Colorado Senate votes to felonize fentanyl possession, knowing or not

Republicans and Democrats in the Colorado General Assembly want to stop people from taking drugs that contain fentanyl, sometimes without their knowledge, and dying.

But the bill targeting Colorado’s fentanyl problem has sharply divided legislators within both political parties, as they’re forced to weigh the consequences of increasing criminal penalties for drug use in a state that’s trended toward reform.

In a late-session development, the Senate voted Thursday to remove language that would have required prosecutors to prove someone “knew or had reasonable cause to believe” a substance contained fentanyl in order to convict them of felony possession. Prosecutors had argued that standard would “essentially require a confession,” making it more difficult for them to go after offenders.

The issue comes with big political stakes and bigger public health consequences.

House Bill 22-1326 — sponsored by House Majority Leader Alec Garnett, a Denver Democrat, and Rep. Mike Lynch, a Wellington Republican, along with Sens. Brittany Pettersen, a Lakewood Democrat, and John Cooke, a Republican from Greeley — comes in response to an overdose crisis in Colorado driven in large part by fentanyl, a synthetic opioid that is 50 times more powerful than heroin.

Last year, the Colorado Department of Public Health and Environment recorded 1,842 total drug overdose deaths in the state, according to preliminary data that Vital Statistics Program manager Kirk Bol provided Newsline on April 22. Though the number of deaths could change before data is finalized later this month, that is the highest total in recent history, and it represents a 24% increase from 2020, when 1,477 people died of drug overdose. An estimated 903 of the overdose deaths in 2021 involved fentanyl.

The legislation designed to combat the crisis has driven a wedge between proponents of harm reduction, which emphasizes public education, drug testing and availability of the opioid overdose reversal drug naloxone; and prosecutors and police who spoke repeatedly about the need for greater “tools” to go after people dealing drugs that contain fentanyl. Across the country, fentanyl has become a drug of choice for many former heroin users, and it’s frequently found in substances ranging from cocaine to meth to fake prescription painkillers.

Dr. Josh Barocas, an infectious disease physician and researcher based in Denver, works with patients who’ve experienced overdose or drug-related infections. He said he doesn’t remember the last time he’s seen a urine toxicology screen that didn’t contain fentanyl.

“Fentanyl is essentially ubiquitous in the drug supply, whether it’s mixed with oxy, whether it’s mixed with heroin, whether it’s cutting cocaine, whether it’s cutting the meth,” Barocas, who opposes HB-1326, told Newsline. Barocas has argued that many of the policies contained in the legislation — including mandatory drug treatment for offenders — fail to deter people from using drugs, according to his and other research.

While the introduced version of HB-1326 focused on lowering the amounts of fentanyl compounds that would be needed to charge someone with various levels of felony distribution crimes, an amendment to the bill in a House committee increased penalties for so-called “simple possession” of more than 1 gram of a substance containing fentanyl, which typically means about 10 pills.

Currently, possession of up to 4 grams of most schedule I and II controlled substances is a misdemeanor in Colorado. But prosecutors argued the ability to charge someone with a felony for possessing small amounts of the drug was needed to get people into treatment and go after high-level dealers.

A group of lawmakers, consisting mostly of Republicans, believe felonizing possession of more than a gram didn’t go far enough. They wanted to see a bill that made possession of any amount of a fentanyl compound a felony in Colorado.

“This bill is just working around the edges,” said Sen. Barbara Kirkmeyer, a Brighton Republican. “It’s not addressing the problem that law enforcement brought to us.”

Some Republican state lawmakers and party leaders have argued that a bipartisan 2019 law that made possession of most schedule I and II controlled substances a misdemeanor, instead of a felony, has contributed to the rise in overdose deaths. However, deaths have been trending upward throughout the country, including in states with more stringent penalties in place.

Amendments to felonize possession of any amount failed in both the Senate and the House of Representatives, despite garnering support from some members of both parties. The change that did survive — removal of the "knew or had reasonable cause to believe" standard — came at the request of district attorneys across the state.

"District Attorneys are required by law to prove all elements of a case beyond a reasonable doubt," the Colorado District Attorneys Council, which lobbies for the state's top prosecutors, said in a statement provided to Newsline by CDAC spokesperson Elizabeth Schrack.

"The language 'knew or have reasonable cause to believe' creates a new standard for fentanyl that is unlike any other drug possession charge," the statement continued. "In order to charge a person with this additional element, it will essentially require a confession by the defendant that what they have contains fentanyl. Because all suspects have the right to remain silent, this makes it very unlikely."

Weld County District Attorney Michael Rourke said the change represented a "significant improvement" to the bill. "Law enforcement and DAs alike have all said ... (if) that language remains in there, it will render that portion of the statute un-prosecutable," he told Newsline. District attorneys are talking to House lawmakers to try to ensure they approve the Senate's change, Rourke said.

Other lawmakers, including bill sponsor Pettersen, wanted that standard to remain in the bill language. They pointed out that many of the Coloradans who died of a fentanyl overdose had consumed what they thought was something else, like an oxycodone pill or unadulterated cocaine.

