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The controversial legislation to combat fentanyl, which killed more than 900 people in Colorado last year, officially became state law Wednesday.
Flanked by sponsoring lawmakers from both parties, law enforcement leaders and family members of people killed by fentanyl, Democratic Gov. Jared Polis signed HB22-1326 on the Capitol steps in Denver.
“Making Colorado one of the ten safest states over the next five years is one of our top priorities,” Polis said. “Frankly, across our state, people are simply fed up with the pain that this new and dangerous drug is inflicting in our communities.”
The bill promises a wide range of changes. For one, it directs $29 million toward harm-reduction tools including testing strips and lifesaving opioid antagonists such as Narcan and naloxone. It expands drug addiction treatment in jails, and requires that law enforcement funnel certain people suffering drug addiction into jail-based treatment programs. It also requires the state’s Department of Public Health and Environment to launch a public education program meant to inform people about the dangers of fentanyl.
But in a piece of legislation that runs 73 pages long, it was the particular subject of criminality that produced major controversy as the bill was being debated. The bill proposes harsher criminal penalties for people who sell fentanyl, and was indeed driven in large part by a desire from Polis and many other leading politicians to crack down on those who distribute fentanyl. Polis has called them “death dealers.”
Experts on drug use and addiction say that drug dealers are very often themselves drug addicts, and so it is not easy to cleanly distinguish between those who sell fentanyl and those who purchase it.
Colorado law prior to Wednesday stated that it is a misdemeanor offense to possess under four grams of a wide range of drugs, including fentanyl or fentanyl compound — that is, a mixture that contains some percentage of fentanyl. The new state law makes it a felony to possess at least one gram of fentanyl or fentanyl compound. This was the most hotly debated aspect of the bill, as a parade of harm-reduction experts and advocates urged lawmakers in committee hearings and on social media to resist further criminalization of simple drug possession.
Wrote Healthier Colorado CEO Jake Williams in an email wrapping the legislative session, “This tactic has failed time and again, and the research consistently shows that we should apply a public health strategy to this public health crisis.”
On the other side were law enforcement officials, most Republican lawmakers, some Democratic lawmakers and others who feel the bill does not go far enough with criminalization. Many pushed this legislature to adopt a “zero-tolerance” policy in which any form of fentanyl possession — whether a dusting or several grams, whether or not the possessor even knew they had any fentanyl on them — be deemed a felony offense.
John Suthers, the Republican Colorado Springs mayor and the former state attorney general, even urged Polis to veto the bill, calling it “wholly inadequate” in its restructuring of criminal penalties.
Polis himself has publicly supported felonizing fentanyl possession in any amount, but he also insisted the bill must become law whether or not it contained every provision he sought.
The bill’s primary architect, Denver Democrat and House Speaker Alec Garnett, has said he never wanted to increase penalties for possession, but that he did not have the votes to get the bill passed if he didn’t make those penalties somewhat harsher. Though he was ultimately successful in passing a bill that stopped short of “zero-tolerance,” he made many concessions along the way.
Among them was an end-of-session agreement to amend the bill to require that anyone charged with possession of one-to-four grams of fentanyl or fentanyl compound must prove that they did not knowingly possess the drug. A previous version of the bill had put the burden on prosecutors to prove knowing possession.
Sixty-two state lawmakers voted for the bill — 35 in the House and 27 in the Senate. The vast majority of the 38 who voted against the bill did so because of concerns with the penalties for possession. These 38 included Republicans who said the bill was too soft and Democrats who felt it was too severe.
Nonpartisan state analysts have not released updated projections based on the final version of HB22-1326, but earlier this month they estimated the bill would produce about 3,000 new fentanyl felonies annually in Colorado that previously would have been misdemeanors.
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