Speaker Alec Garnett, D-Denver, speaks at a news conference on fentanyl legislation March 24, 2022, at the Colorado State Capitol building. (Faith Miller/Colorado Newsline)
A panel of state lawmakers delayed voting on a bill addressing the powerful synthetic opioid fentanyl, after more than 12 hours of public testimony kept them at the Capitol well past midnight Tuesday.
The top Democrat in the House of Representatives, Speaker Alec Garnett of Denver, is sponsoring House Bill 22-1326 with Rep. Mike Lynch, a Wellington Republican. Principally, the legislation would increase penalties for people who manufacture, sell or distribute substances containing fentanyl. It would also require addiction treatment for people convicted of certain crimes related to fentanyl, expand access to the opioid overdose reversal drug naloxone and fund a statewide public education campaign. Sens. Brittany Pettersen, a Lakewood Democrat, and John Cooke, a Republican from Greeley, have signed on as Senate sponsors of HB-1326.
“We do not have the option to leave here without a well-thought-out answer to stopping or slowing down fentanyl use in this state,” Lynch said to kick off discussion. “We must not run to our political corners today but work for a solution for the people we represent and their safety.”
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But given the number of witnesses signed up to testify, Judiciary Committee Chair Rep. Mike Weissman, an Aurora Democrat, announced around 10:30 p.m. Tuesday that the committee would delay voting on proposed amendments and the bill as a whole until Wednesday afternoon.
Since 2015, nearly 2,000 people have died in Colorado after ingesting fentanyl. Some of their surviving friends and family provided emotional testimony Tuesday night.
This group of witnesses included Matt Riviere, who lost his sons Andrew, 21, and Stephen, 19, to fentanyl. They both struggled with mental health issues, Riviere said, and had purchased pills that they believed were oxycodone. The counterfeit pills contained a lethal dose of fentanyl, a substance so powerful that as little as 2 milligrams can cause overdose and death.
“Yes, they made a stupid choice,” Riviere said. “They would be the first to admit that if we could talk to them today. But they should have never died experimenting with what they thought was a non-deadly drug.”
Riviere spoke in support of the increased penalties for distribution contained in HB-1326, as did dozens of others who lost family members. Many of these witnesses said their sons, daughters, brothers and sisters had ingested pills or cocaine that unbeknownst to them contained trace amounts of fentanyl strong enough to kill.
“She worked hard and she loved hard, and she lit up every room that she walked into,” Feliz Sanchez-Garcia said of her late sister, 28-year-old Karina Rodriguez, through tears. Rodriguez and her boyfriend were among the five people found dead in a Commerce City apartment in February. Authorities believe the group had overdosed after ingesting fentanyl-laced cocaine, in the largest mass-casualty event linked to fentanyl in the U.S.
Last year, the Colorado Department of Public Health and Environment recorded 1,757 total drug overdose deaths in the state — the highest number in recent history and a 19% increase from 2020, when 1,477 people died of drug overdose, according to preliminary data that Vital Statistics Program Manager Kirk Bol provided Newsline in late March. An estimated 854 of those overdose deaths in 2021 specifically involved fentanyl, a 58% increase from 2020. The totals could change before data is finalized in May.
Ripple effects go beyond those lives lost. Jessica Chavez spoke of her 21-year-old daughter, Yesenia Chavez, who died last July after taking what she thought was a Percocet pill but which actually contained fentanyl. Since then, Chavez said, her other daughter has been hospitalized for depression, and her husband had a possible heart attack.
“No one has been held accountable for my daughter’s death,” she said.
Possession a charged topic
Much of the debate and witness testimony centered on whether to lower the minimum amount of fentanyl that would trigger felony charges. Under current law, possession of up to 4 grams of most schedule I or II controlled substances constitutes a level 1 drug misdemeanor punishable by probation of up to two years, up to 180 days in county jail and a fine up to $1,000. The quantity must exceed 4 grams to be a level 4 drug felony, a conviction that comes with six months to one year in prison.
That’s due to a bipartisan law passed in 2019 that changed drug possession under 4 grams from a felony to a misdemeanor. Before this legislation, House Bill 19-1263, took effect on March 1, 2020, possession of any amount of schedule I or II controlled substances — including fentanyl — was a level 4 drug felony.
Political commentators, law enforcement agencies, state GOP leaders and some lawmakers want to see an amendment to HB-1326 that would reverse what HB 19-1263 did to the potential consequences of possessing fentanyl — since a felony would come with prison time, while a misdemeanor would not. But the bill as introduced would not make changes to possession statutes other than to clarify that possessing more than 4 grams of a compound containing fentanyl, not just pure fentanyl, constitutes a level 4 drug felony in Colorado.
In a statement that Lynch read out loud during the hearing, Colorado Attorney General Phil Weiser, a Democrat, said he would support an amendment to the bill making possession of any amount of pure fentanyl a felony, while lowering the threshold for felony possession of fentanyl compounds.