Sen. Nick Hinrichsen, a Pueblo Democrat, spoke about his uncle, Craig, who died of an overdose after using cocaine cut with fentanyl.

"My uncle needed help, and I wish he would have gotten it, and I wish he would have gotten treatment, and I wish he could have stopped using drugs before he passed away," Hinrichsen said on the Senate floor Thursday. "But with that, Craig needed help specific to the drugs that he was using, and the drug in particular that he was using was cocaine, not fentanyl." It didn't make sense to prosecute people and force them into treatment for a drug they didn't know they had, Hinrichsen argued.

Harsher consequences draw progressive pushback

The increased criminal penalties included in HB-1326 have met fierce pushback from some progressive lawmakers and reform-minded organizations outside the Capitol. They argue that creating tougher consequences for people with small amounts of drugs echoes failed Prohibition-era and "War on Drugs"-brand policies.

The fentanyl crisis affects everyone, including state lawmakers, Taj Ashaheed, Department of Corrections programs development manager at the Second Chance Center, said on the steps of the Capitol building during an April 26 rally against HB-1326. “It’s going to be their sons and daughters, it’s going to be their nieces and nephews” punished by re-felonization of fentanyl possession, Ashaheed said.

Ashaheed called on legislators to provide more funding to the Second Chance Center and other organizations that provide reentry services to people leaving the criminal justice system. The resources will be needed to deal with the fallout from HB-1326, he said.

Amendments to HB-1326 after lawmakers voted to add the new felony possession language were meant to address concerns from harm reduction and criminal justice reform advocates, though they didn't win the support of Ashaheed and others. For example, under the most recent version of the bill, a person convicted of felony possession of more than 1 gram of fentanyl wouldn't be eligible for prison time. Instead, they would 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.

Moreover, someone convicted of possessing more than 1 but no more than 4 grams of a fentanyl compound could have the felony conviction removed from their record and replaced with a misdemeanor after they successfully completed drug treatment.

Other amendments added more funding for bulk purchases of the opioid overdose reversal drug naloxone, a fentanyl public education campaign, and withdrawal management services, commonly known as detox.

One provision that's remained in the bill despite drawing the ire of harm reduction advocates: the requirement for people convicted of crimes involving fentanyl to undergo mandatory drug treatment. The data is clear: Forcing people into treatment doesn't work, Barocas said. Moreover, there are already barriers to access for the drug users who desire treatment.

"Colorado currently has enough treatment providers to serve less than 20% of people who want treatment," Barocas said. "And by treatment, I’m going to be very clear that this means medications for opioid use disorder, buprenorphine and methadone being the preferred. When we talk about counseling and residential treatment ... it’s actually even harder, but at this point we do not have in Colorado the treatment capacity to treat everyone in the community that wants medications, which are the most effective form of treatment."

More legislative work ahead

In the Senate, HB-1326 passed on a vote of 24-8 Friday, with three lawmakers excused. The eight lawmakers who voted "no" included Republican Sens. Bob Gardner and Larry Liston of Colorado Springs, Barbara Kirkmeyer of Brighton, Paul Lundeen of Monument and Jerry Sonnenberg of Sterling; and Democratic Sens. Julie Gonzales of Denver, Pete Lee of Colorado Springs and Robert Rodriguez of Denver. Generally, Republicans who opposed HB-1326 argued that the criminal penalties for possession were not harsh enough, while Democrats who voted "no" said they opposed the increased criminalization of substance use.

In the House, HB-1326 passed on a mostly party-line vote of 43-22, with most Democrats in favor and most Republicans opposed. House Republicans who voted “yes” on April 25 were Reps. Richard Holtorf of Akron, Lynch, Janice Rich of Grand Junction, Shane Sandridge of Colorado Springs, Tonya Van Beber of Eaton, Kevin Van Winkle of Highlands Ranch and Dan Woog of Erie. The Democrats who voted “no” included Reps. Jennifer Bacon of Denver, Serena Gonzales-Gutierrez of Denver, Matt Gray of Broomfield, Chris Kennedy of Lakewood and Steven Woodrow of Denver. Some of those legislators voiced concerns about creating a new felony crime for drug possession.

HB-1326 now heads back to the House for consideration of the Senate's amendments. If House lawmakers choose to approve the changes, then the bill will head to the governor's desk. Otherwise, legislative leadership could appoint a conference committee to hash out the differences between the two chambers and reach a compromise. But time is quickly running out — the state Constitution requires lawmakers to adjourn on May 11.

"People, whether they be possessors or distributors of these poisons," Rourke said — referring to drugs containing fentanyl — "they know that there’s not a significant consequence for that prosecution. And so we can continue to try to charge people and try to hold them accountable as a misdemeanor, but without some significant consequence there’s not an incentive to curb that behavior or to stop that behavior."

Rourke said he particularly supports a provision in HB-1326 that makes it a level 1 drug felony to manufacture, distribute or sell any amount of a substance containing fentanyl if someone died from using or consuming it.

"Hopefully the Legislature gets this bill passed and we have those additional tools necessary either to hold people accountable, (or) to get them into drug treatment programs and drug courts so that there is an incentive to participate in those," Rourke said.