Gov. Jared Polis speaks at a news conference March 24, 2022, at the Colorado State Capitol building. (Faith Miller/Colorado Newsline)
After much anticipation, a bipartisan group of state lawmakers and district attorneys joined Gov. Jared Polis at the Capitol on Thursday to introduce legislation aimed at addressing the rise in fentanyl overdose deaths in Colorado.
They propose increasing penalties for people who manufacture, sell or distribute the powerful synthetic opioid while requiring people convicted of certain crimes involving fentanyl to undergo addiction treatment as a condition of probation.
“I’ve been working hand in hand with Colorado’s district attorneys to craft a comprehensive solution that attacks fentanyl from all sides and gives law enforcement the tools they need to crack down on this deadly poison,” House Speaker Alec Garnett, a Denver Democrat who is sponsoring the legislation, said at Thursday’s news conference. “Fentanyl overdoses and fentanyl poisonings are killing far too many Coloradans and devastating our communities.”
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The Colorado Department of Public Health and Environment recorded 1,757 total drug overdose deaths among Colorado residents in 2021, according to Vital Statistics Program Manager Kirk Bol. That’s the highest number in recent history, and it represents a 19% increase from 2020, when 1,477 died of drug overdose.
State data are not yet finalized, Bol cautioned, and the total could change between now and May. But of the overdose deaths recorded thus far, 1,173 involved some form of opioid (a 23% increase from 2020), and 854 specifically involved fentanyl (up 58% from 2020).
In recent years, fentanyl has started showing up more in street drugs such as heroin, meth, cocaine and ecstasy, as well as counterfeit prescription pills. Manufacturers of illicit drugs add it to substances to increase their potency and improve their profit margins, or it can get added as a result of accidental cross-contamination. A recent decline in the national heroin supply has also led some heroin users to seek out fentanyl pressed pills, which are easier to manufacture and distribute, and which many prefer to injecting heroin.
Fentanyl is powerful enough to cause a lethal overdose at a dose no higher than 2 milligrams, making it more deadly than other types of opioids.
Tougher penalties for distribution
Garnett's bill — also sponsored by Wellington Republican Rep. Mike Lynch, plus Sens. Brittany Pettersen, a Lakewood Democrat, and John Cooke, a Greeley Republican — would make it a level 4 drug felony to possess any substance weighing more than 4 grams that contains any amount of fentanyl, carfentanil, or their analogs. Carfentanil is a substance 100 times more potent than fentanyl, used to tranquilize elephants and other large animals.
Drug felony sentencing in Colorado
Level 1 drug felony: eight to 32 years in prison, three years parole
Level 2 drug felony: four to eight years prison, two years parole
Level 3 drug felony: two to four years prison, one year parole
Level 4 drug felony: six months to one year in prison, one year parole
It is already a level 4 felony in Colorado to possess more than 4 grams of a schedule I or II controlled substance, but the bill would explicitly say that law applies to substances containing fentanyl, not just pure fentanyl — which is rarely seized by law enforcement because it is so deadly even in extremely small quantities.
Some prosecutors and state lawmakers, citing the rise in fentanyl overdose deaths, had called for the reversal of a 2019 law that made possession up to 4 grams of a controlled substance — formerly a felony — a level 1 drug misdemeanor.
Garnett's bill would increase penalties for distribution, however. Manufacturing, distributing or selling a substance containing any amount of fentanyl, carfentanil or their analogs would become a level 1 drug felony if the substance being manufactured or sold weighed a total of more than 50 grams, down from 225 grams under current law. The bill would also shift the thresholds for lower-level felonies. If the substance weighed between 4 and 50 grams — down from 14 to 225 grams — that would be a level 2 drug felony, and distributing or selling 4 grams or less, down from 14 grams or less, would constitute a level 3 drug felony.
People who brought the substance containing fentanyl into Colorado from out of state and those who possessed equipment for manufacturing pills would be subject to a level 1 drug felony, even at smaller amounts.
"It’s time to make Colorado a safer state for everybody and it's time for the carnage to end," Polis said at the news conference. "There's no one single bill or reform that can end the fentanyl problem or the drug problem in Colorado, but this effort will absolutely go a long way by giving prosecutors the ability to go after additional criminal charges for fentanyl, for those distributing it, for people who have pill presses."
