Should ‘knowing’ matter? How one word defined the fentanyl possession debate

Hart Van Denburg/CPR News
The state Senate chamber on Wednesday, May 11, 2022, as the legislature wrapped up its final day of the 2022 session.

In the end, the months-long debate over the drug fentanyl hinged on one word: “knowingly.” 

That adverb pitted Democrats against each other in a fight that stretched across 24 hours and both chambers of the legislature, taking the state’s “fentanyl accountability” bill into the very final minutes of their session. 

In those last hours, lawmakers were debating whether to apply felony punishments to drug users who may not have known that they’d been sold the deadly drug.

“There were moments today where I didn't know if this bill was gonna pass,” said Sen. Brittany Pettersen, one of the Democrats leading the negotiations.

It was the final detail to be settled in HB22-1326, the bill that will dictate the state’s response to fentanyl — a synthetic opioid that has quickly become a dominant driver of overdose deaths. It ultimately passed and now awaits Gov. Jared Polis’ signature.

The sweeping bill touches on jail policies, treatment, penalties for distributors and more. But the most controversial part is the new felony charges for simple possession of fentanyl.

Going into this week, it was all but settled that the state would allow tougher criminal sanctions against people caught with smaller amounts of the drug, despite objections from health experts. But Democrats in the two chambers had dueled over the question of whether people who didn’t “knowingly” possess the drug should also face felonies.

That’s an important question. Many people do not “know” they are taking fentanyl, instead believing they’ve purchased prescription opioids, cocaine or another drug. Members of both parties have referred to overdose deaths as “poisonings,” since drug dealers are surreptitiously mixing fentanyl into other substances as a cheap way to increase their potency.

Lawmakers late on Wednesday reached a compromise. Ultimately, authorities won’t have to prove defendants knew about the fentanyl in order to charge felony possession. But the law will give one protection to users: If a case goes to trial, the defendant can try to prove that they didn’t know they had the drug. If they convince the jury, the felony could be reduced to a misdemeanor.

“This is an opportunity to take care of those rare circumstances where somebody has made it all the way to court and they have an opportunity to present evidence that they didn’t know fentanyl was in their compound mixture,” said House Speaker Alec Garnett, a chief architect of the bill.

In essence, people still have a chance to escape a felony — but the burden of proof falls on the defendant, not the prosecutors, to answer the question of knowingness. And many defendants won’t have the chance to present that evidence, since they will accept a plea bargain rather than deal with the risk or expense of a trial.

While the compromise drew enough votes to get the bill through, just 70 minutes before the midnight deadline, it did come at the cost of some support. Republican Rep. Mike Lynch, one of the leading lawmakers on the bill, asked for his name to be removed as a prime sponsor.

Lawmakers in the House and Senate split on 'knowingness'

Democrats in the House passed a version that would only allow felonies against people “knowingly” in possession. But in the Senate, that amendment was undone when a few Democrats joined with Republicans. Their objection was that it would be too hard to prove what defendants knew about the contents of their drugs.

“The 800-pound gorilla of that room was the stripping of that language,” said Rep. Lynch.

House Speaker Alec Garnett brought the argument to a head late on Tuesday night — when he proposed that his chamber reject the Senate’s harsher language. Lynch unsuccessfully urged his colleagues to accept it.

That decision led to a running debate, held in hallways and side conversations, largely between Democrats, that lasted most of the final day of session. 

“If we adhered to the Senate position, we didn't have a path forward in the House. If we didn't address some of these outstanding issues in a productive way to understand both sides, we wouldn't be able to pass it in the Senate either,” Pettersen said.

Law-enforcement interests leaned heavily on lawmakers in the final hours, as they have throughout the session. Denver Police Chief Paul Pazen spent part of the day in the Capitol. In a brief interview, he said that requiring proof of “knowing” possession — as House Democrats had proposed — would make it impossible to prosecute the new felonies.

“It’s shocking that we find ourselves in this position now,” Pazen said in the afternoon, before the compromise was struck.

The police chief continued: “This was a no-brainer. This was the easiest bill that could have, and should have, come out of here. You have (Democratic Gov. Jared Polis) saying, ‘Here’s what it should look like.’ And his party’s in control of both sides. They should have been able to get this done weeks ago, and yet they're still messing it up.”

Lawmakers continuously checked in with district attorneys as they worked, seeking their approval for the new language.

“The DAs have had a tremendous influence in this building,” said Rep. Chris Kennedy, a Democrat. 

A return to the war on drugs?

The passage of the bill marks the first time in recent years that the state has imposed harsher criminal penalties for drugs. Under Democratic rule, laws in previous years have trended in the opposite direction. Like other liberals and progressives, Kennedy is disappointed by the bill’s turn toward harsher criminal penalties.

“I'm not convinced that this is a policy that is gonna save any lives. I think it's gonna take lives. And that's really unfortunate,” Kennedy said, adding that he supported other elements of the bill, including money for treatment and overdose prevention.

In the end, all but one of the Senate’s Democrats voted to pass the bill; Democratic Senator Julie Gonzales joined seven Republicans in opposition. In the House, the final vote was narrower; the bill passed 35-29, with one lawmaker excused.

Law-enforcement leaders said more punitive measures are necessary to stop low-level drug dealers. Selling fentanyl has always been a felony, but police and prosecutors argued it’s too difficult to prove the intent to distribute when someone is only selling a small amount of the drug. 

Instead, they claim they’ll use the felony possession charges to target dealers, while sparing users. Supporters also have said drug users might choose to complete treatment in order to reduce felony convictions, as allowed by the bill. But there’s no guarantee: Individual police, prosecutors and judges will decide how aggressively to use their new powers.

Many health experts and treatment providers have objected strongly to the punitive changes. They warn that the mere threat of greater punishment has little effect on drug use, and that the stigma of a felony conviction may only drive people into deeper despair

Meanwhile, many Republicans objected to the bill because they believe it’s not punitive enough.

“It is an ingenious move to make it look like it’s a felony when it really isn’t,” said Sen. Bob Gardner, a Republican. The compromise measure, he argued, would still leave too high a bar for prosecutors to enforce the new felony.

In a statement after the bill's final passage, the governor's office praised it, calling the legislation a "big step in the right direction" for public safety.