Fentanyl law’s proponents and foes prepare for criminal justice fallout

Advocates say bill will ‘increase death’ while key lawmaker plans new legislation to felonize possession of any amount of fentanyl

By: - June 3, 2022 5:00 am
Taj Ashaheed

Taj Ashaheed, Department of Corrections programs development manager at the Second Chance Center, speaks at a rally against re-felonizing drug possession at the Colorado State Capitol building on April 26, 2022. The rally was co-hosted by groups including the Colorado Criminal Justice Reform Coalition, Second Chance Center, Lighthouse Consultants Colorado, Harm Reduction Action Center, Tribe Recovery Homes, the ACLU of Colorado, and more. (Faith Miller/Colorado Newsline)

With Gov. Jared Polis’s signature May 25, hotly debated legislation to respond to the fentanyl overdose crisis became law in Colorado. But for the policy makers, attorneys and advocates who fought for a bill they could stomach, the work is only just beginning.

“This law is a bold response deploying both public safety and public health approaches to combat Colorado’s fentanyl crisis and save countless lives from this deadly drug,” Speaker Alec Garnett, the Denver Democrat who sponsored House Bill 22-1326, said in a written statement after the bill signing at the Capitol. “For months, we worked with law enforcement, public health experts, Democrats and Republicans to craft this law, and it’s a major step forward toward saving lives.”

The new law makes it a felony to possess more than one gram of a substance containing fentanyl, the powerful synthetic opioid tied to the overdose deaths of more than 900 people in Colorado last year — some of whom did not know they were consuming drugs that contained enough fentanyl to kill them.

HB-1326 also decreases the “cut points” or amounts of fentanyl compounds required to charge people with higher-level felonies for distribution. Finally, it mandates drug treatment for people convicted of crimes involving fentanyl, requires county jails to provide medication-assisted treatment and withdrawal management, and makes several large, one-time investments aimed at reducing the harms associated with substance use, including $19.5 million for bulk purchases of the opioid overdose reversal naloxone.

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Provisions of HB-1326 related to criminal offenses and state programs take effect July 1, while its requirements for county jails and law enforcement agencies kick in a year later.

After a legislative session full of charged rhetoric from lawmakers and impassioned testimony from family members of those lost to fentanyl, both proponents and opponents of HB-1326 plan to closely watch how the law is implemented and the impact it creates on the criminal justice system in Colorado.

One important provision creates a level 1 drug felony for distribution of fentanyl resulting in death. Currently, federal prosecutors can, and do, charge people with “distribution resulting in death,” but Colorado district attorneys can’t.

“Now that we will have that at the state level, we won’t have to refer all those cases to the feds,” 17th Judicial District Attorney Brian Mason, a Democrat, told Newsline. “The federal government and the U.S. attorney’s office certainly has a full plate of cases that they already prosecute. And now that we as state prosecutors will be able to use this new tool, I think that will be a benefit for all of us.”

Brian Mason
District Attorney Brian Mason, of Colorado’s 17th Judicial District, speaks at a news conference March 24, 2022, at the Colorado State Capitol building. (Faith Miller/Colorado Newsline)

Drug possession becomes a felony

Under a 2019 state law that took effect in March 2020, possession of up to 4 grams of most schedule I and II controlled substances is a misdemeanor in Colorado, not a felony. HB-1326 creates an exception for fentanyl, which is 50 times stronger than heroin. Given the elevated dangers associated with fentanyl as compared with other controlled substances, it made sense to impose tougher penalties on those carrying smaller amounts of the drug, the bill sponsors argued — echoing the sentiments of state Attorney General Phil Weiser, the Colorado District Attorneys Council and law enforcement groups. The bill’s supporters also said mandating treatment would help more people in Colorado recover from addiction.

But criminal justice reform advocates, public health experts and harm reduction workers pushed back against re-felonizing drug possession, saying it would punish those struggling with substance use disorders while pushing them further into the shadows or sweeping them up into the criminal justice system. The lingering consequences of a felony conviction, such as barriers to housing and employment, will make it more difficult for people to escape from the cycle of addiction, they argue.