Mandating treatment, strengthening harm reduction
For people convicted of crimes involving fentanyl, Garnett's bill would require as a condition of probation that they receive addiction treatment in a residential facility, if recommended by a behavioral health assessment. Certain convictions would mandate a fentanyl education class, developed by the Office of Behavioral Health, as part of the sentence.
The bill would also take steps to strengthen "harm reduction" strategies in Colorado. Such strategies accept that people will use drugs and take steps to reduce the harm caused by their use, rather than an abstinence-only philosophy. For one, it would expand the list of organizations that are eligible to receive a standing order from the Colorado Department of Public Health and Environment for large shipments of the opioid overdose reversal drug naloxone. Under a state law passed in 2015, pharmacies, harm reduction agencies, law enforcement officers and local public health agencies can already request naloxone standing orders from the state.
There's no one single bill or reform that can end the fentanyl problem or the drug problem in Colorado, but this effort will absolutely go a long way.
– Gov. Jared Polis
The legislation would require jails to provide naloxone and prescribe medications, such as buprenorphine, methadone, and naltrexone, to people with opioid use disorders upon their release. It would require community corrections programs, also known as "halfway houses," to monitor people for symptoms of substance use withdrawal and develop protocols for their appropriate care.
"Our jails are not just part of the criminal justice system, but now are part of the behavioral health system as well," noted Cooke, the former Weld County sheriff.
The bill would provide civil immunity for people or entities that supply testing strips used to check drugs for fentanyl, protecting them from lawsuits. Additionally, it would allow public schools and charter schools to distribute fentanyl testing strips on school grounds. A new fund, similar to the state's existing bulk purchasing fund for naloxone, would let organizations purchase fentanyl testing strips in large quantities at discounted prices.
Finally, the bill would require the state health department to roll out a fentanyl prevention and education campaign.
Advocates skeptical of more criminalization
Since 2011, 39 states have passed or enacted laws that criminalize fentanyl, according to the Drug Policy Alliance, a national organization working to end such punitive drug policies.
As the executive director of Denver's Harm Reduction Action Center, Lisa Raville provides services such as counseling, fentanyl testing strips and clean syringes to people who inject drugs and their families. HRAC is aligned with the Drug Policy Alliance on fentanyl and believes that to reduce deaths, policy makers should increase access to naloxone and grow the number of harm reduction organizations and mobile outreach services with access to clean syringes.
"There’s always going to be another synthetic opioid," Raville added in an interview. "Law enforcement has never been able to arrest their way out of drug use, or they simply would have been able to do that before. Incarceration and criminalization brought us fentanyl, brought us the worst overdose crisis we’ve ever seen. So my concern is that we’re now going to have now a new synthetic opioid, which is going to be unpredictable and folks are going to be unclear about how they work, and puts people at higher risk of overdosing."
Raville also supports overdose prevention sites, also known as safe injection sites — state-sanctioned locations where people can use drugs under the supervision of volunteers and public health workers, who provide supplies such as clean syringes and referrals to treatment. Though Denver City Council and Mayor Michael Hancock approved such a site in 2018, the Colorado General Assembly has yet to pass a bill that would permit the practice under state law. New York City opened the nation's first state-sanctioned overdose prevention sites in November.
Pettersen, who is running for Congress, had planned to run such a bill back in 2019 — but now, she's firmly against the idea.
"If people are serious about addressing the overdose crisis, we need to focus in areas where we don’t take 100 steps backwards," Pettersen told Newsline in January. "All that is, is politically divisive. It brings stigma and fear around the people who are the most vulnerable." She pointed out that early last year, the Third Circuit Court of Appeals ruled against a proposed site in Philadelphia, which would have been the first of its kind in the U.S.
When asked whether Polis would support a bill authorizing supervised injection sites, spokesperson Kara Powell provided the following response: "There is no legislation on this. Governor Polis has proposed a comprehensive public safety package that will help increase access to treatment for Coloradans in crisis, and invests in proven strategies, including co-responder programs to prevent at-risk individuals from becoming involved, or further involved in the criminal justice system."
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