"The legislature should update the state’s drug possession laws to account for the deadliness of fentanyl," Weiser said in the statement read by Lynch.
Prosecutors who spoke at the hearing told lawmakers that they rarely if ever encounter fentanyl in pure form. Fentanyl possession is already prosecuted based on the amount of a compound substance containing fentanyl, not just the amount of fentanyl itself that is present in the substance.
"What we find typically is a filler and a very small bit of fentanyl," said Denver District Attorney Beth McCann.
An amendment reportedly being discussed by Garnett ahead of the hearing would lower the possession threshold for fentanyl from 4 grams to 1 gram. Some witnesses, however, argued that possessing any quantity of substances containing fentanyl should be a felony.
The biggest change to Colorado criminal laws contained in HB-1326 is a provision lowering the quantities of fentanyl compounds triggering higher levels of drug felonies for someone selling or manufacturing them.
"I want to thank Rep. Lynch for his partnership in this long discussion," Garnett said to introduce the bill. "Rep. Lynch was actually one of the first people to come to me and say, 'Listen, what’s in Colorado statute now when it comes to cut points for intent to distribute don’t take into consideration the dangerous nature of fentanyl.'"
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. 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
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.
Manufacturing, distributing or selling a substance containing fentanyl would be a level 1 drug felony if a person died from using or consuming it. A person who overdosed or called 9-1-1 to report an overdose would be immune from prosecution for that charge under the bill, but they could still be convicted for possession with intent to distribute.
Some witnesses spoke against those proposed changes. They argued that increasing criminal penalties at all, even for the manufacture and sale and fentanyl and not for simple possession, would only worsen the overdose crisis. And they contested the notion that the 2019 law increasing the threshold for felony possession had contributed to the rise in overdoses, noting that other states have experienced similar rises in fentanyl-linked overdose deaths regardless of the penalties in place for possession.
"This is not the answer," said Cass Harris, director of care services at The Empowerment Program in Denver. "There are some restorative justice models that work, and if we could think through that lens, I think we could come to an answer that would heal the community as a whole."
Mandating addiction treatment, deploying harm reduction resources
Heroin use has dwindled in Colorado as climate change limits poppy production, said Lisa Raville, executive director of the Harm Reduction Action Center in Denver — which opposes HB-1326 because of the criminalization measures it includes.
While some people ingest fentanyl unintentionally, Raville explained that as heroin becomes more scarce, many opioid users have switched from injecting heroin to smoking fentanyl pills. They actively seek fentanyl to avoid withdrawal symptoms, which Raville described as "the flu times 1,000."
Another part of HB-1326 would mandate addiction treatment for certain people convicted of crimes involving fentanyl as a condition of probation. The Harm Reduction Action Center and other advocates of criminal justice reform also raised concerns about this section of the bill.
Upon their conviction for fentanyl possession, use or distribution, HB-1326 would require a person to answer questions about the history of their substance use and their willingness to undergo treatment. This assessment would be used to determine whether the person should receive community-based treatment or more intensive treatment in a residential facility. Either way, they would have to complete a fentanyl education course to be developed by the Office of Behavioral Health.
But some witnesses pointed out that resources for treatment are scarce in Colorado. Dr. Sarah Axelrath, who works in addiction medicine and primary care at Colorado Coalition for the Homeless, said many of her patients with substance use disorders have sought residential treatment and been unable to find it. Axelrath spoke in opposition to the bill, saying that criminalization and mandatory treatment would be counterproductive for her patients struggling with addiction.
HB-1326 does include about $35 million in new spending, dedicated funding that Boulder District Attorney Michael Dougherty, a supporter, lauded — and lawmakers are making separate large investments in behavioral health care this year. Much of the funding in HB-1326, however, comes from federal COVID-19 relief funds, and those dollars must be obligated to specific programs by 2025. The state would need to find other sources of ongoing funding to support the harm reduction measures in the bill after that.
Over the next two years, HB-1326 would provide $18 million to help law enforcement agencies, schools and other organizations purchase naloxone in bulk. It would set aside $5.2 million for grants to harm reduction organizations that educate drug users on safe use, provide clean syringes and fentanyl testing strips, and make referrals to treatment. Another $3 million would go to county jails to help them incorporate medication-assisted treatment, which involves prescribing medications such as buprenorphine, methadone and naltrexone to help relieve opioid withdrawal symptoms or block cravings. The Department of Public Health and Environment would get $1.9 million to develop a public education campaign around fentanyl.
A "good Samaritan" provision in the bill would protect organizations that distribute fentanyl testing strips.
"We’ve heard from actually a lot of law enforcement agencies that want to help distribute testing strips but are worried about liability because the testing strips aren’t 100% accurate," Garnett explained. "So we created a similar system to what we did with Narcan and naloxone ... where we want to incentivize those getting out and so you can’t be held liable if something happens along the way."
The House Judiciary Committee will continue discussion on HB-1326 at a hearing scheduled for 1:30 p.m. Wednesday.
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