These groups also opposed the provisions of the law requiring people convicted of crimes involving fentanyl to undergo treatment as part of their sentence.

“Mandated treatment doesn’t have an impact on addiction, and it doesn’t really help recovery,” said Taj Ashaheed, Department of Corrections programs development manager at the Second Chance Center, a nonprofit that serves people leaving jail and prison. “It just becomes just window dressing, to be quite honest, and will open the avenue for more funding for more jails and more prisons. Because you’re certainly going to lock up more people. That’s one of the effects of the conditions in this bill, is you’re going to incarcerate more people, period.”

Still, some Republican state lawmakers and prosecutors wanted to see HB-1326 go further — and punish people for possessing any amount of pills, powders or other drugs that contain fentanyl, regardless of whether they knew the substance had fentanyl in it. Members of law enforcement, including 18th Judicial District Attorney John Kellner, opposed an amendment to the bill that made felony possession of more than 1 gram, but no more than 4 grams, come with a lighter sentence than is typical for felonies. Rather than prison time, a person convicted of felony possession would receive two years of probation with the possibility of up to 180 days in jail and would be fined up to $1,000.

That’s one of the effects of the conditions in this bill, is you’re going to incarcerate more people, period.

– Taj Ashaheed, of the Second Chance Center

“While I believe the fentanyl bill does some good, I view it as a missed opportunity to truly tackle the fentanyl epidemic in Colorado,” Kellner, a Republican, said in a May 26 email to constituents. “Unfortunately, the bill that passed will allow most drug dealers who sell this poison causing death to be eligible for probation. That’s unacceptable.”

While possessing up to 4 grams of a fentanyl compound is a probation-eligible crime, selling, manufacturing or distributing a substance containing fentanyl is a felony that typically comes with at least two to four years’ prison time under Colorado law. Anyone found with more than 4 grams of a substance containing fentanyl can be charged with distribution, which is at least a level 3 drug felony. People found with smaller amounts can also be charged with distribution, if police find evidence like pill presses or scales.

But calls to institute stricter penalties for fentanyl possession aren’t likely to die down anytime soon. And on Thursday, the law enforcement-centered “Colorado Fentanyl Summit” kicked off in Denver. Kellner and Mason are co-chairing the two-day event, coordinated by Denver City Attorney Kristin Bronson. The summit will “offer intensive training courses and strategy sessions for law enforcement on all aspects of fentanyl enforcement from investigation and case building through interdiction and prosecution,” according to a statement from the city and county of Denver.

“One of the things that I have learned in the last several months, particularly given all the fentanyl cases in my jurisdiction, is that investigating and prosecuting fentanyl poisoning takes specialized knowledge and specialized training and specialized tools,” Mason said. “That’s what we are hoping this conference will give to those who are in the field.”

Calls grow to broaden felonization

Backlash from law enforcement eventually brought Garnett’s original co-prime sponsor, Republican Rep. Mike Lynch of Wellington, to ask that his name be removed from the bill on the final day of the legislative session.

Under a last-minute compromise reached May 11, the last day of session, language was added to HB-1326 stating that a person facing a level 4 felony for possessing more than 1 gram, but no more than 4 grams, of a substance containing fentanyl could have the charge lowered to a level 1 misdemeanor — but only if the person could show “supporting evidence” that they “made a reasonable mistake of fact and did not know” a substance contained fentanyl. The Senate-passed version of the bill — which Lynch supported — did not include that language. It would have allowed a judge to convict someone of felony possession regardless of whether they knew that fentanyl was present in their drugs.

Mike Lynch
Rep. Mike Lynch, R-Wellington, speaks at a news conference March 24, 2022, at the Colorado State Capitol building. (Faith Miller/Colorado Newsline)

Lynch told reporters at a May 12 news conference that he’d changed his thinking on the issue of criminal penalties for drug possession based on conversations with law enforcement, district attorneys and community members after HB-1326 was introduced. Because law enforcement wanted tougher standards on felony possession, Lynch said, he ultimately felt he needed to ask for his name to be taken off of the bill and vote against it.

