Colorado’s new fentanyl felony and funding are official after Gov. Polis signs reform law

Gov. Jared Polis signs the state’s “fentanyl accountability” bill into law on May 25, 2022 at the Colorado State Capitol. (Andrew Kenney/CPR News)

Starting on July 1, police and prosecutors will be able to charge people with felonies for possessing more than 1 gram of the drug fentanyl or of any substance containing it. It’s one major change made in a wide-ranging bill that was signed into law Wednesday by Gov. Jared Polis.

“Across our state, people are simply fed up with the pain this new and dangerous drug is inflicting in our communities,” Polis said on the steps of the state Capitol. Behind him stood more than a dozen people holding photographs of loved ones who died after using the drug.

The new fentanyl law dominated the 2022 legislative agenda, and negotiations continued until the final hours of the legislative session, two weeks ago. The proposal faced opposition from members of both parties, mostly over its changes to criminal penalties.

“I have never taken on a challenging issue quite like this,” said Democratic House Speaker Alec Garnett, who shepherded the bill. 

“At every step of the way, from the left to the right, people tried to defeat this legislation because they would prefer either for political purposes, or for their own finger pointing, to have nothing done.”

Currently, people in Colorado can be charged with felony possession if they have more than four grams of a substance containing fentanyl. That’s the threshold set for numerous drugs in a 2019 law that aimed to reduce the incarceration of drug users.

Under the new law, the charges can be assessed for anything over a single gram, or about 10 pills. On Wednesday, Garnett said that change was necessary to “get pills off the street.”

Jessica Chavez, right, holds a photograph of her daughter Yesenia Chavez after the signing of Colorado's new fentanyl law at the state Capitol. Yesenia Chavez died after taking a counterfeit Percocet pill laced with fentanyl. Also pictured are Jessica Chavez's niece, Nayeli Ortiz, and daughter Yani Chavez. (Andrew Kenney/CPR News)

But, even on the final day of session, Garnett said, some Republicans and law-enforcement leaders had tried to defeat the bill. 

Those critics on the right had wanted a “zero tolerance” approach that would allow felony penalties for anyone possessing the drug, even if they had unknowingly bought other substances laced with fentanyl. They say it was needed to crack down on street dealers and deter drug users.

On the other side, criminal-justice reformers warned that harsher possession penalties will only drive people with addictions deeper into despair. Some treatment and harm-reduction specialists have said that people may carry dozens of pills because of fentanyl’s highly addictive, short-lasting effects — putting them at risk of a felony for their personal drug use.

The bill passed with the support of a strong majority of Democrats and about a third of the legislature’s Republicans.

At the bill signing, members of the Democratic Socialists of America’s Denver chapter held cardboard signs reading “End Mass Incarceration” and “Recoveries Not Felonies.”

Democrats tried to temper the new charges by including “guardrails.” The felony possession charges can only lead to jail, not prison. And the new felonies can be downgraded to misdemeanors if people complete treatment programs after conviction.

The new law also extends far beyond criminal possession penalties, as lawmakers pointed out on Wednesday.

Those include requiring jails to offer medication-assisted treatment for opiate withdrawal and making available nearly $20 million for distributing opiate antagonists, sometimes known as overdose reversal drugs, like Narcan, and $10 million for treatment. Another $600,000 is set aside for testing strips to help users identify drugs laced with fentanyl, and $5 million for a three-year education campaign.

But Brandon Payne, a DSA protester, said he expected law enforcement to keep pushing toward a hard-on-crime approach.

“This is not enough for them. They always need more. And the police and prosecutors have shown they cannot be trusted to use their power to keep people safe. It’s just about politics,” he said.

'Putting the pieces back together'

Jessica Chavez was one of the bereaved family members who supported the bill. Her daughter Yesenia died after taking a fake Percocet pill that was laced with fentanyl last year.

She was a strong supporter of the law’s millions of dollars for education. As for tougher criminal penalties, she said, ‘it is what it is.’ She hopes the new charges will encourage people to break drug addictions.

“It’s been emotional every single day,” she said of the process. “And now it’s time to put our pieces (back) together.”

Many treatment experts and harm-reduction advocates warn that creating stiffer drug laws does little to alter drug use, as research shows. However, some researchers believe people may change their substance-use behavior when they are prersonally facing a criminal charge — but there are questions about the ethics and efficacy of forcing people into treatment.

The felonies are likely to be used differently by the state’s many police and prosecutorial districts, and the availability of treatment differs vastly through the state — meaning people in some communities may face harsher consequences.