A bipartisan bill to increase the penalties for manufacturing and distributing fentanyl in Colorado is expected to be introduced at the state capitol this week.
Lawmakers are trying to address the rising death toll from the drug — which has increased at a faster rate in Colorado than any other state except Alaska in recent years — with policies they hope will punish suppliers while getting users into treatment.
“This is a very comprehensive approach. I think if this bill were signed into law today, it would go a long way toward helping those law enforcement agencies and districts across the state,” said Democratic Speaker of the House Alec Garnett, one of the bill’s main sponsors.
The bill would:
- Increase penalties for dealers caught with smaller amounts of the drug, and in cases where dealing the drug leads to a death
- Make more opioid antagonists and fentanyl testing strips available through groups around the state
- Force drug users caught with fentanyl into education and treatment programs
“People are dying because of this (drug). And every day we go without those tools is another day that we don't have the ability to send the message and to stop that behavior,” said Mesa County District Attorney Dan Rubenstein.
The bill will not include harsher punishments for simple possession of fentanyl, despite arguments over a controversial 2019 law that downgraded the charges for small amounts of most drugs to a misdemeanor.
Besides creating harsher penalties for some distributors, the bill also would try to force people into treatment programs. Anyone charged with possessing any amount of fentanyl would be required to attend a mandatory education program. Those determined to have a fentanyl addiction would be required to attend a drug treatment program.
“What you have before you, I think, is a new model to make sure we're getting that person into treatment without criminalizing a disease that they're suffering from,” said Garnett.
The bill also includes money for “harm reduction” strategies. Lawmakers want to budget about $3 million to treat people in jails for fentanyl addiction, plus $20 million for opioid antagonists, such as Narcan, which can prevent overdose deaths. It also would provide communities with more fentanyl testing strips, which can reveal whether the deadly substance has contaminated other drugs, like cocaine or black market pills.
“I think it's really important that there's more tools for law enforcement and for prosecutors, as well as a better ability to detect early what's out there before it kills people,” said Gov. Jared Polis.
Misdemeanor possession law will not change
Law enforcement leaders and many Republican policy-makers have blamed some of the rise in deaths on a bipartisan 2019 law that removed felony penalties for possession of less than four grams of most types of drugs. They argue that law could let someone get away with a misdemeanor even if they possessed dozens or hundreds of doses of fentanyl; just a few milligrams of pure fentanyl can be deadly.
Freshman Republican Rep. Mike Lynch, a chief architect of the new policy, said the 2019 law spurred him to action.
“Before I was even elected, I saw the legislation in 2019 and I was curious about (how) that reduction of de-felonizing drug possession was going to have an impact. And here we are two years later and we're seeing a lot more drugs. I'm not saying that's the complete reason it happened, but it surely didn't help,” he said.
Harm reduction experts disagree and data doesn’t show any correlation between overdose deaths in states with lighter penalties for possession.
The state’s overdose death rate started climbing in 1999, according to the Colorado Health Institute. Overdose deaths did spike in 2020, the same year the possession law took effect, but some experts say that was likely tied more to the pandemic lockdown than anything else; and many states have seen rapid increases in fentanyl deaths in the past few years.
“The most effective ways to address the overdose crisis are evidence-based public health and harm reduction strategies that keep people alive and maximize their potential for recovery,” the Colorado Criminal Justice Reform Coalition and the Harm Reduction Center said in a joint brief released this week. “Such efforts warrant substantial investment, particularly in underserved communities of color that are experiencing higher rates of overdose deaths.”
This latest proposal does not undo that earlier softening of possession charges. Instead, it would allow for harsher punishments of dealers arrested with smaller quantities of the drug.
“We're worrying about distribution more than anything. Obviously that's a sticking to point for my side,” said Lynch. But he added that with the evolution in drug use, the state needs new approaches too.
“Let's try to actually fix the problem at the root. Let's approach it a little more differently. It may not always be the answer to just prosecute folks.”
Rubinstein said DAs wanted to see tougher punishments for dealers, not users. Bringing back the felony for simple possession is of much less interest, he said.
He described the new bill as “a step in the direction of recognizing that synthetic drugs (like fentanyl) may be the future.” Cartels are moving away from plant-based drugs, such as heroin, since synthetic drugs are cheaper and easier to produce in mass quantities.
The new bill would adjust the thresholds for distribution-related charges. Currently, the highest level of drug distribution felony applies to a person caught with more than 225 grams of schedule I and II drugs. Under the proposal, that would drop to 50 grams.
The thresholds for the second-highest charge also would drop from 14 grams to 4 grams. (Those distribution charges would still require evidence that the person was selling or planned to distribute the drug.)
The bill also would create new penalties when the distribution of the drug leads to someone’s death, and for the possession of “pill presses” that are used to mix fentanyl with other drugs.
The bill does not include much new money for treatment programs, but they are expected to be expanded with the help of federal money, and perhaps more through the upcoming state budget.
2019 law will continue as a point of debate
The question of what’s driving Colorado's rise in crime has been a major focus at the state legislature this session, and it’s expected to weigh as one of the top issues for campaigns ahead of the upcoming midterm election.
Already, a Republican-aligned political group has announced a $100,000-plus ad buy calling specifically on Gov. Jared Polis and four Democratic lawmakers to “reverse the decriminalization of fentanyl” by changing that 2019 law.
Michael Fields, whose conservative think tank, Advance Colorado Institute, is aligned with the group running the ads, said the new bill doesn’t go far enough and there will be more ads coming.
“Possessing any amount of fentanyl should be a felony because it’s so lethal. Four grams can kill 2,000 people. So, legislators shouldn’t just be working around the edges,” Fields wrote in a text message about the proposed bill.
Garnett and others argue it’s extremely unlikely that someone could get away with a misdemeanor for possessing four grams of pure fentanyl. With that many doses, they say, prosecutors should be able to prove that the person intended to distribute the drug — which remains a felony.
Still, in an earlier interview with CPR News, Denver Police Chief Paul Pazen said that the law was enabling some dealers to get away with misdemeanors.
He did not say that dealers were carrying around large amounts of pure fentanyl. Instead, they have made it a practice to carry just under 4 grams of pills containing fentanyl -- typically 35 to 39 pills, or a couple dozen doses -- because they knew they likely wouldn’t face jail time if caught, he said. The 4-gram weight limit applies to any mixture of drugs containing fentanyl.
“They’ve figured this out,” he said at the time. “The leverage that is necessary to address the low-level dealer has been removed … Please tell me what prosecutor takes felonies and misdemeanors and treats them the same because that’s where the point is being missed.”
Pazen’s position on the new bill wasn’t immediately available.
CPR's Allison Sherry contributed to this report.
Editor's Note: This story has been updated to clarify Chief Pazen's comments.
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