“There’s a lot of good things in that bill, but I will tell you that it’s not enough,” Lynch said. “It’s not this House, this Legislature, listening to the people that are on the ground to fix that problem. So it breaks my heart, it really does, because we can do a lot of things here, and quite honestly, we failed in that mission. Will it make a difference? You bet. Will it be good? Sure, but I know we can do better.”

Later, Lynch told Newsline that he planned to bring legislation next year to felonize possessing any amount of a fentanyl compound. That’s assuming he wins reelection to a second term in November — a likely outcome, as Lynch’s House district leans heavily Republican, and he does not face a primary challenger.

“I’ll probably go on ahead and address and try to make sure that we take care of possession,” Lynch said. “You know, the nexus of that bill, and it was accomplished, was to give the DAs the tools they need to prosecute people that were distributing, manufacturing fentanyl, and that was accomplished in that bill, so that part was done.”

“The discourse took it to a different place,” he added. “I am hopeful and prayerful that these measures will help, but if they don’t, we need to keep on top of this. I mean, every other issue (legislators tackle) doesn’t rise to the level of people dying. And they die quick … I think, you know, the job of the government is to keep people alive.”

As introduced, HB-1326 did not include the felonization of possession, but focused on increasing penalties for manufacturing and distributing smaller amounts of fentanyl compounds. Lawmakers added the felony for fentanyl possession through an amendment as the sponsors faced growing political pressure from Weiser, Polis, district attorneys and state GOP leaders.

“A lot of times, you have drug dealers holding onto a certain number of pills, and under the prior possession statutes, it was easy for them to say, ‘Oh, I’ve got these 60 pills just for my own use,'” Weiser told Newsline on Thursday. “The reason it’s important to bring that number down is so drug dealers can’t get away with that loophole. Instead, they can be held to account, and they can be limited in their ability to distribute this dangerous drug.”

Earlier this year, both Polis and Weiser indicated their support for making it a felony to possess any amount of a substance containing fentanyl.

It’s too early to say what follow-up legislation could look like next year.

“We need to use the tools that we were granted in this legislative session and also see how the fentanyl crisis changes: Whether it gets worse, whether it gets better, whether there are other synthetic opioids coming on to the market, which we’re already starting to see,” Mason said. “I think we’ll be in a better place next year to evaluate what our policy response should be. But I don’t think any of us know that right now.”

The fight continues

During the legislative process, advocates worked to get further changes added to HB-1326 that they hoped would decrease the collateral consequences associated with felony possession. That included 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 language in the final bill around knowledge that a substance contained fentanyl represented a compromise between proponents and opponents of increased criminalization.

The final compromise gave district attorneys most of what they wanted, Lynch acknowledged. While some top prosecutors spoke out against the bill for not going far enough, most backed the final version. Advocates working to decrease criminalization and incarceration felt differently.

“We know from history and public health experts, this bill will increase death and decrease access to treatment,” Rebecca Wallace, senior policy counsel with the Colorado Freedom Fund, wrote in a Twitter thread posted May 12.

“I’m grateful for the diverse coalition that came together to make a cruel bill less harmful and the community that rose up,” she added. The public health, disability rights and criminal justice reform groups that advocated for changes ultimately made the bill less harmful than it could have been, Wallace said — securing a final version that didn’t felonize possession of any amount of a fentanyl compound, as some lawmakers and district attorneys had desired.

“We are not done. We will fight, and we will win,” Wallace concluded.

Next session, however, the Colorado House and Senate will have lots of new faces, and depending on the results of the November election, some of those new members may be more amenable to taking a hard-line stance on fentanyl. Leading Colorado Republicans such as Kristi Burton Brown, the state GOP chair, are banking on fentanyl as a key issue for voters, proclaiming that “soft-on-crime” Democrats failed this session to take strong action amid an overdose crisis. They’ve claimed that the rise in overdose deaths came as a direct result of the bipartisan 2019 law that made possession a misdemeanor, despite the fact that other states with stricter penalties for possession saw similar increases in deaths.

“All the @coloradodems know they’re going to lose because of fentanyl,” Burton Brown tweeted April 21. “They’ve created the Colorado drug crisis and the crime tsunami and yet they’re defending both.”

