housing and healthcare.

“Fentanyl is scary but incarcerating and mandating our way out of this crisis are not the answers,” said Dr. Sarah Axelrath, a primary care and addiction medicine physician with Colorado Coalition for the Homeless.

Compton said the threat of arrest or prison did not stop her from using or from breaking other laws. The desperation of addiction and the physical pain from withdrawals overrode those concerns and made her willing to gamble her own life, she said. She knew the drugs she was taking could be laced with fentanyl but took them anyway because she needed a fix.

“In my active addiction I broke plenty of laws,” she said. “The only reason I wasn’t incarcerated was because I didn’t get caught.”

But police chiefs, sheriffs and district attorneys remained steadfast in their belief that harsher criminal penalties for fentanyl possession and distribution were needed to deter people from drugs and as prosecutorial bargaining chips, even as some acknowledged the criminal legal system doesn’t work for everyone.

Felony charges can be used as leverage to get people into treatment, prosecutors and cops said, though addiction treatment providers said treatment is often not immediately available even for those who want to get sober.

Thirty-eight of the 54 jails in Colorado offer medication-assisted treatment and the state’s prisons only offer medication-assisted treatment to people who were using the treatment prior to going to prison. Outside of incarceration, waitlists for treatment can be long.

The waitlist at RESADA treatment facility in Las Animas stretches into late May, said David Collins, residential/withdrawal management clinical supervisor. The facility has seen an incredible increase in people seeking help for fentanyl addiction.

“We are very low on resources,” he said.

For Axelrath’s clients in Denver, many of whom are homeless and on Medicaid, it is nearly impossible to find residential treatment.

“Many of my patients are desperately looking for a residential program but it doesn’t exist,” she said.

Law enforcement officials were virtually unanimous in the belief that fentanyl should not be tolerated in any amount, and thus that possession in any amount must be a felony. Under current law, possession of less than 4 grams of a compound that includes fentanyl is a misdemeanor. Nearly all fentanyl found in street drugs in Colorado is mixed with other drugs or with a filler substance.

“Pure fentanyl, we just don’t see that,” Denver District Attorney Beth McCann said.

Police chiefs and sheriffs from Westminster to Basalt and Pueblo to Mesa County testified in favor of increased criminalization. Denver police Chief Paul Pazen and 18th Judicial District Attorney John Kellner told lawmakers that possession of any amount of fentanyl should be a felony. Others, like 17th Judicial District Attorney Brian Mason, said the amount to trigger a felony should not be any, but should be less than 4 grams.

Some lawmakers, including Tipper, said making the possession of any amount of fentanyl a felony would essentially make the possession of any drug a felony because fentanyl has become so prevalent in street drugs. It also sets up a system where, for example, a person who buys what they believe to be a Percocet pill on the street is liable for a felony if it happens to contain fentanyl and is liable only for a misdemeanor if it doesn’t – even though the person buying the drug has no control on the content.

Law enforcement emphasized that they don’t want to jail people with addiction and want to focus on dealers. But people who work in addiction say the distinction is not so simple in real life. Friends give friends drugs, or sell from their personal stash. People with addiction deal minor amounts of drugs to support their addiction.

“The distinction between sellers and users in the bill seems like it makes sense … but clinically it is artificial,” said Axelrath, the addiction doctor.

Though law enforcement repeatedly said they need harsher criminal penalties in order to properly investigate the upstream sources of fentanyl, several citizens testified that they provided police with information following a loved one’s overdose, but that police never followed up on their tips.

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