Rep. Jennifer Bacon, D-Denver, speaks in opposition to a proposed amendment to House Bill 22-1326 on April 22, 2022. (Faith Miller/Colorado Newsline)
Legislation addressing the rise in overdose deaths earned initial approval in the Colorado House of Representatives on Friday, after amendments to felonize possession of less than a gram of a substance containing fentanyl failed on the House floor.
Fentanyl, a synthetic opioid that is 50 times stronger than heroin, has fueled a rise in fatal overdoses in Colorado and across the U.S. over the last several years. House Speaker Alec Garnett, a Denver Democrat, and Rep. Mike Lynch, a Wellington Republican, introduced House Bill 22-1326 in March as a response to the rapid rise in deaths — including of many people who did not know that a pill or powder they had consumed contained fentanyl.
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An amendment to HB-1326 that passed in the House Judiciary Committee on April 13 would make possession of over 1 gram but no more than 4 grams of a substance containing fentanyl a level 4 drug felony in Colorado, undoing part of a bipartisan 2019 law that made possession of up to 4 grams of most controlled substances a misdemeanor. Under the original amendment, a court would need to determine that a person “knew or reasonably should have known” that the substance was fentanyl.
Additional amendments passed Friday with the sponsors’ support were intended to broaden that language. Under the latest version of HB-1326, a person convicted of felony possession would need to have known or had “reasonable cause to believe” the substance in their possession was fentanyl.
Amendments lighten consequences for new felony possession crime
Under current law, possession of up to 4 grams of a schedule I or II controlled substance is a level 1 drug misdemeanor. The maximum sentence for this type of misdemeanor is 18 months in jail, but state law encourages judges to sentence people convicted of drug misdemeanors to probation instead of jail time.
The more serious crime of a level 4 drug felony typically comes with a sentence of 6 months to one year in the Department of Corrections — meaning prison. But another change to HB-1326 passed Friday in the House Appropriations Committee would make the bill’s new felony possession crime non-DOC-eligible, meaning a person convicted of possessing more than 1 but no more than 4 grams of a fentanyl compound could not receive prison time for that conviction. Instead, they could receive two years of probation with the possibility of up to 180 days in jail and be fined up to $1,000. Repeat offenders could get more jail time.
“Law enforcement, public defenders, everyone agrees that sending people to the Department of Corrections is not a good result when it comes to people suffering from substance use disorders,” Garnett said on the House floor Friday afternoon.
The House Appropriations Committee also passed an amendment allowing people convicted of possessing more than 1 but no more than 4 grams of a fentanyl compound to have the felony conviction removed from their record and replaced with a misdemeanor after they successfully completed drug treatment.
The original version of HB-1326 did not include harsher penalties for possession. Rather, it focused solely on people convicted of manufacturing, distributing or selling a compound containing 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. HB-1326 would make selling fentanyl or carfentanil compounds 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 distribution felonies, creating harsher penalties for smaller quantities of substances containing fentanyl.
Fentanyl pills, known as blues or M30s, consist of trace amounts of fentanyl and a filler. They are sometimes marketed as oxycodone. Each of these pills typically weighs about 0.1 gram, according to defense attorneys and prosecutors. A person found with more than 10 pills could therefore be convicted of a felony under the amended version of HB-1326.
While one pill can contain enough fentanyl to kill someone who has not built up a tolerance to opioids, heavy users sometimes consume 5 to 10 pills in a day, according to Colorado District Attorneys Council Executive Director Tom Raynes.
But some lawmakers argued that even with the Judiciary Committee amendment making possession of more than 1 gram of fentanyl compounds a felony, HB-1326 did not go far enough to punish people found with smaller amounts of drugs containing fentanyl.
Rep. Terri Carver, a Colorado Springs Republican, introduced an amendment on the House floor to make possession of any amount of a substance containing fentanyl a level 4 drug felony. The same amendment failed in Judiciary Committee earlier this month.
Carver pointed out that under Colorado law, possession of any amount of the anesthetic ketamine is currently a felony. She called for a similar carveout for fentanyl.