Fentanyl is commonly found in pressed pills that consist mostly of a filler with a trace amount of the synthetic opioid. One pill commonly contains enough fentanyl to kill someone who has not built up a tolerance to opioids, but people with a substance use disorder may take 5 to 10 pills in a day, according to Tom Raynes, the executive director of the Colorado District Attorneys Council. Each pill weighs about one-tenth of a gram.

But misinformation on fentanyl abounds. For example, during the debate over HB-1326, several Republican state lawmakers repeatedly made the statement that a gram of fentanyl can kill 2,000 people. That claim is misleading, because HB-1326 was always focused on fentanyl compounds, not pure fentanyl — since Colorado law enforcement agencies rarely, if ever, encounter fentanyl in pure form. The Colorado Bureau of Investigation currently lacks the capacity to test pure fentanyl, but a provision of the new law that will kick in when CBI obtains that capacity makes it a level 2 drug felony to possess any amount of a substance that’s more than 60% fentanyl.

The rhetoric around fentanyl possession leaves some criminal justice reform advocates worried about what might come next session.

“We fully anticipate being on defense next year,” said Christie Donner, founder and executive director of the Colorado Criminal Justice Reform Coalition. She said the group plans to focus on “the strategies that save lives,” such as the funding in HB-1326 for naloxone bulk purchases and medical detox services.

Power dynamics of treatment

Upon their conviction for fentanyl possession, use or distribution, a defendant under HB-1326 is required to answer questions about the history of their substance use and their willingness to undergo treatment. This assessment will 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.

Based on his experience working with formerly incarcerated people, Ashaheed worries about the psychological effects of making treatment mandatory.

“Most people’s experience with (treatment) programs usually is — it has, like, a punitive tag on it,” Ashaheed said. “They’re mandated to attend drug recovery classes, (Narcotics Anonymous), (Alcoholics Anonymous), and that’s a mandate and a condition of their incarceration. There’s usually a degree of coercion: ‘If you don’t take this class, you won’t progress in your custody level and/or progress to release.'”

Making treatment “a hoop that someone has to jump through … to gain their freedom” moves the focus away from recovery, Ashaheed argued. “I think that’s part of why we see a lot of backsliding with people who are on probation or parole or fresh out of jail.”

“When you’re incarcerated,” he added, “you’re in a position where you have very little power, because the nature of incarceration is you have to take away power from the person that’s incarcerated.” Giving people the power to choose treatment themselves represents a “paradigm shift” that’s part of why the Second Chance Center is able to report recidivism rates among its clients that are a tenth of those the state sees, Ashaheed said.

That lines up with perspectives from public health experts, including Dr. Josh Barocas, a Denver-based infectious disease physician and researcher working with patients who’ve experienced overdose or drug-related infections.

“When we look at population-based studies … mandating people into treatment does not work, on the whole,” Barocas said. “Mandated and forced ways of doing things result in worse outcomes than when we don’t mandate, when we don’t force people. Part of that has to do with the fact that it’s human nature.” He pointed to decades of research showing it’s not effective to force people to quit smoking, as they are more likely to adhere to a plan to quit if they have the choice.

“We have a responsibility, though, to make sure that treatment is available whenever somebody is ready, on demand, easily accessible, without hoops to jump through,” Barocas said. “Otherwise, they’re going to go back into the queue of their being ready. We have to be ready when they’re ready, and we’re not.” He noted that Colorado has enough medication-assisted treatment providers for less than 20% of people who seek treatment for opioid addiction.

Fentanyl is everywhere: Barocas said he can’t remember the last time he’s seen a urine toxicology screening where the powerful, cheap-to-make opioid wasn’t present. Ashaheed has seen the fentanyl overdose crisis impact the people he works with, too, in terms of an increase in overdoses. “Anxiety is something that we deal with,” he said, as clients worry about their friends and family members getting hurt.

The law’s sponsors said the urgency of the moment required an all-of-the-above approach.

“We are in the third wave of the opioid epidemic and in the worst overdose crisis in the history of this country,” Sen. Brittany Pettersen, a Lakewood Democrat who sponsored the bill in the Senate with Republican Sen. John Cooke of Greeley, said in a written statement after Polis signed HB-1326.

