A divided Colorado Senate votes to make fentanyl bill more punishing

Amending major policy on the fly, Colorado’s state Senate unexpectedly voted to make a controversial bill to combat fentanyl more punishing for those caught possessing the lethal synthetic opioid.

With the legislative session set to end Wednesday, the move introduced new questions on what may be the mostly closely watched policy of the year. In a Capitol where most every vote goes according to script, the future of the policy appears genuinely unclear — even to those most involved with it.

There is little question that the bill, HB22-1326, will pass. But how it looks when that happens is yet to be determined. The bill’s main architect, Denver Democrat and House Speaker Alec Garnett told The Denver Post he doesn’t know what will happen next.

Entering Thursday, the bill stated — among many other things — that anyone found to be in possession of 1 to 4 grams of fentanyl could face felony charges as long as prosecutors could prove the possessor was aware that their substance contained fentanyl. This was a much debated change in the first place, pitting law enforcement officials seeking stiffer criminal penalties against harm reduction and public health experts pleading with lawmakers to recognize that evidence shows a “tough on crime” approach won’t stop drug use or drug sales.

The requirement that felony charges be applied only to those who knowingly possessed fentanyl, or who reasonably should have known, was a critical guardrail on the proposal to introduce strict penalties for possession of fentanyl, which in many cases is laced into other drugs, unknown to those using them. That leaves unsuspecting people vulnerable, and increasingly so as fentanyl spoils the black market — a big reason the legislature feels so motivated to pass something before adjournment Wednesday.

In an 18-17 vote on Thursday, the Senate voted to remove the “knowingly” guardrail. That means the felony possession charge written into the bill could apply to anyone possessing even 1 gram of any substance that contains any amount of fentanyl — even a dusting — whether or not they had a clue their drug was laced.

It’s a major change to the bill, one that surprised many.

Said the bill’s Democratic Senate sponsor, Lakewood’s Brittany Pettersen: “That standard is really important because fentanyl has infected the entire drug supply chain, and so people unknowingly are buying fentanyl. And while most cases will just plea down from a felony to a misdemeanor … it’s important that people have the opportunity to prove their innocence if they truly did not know that fentanyl was part of their cocaine or Oxycodone.”

It was no shock when 14 Republicans in the Senate voted for this change; nor was it a surprise when moderate Democrats Joann Ginal of Fort Collins and Rachel Zenzinger of Arvada sided with the GOP.

Chris Hansen, a Denver Democrat considering a mayoral run, never made public his feelings on this aspect of the bill, but no one was alarmed when he too sided with the GOP. He told The Denver Post he said he came to his decision after speaking with Denver’s district attorney and sheriff.

But 14 Republicans plus Ginal, Zenzinger and Hansen still equals only 17 votes — not quite enough in a chamber of 35.

Those counting votes on this bill had banked on the chamber’s 15th and most centrist Republican, Henderson’s Kevin Priola, to vote to preserve the “knowingly” requirement. He did not.

He later told The Post, “I was fuzzy on it the whole time. We’re all tired. We’re all having short conversations. Everybody had counted me … but I was never super solid. I was still trying to contemplate.”

Priola said he eventually supported stripping “knowingly” because he wants prosecutors to have more flexibility in charging decisions.

Aurora Democrat Rhonda Fields also introduced some uncertainty when she she suggested in a speech on the Senate floor that she would vote to strip “knowingly” from the bill.

“After further review of the language,” Fields told The Post, “I changed my position.”

The Senate notably did not change several other key parts of the bill language around felony possession. An amendment to drop the threshold for the felony down from 1 gram to zero — a no-tolerance policy, essentially — was shot down.

So, too, was an amendment to keep the felony possession law in statute indefinitely. As it stands, the felony will repeal automatically in 2025.

The Senate is expected to take a third and final vote on the bill Friday. That will kick it back to the House, from which it originated. The House can vote to concur with the bill as amended in the Senate; to reject some or all Senate amendments; or to send the matter to what is known as a “conference committee” — a panel of six lawmakers tasked with making final decisions.