“Fentanyl is as dangerous, if not more dangerous, than ketamine,” Carver said, “with a few milligrams, fraction of a gram, being ingested and people dropping dead. A high school student in Colorado Springs ingested a pill and died.”
The teenage student Carver referenced overdosed during class at Mitchell High School after taking a fentanyl pill. The girl later died at a hospital, KKTV 11 News reported. Alexis Nicole Wilkins, who is accused of selling students fake oxycodone pills that contained fentanyl, is facing federal charges in connection with the girl’s death.
Rep. Jennifer Bacon, a Denver Democrat, argued that Carver’s amendment would cost “not only families money, but this state.”
“It will cost us through the public defense office,” she said. “It will cost our jails. It will cost our treatment centers the minute we put a felony charge on something.” Under the amendment, she added, if first responders managed to save a person who overdosed, “they can also be put in handcuffs for a felony.”
In the House, Carver’s amendment lost on a 24-38 vote despite having broad support from prosecutors and police outside the Legislature. Most Republicans supported the amendment, while most Democrats opposed it, with some exceptions: Democrats who voted “yes” were Reps. Shannon Bird of Westminster, Julie McCluskie of Dillon, Kyle Mullica of Federal Heights and Dylan Roberts of Avon. Republicans who voted “no” included Reps. Mark Baisley of Roxborough Park, Patrick Neville of Castle Rock and Shane Sandridge of Colorado Springs.
A subsequent amendment introduced by Rep. Matt Soper, a Delta Republican, would have felonized possession of any amount of a substance containing fentanyl, but people convicted of possessing 1 gram or less could have their felony conviction scrubbed from their record and replaced by a misdemeanor after they completed drug treatment.
That amendment lost on a vote of 29-34 despite getting more support than Carver’s first amendment. Democratic Reps. Bird, McCluskie, Mullica, Roberts, Barbara McLachlan of Durango, Alex Valdez of Denver and Mary Young of Greeley were among those in the “yes” camp on Soper’s amendment. Neville and Sandridge were the only two Republicans opposed.
More funding for naloxone, harm reduction
Part of HB-1326 would mandate addiction treatment for certain people convicted of crimes involving fentanyl as a condition of probation. Harm reduction workers and criminal justice reform advocates oppose this provision as well as the proposed new penalties for possession and distribution.
A scientific review published in 2016 in the International Journal of Drug Policy found that overall, available evidence did not suggest that mandating addiction treatment would improve someone’s condition. To the contrary, some studies suggested “potential harms” were associated with mandatory treatment.
But the bill sponsors argue that getting more people into treatment is imperative in addressing the overdose crisis.
Upon their conviction for fentanyl possession, use or distribution, a person would be required under HB-1326 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. The cost of the education course would be covered for extremely low-income people who were unable to pay.
According to a revised fiscal analysis posted Friday, HB-1326 would provide $20 million to help law enforcement agencies, schools and other organizations purchase the opioid overdose reversal drug naloxone in bulk. It would set aside $5.9 million for grants to harm reduction organizations that educate the community on how to use naloxone, provide clean syringes and fentanyl testing strips, and make referrals to treatment.
The latest amounts for naloxone bulk purchasing and harm reduction grants are slightly higher than those included in the original version of HB-1326.
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.
HB-1326 includes a total of about $35 million in new spending over the next two years. 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.
The House could take a second, recorded vote on HB-1326 as soon as Monday. Assuming it passes, the bill would then be scheduled for a hearing in the Senate where members of the public would be invited to testify. Like their colleagues in the House, senators will have the chance to vote on potential amendments that would increase penalties for possession.
Gov. Jared Polis, a Democrat, told Colorado Public Radio on April 19 that he would support felonizing possession of any amount of a substance containing fentanyl.
“It’s deadly, it’s killing people,” Polis told the outlet. “But I will sign any bill that moves in that direction. I’m glad that law enforcement will have more tools to prevent these hundreds and thousands of deaths from occurring in our state.”
Editor’s note: This article was updated at 2:50 p.m. April 25, 2022, to correct the potency of fentanyl as compared with heroin. Fentanyl is 50 times more potent than heroin.
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