“We need to go after the dealers who are poisoning our communities and provide training and resources to better equip law enforcement to investigate fentanyl poisonings while increasing access to desperately needed treatment and life-saving harm reduction tools,” she added.

HRAC photo wall
A wall at Harm Reduction Action Center in Denver, pictured Aug. 31, 2021, bears framed photos of people lost to drug overdose. (Faith Miller/Colorado Newsline)

Who will be punished?

Under HB-1326, “what we expect to happen is a lot more people will be arrested,” Donner said. Advocates should have a better idea of whether that occurs within six to eight months of the law taking effect.

Donner pointed to data from the Office of the Colorado State Public Defender, contained in a policy brief on fentanyl: From January 2020 to January 2022, more than 31,000 drug cases in Colorado were filed against low-income people represented by the State Public Defender’s Office. Of those, 75% were for simple drug possession or sharing drugs for personal use, while 9% were for low-level dealing, 9% were for mid-level dealing, and 6% for high-level dealing.

Donner worries that rhetoric around the legislation could have a chilling effect on people calling 911 to report an overdose, even though HB-1326 contains “Good Samaritan” protections. “We don’t want folks to die if people are afraid of getting prosecuted,” she said.

According to a fiscal analysis for HB-1326, 10,946 people were convicted and sentenced for felony possession of a schedule I or II controlled substance, and 18,333 people were convicted and sentenced for misdemeanor possession of a controlled substance, from July 1, 2018, through June 30, 2021. Of those convicted, 66.9% were men.

Black or African American people were overrepresented in the numbers, comprising 9.26% of people convicted of drug possession compared with 3.8% of Colorado’s population.

Inconsistent reporting of Hispanic or Latino ethnicity — a problem across the country — makes it difficult to draw conclusions about the proportion of Latino people convicted of drug possession based on law enforcement data. However, in jurisdictions that collect better data on Latino arrests and convictions, research has found that Latino people are also more likely than white people to be arrested on drug charges.

The two years of Colorado data included in the fiscal analysis did not show large disparities in convictions on possession charges for Asian or American Indian people.

Since then-President Richard Nixon signed the Controlled Substances Act into law in 1971, criminal penalties for drug use, possession and distribution have disproportionately impacted low-income communities and people of color, who are more likely to be arrested, charged and convicted of drug crimes than white people. But due to the prevalence of fentanyl in drugs ranging from counterfeit pills to cocaine to meth, Ashaheed believes the criminal justice provisions in HB-1376 will reach people who haven’t yet felt the consequences of criminalizing drug use — including state lawmakers who don’t have incarcerated or formerly incarcerated friends and relatives.

“We’re just going to have more and more and more people arrested, less people actually having any real recovery, and more jails,” Ashaheed said. Rhetoric around drug use commonly sounds like “us versus them,” but thanks to HB-1326, he said, there’s going to be “a lot more ‘us’-es.”

Ashaheed is careful not to suggest he has all the answers to solving the fentanyl crisis, as he’s never struggled with addiction himself — he tried marijuana once and didn’t like it, he admits with a laugh. But as HB-1326 gets rolled out in Colorado, he hopes elected officials and policy makers will value the insight of formerly incarcerated people like himself as well as that of people in recovery from substance use disorders, such as the peer recovery coaches employed by the Second Chance Center.

One potential solution, he said, is funding “programs that are proven to be paradigm shifts,” like sober living homes that can help tackle both addiction and homelessness.

When asked how prosecutors should choose which fentanyl cases to pursue, Weiser described dealers as the main target.

“Prosecutor resources are going to focus on those who are pushing out these dangerous drugs and to find ways to support those who are struggling with their addictions, so they’re not necessarily sitting in jail but getting access to drug treatment,” Weiser told Newsline. “We have got to build more drug treatment. We don’t have enough drug treatment in our state, which is part of the problem and why the criminal justice system ends up bearing this load.”

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Faith Miller
Faith Miller

Reporter Faith Miller covers the Colorado Legislature, immigration and other stories for Colorado Newsline.

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