The House of Representatives on Friday night approved a bill to address Colorado’s growing fentanyl crisis, after another hour-long debate on whether possession of the substance in any amount or its form, should be a crime.
So far, the rest of the House has said no, despite repeated efforts by some lawmakers. After five hours of debate, House Bill 1326, as written, would increase criminal penalties for distributing any amount of drugs and for dealers whose pills kill someone, and that actually a crime to possess more than one gram in any form. It is also setting aside millions to pay for drugs to reverse overdoses and test substances for fentanyl, while establishing education programs and advocating for a key prison treatment protocol.
The bill is a comprehensive, but not definitive, approach to combating fentanyl, said co-sponsors of House Speaker Alec Garnett, D-Denver, and Rep. Mike Lynch, R-Wellington.
“There’s still work to do,” Lynch said. “It’s by no means the magic bullet, but I think for us to ignore the work that’s been done in this area wouldn’t do it justice. We’ve done what we think we can do.”
The House action came two days after Governor Jared Polis told Colorado Public Radio that possession of any amount of the substance should be a crime, and he compared it to the anthrax. While Rep. Terri Carver, R-Colorado Springs and others insisted on the deadly nature of fentanyl, other members, such as Rep. Leslie Herod, D-Denver, lambasted what they described as efforts to incarcerate people with substance use disorders.
Incarceration dominated Friday’s debate. Significantly less time was spent on the less controversial provisions of the measure, which include a statewide education campaign; millions of dollars for Naloxone and test strips; and an increased emphasis on evidence-based treatment offers in prisons.
The arrival of fentanyl, a result of the changing drug supply and the effects of the pandemic, pits two forces against each other: the first is the recent drive to address drug use and possession more like a health problem and not a criminal problem. The other is the unique nature of fentanyl – a potent synthetic drug that has replaced heroin for many people struggling with addiction and is added, often without the user’s knowledge, to other substances, like methamphetamine and cocaine.
Carver, Polis, Attorney General Phil Weiser and others argue that the strength of fentanyl and its presence in other substances, with often deadly consequences, make it a unique threat that requires zero tolerance. Many in this camp also argue that incarcerating users is a way to keep them alive and get them treated.
Herod, Representatives Jennifer Bacon and Mike Weissman and various experts and advocates counter that the presence of fentanyl in other drugs is precisely why it cannot be made a crime: Making possession of any amount making fentanyl a crime, they argue, is de facto making possession any amount of any substance a crime, because much of the drug supply has been contaminated with fentanyl.
At the same time, they say, zero-tolerance possession will incarcerate people knowingly using fentanyl because they are physiologically dependent on it.
Carver repeatedly tried to tighten penalties for possession and distribution, each failing. She also tried unsuccessfully to end a clause in the bill that would end the 1 gram crime threshold in three years.
Speaking in support of one of Carver’s efforts, Rep. Rod Bockenfeld, R-Watkins, said the dealers are “indifferent” to the harm caused by their drugs.
“We keep worrying about addicts, rehabilitating them, getting their illicit drug through, knowing they can kill another person, and that’s okay?” he said. “I’ve listened to heartbreaking, heartbreaking stories from parents who didn’t know their child was on drugs.”
Herod pointed out earlier in the debate that the bill already dealt with dealers by increasing the penalties for distributing any amount of drugs. She and others pointed out that changing possession laws to zero tolerance would incarcerate many users of fentanyl and other substances, and permanently affect their lives by branding them as criminals.
Rep. Matt Soper, R-Delta, backed an effort to establish a zero-tolerance approach, but with a provision to turn sentencing into a misdemeanor for people who have completed mandatory treatment. Standing in opposition, Rep. Shane Sandridge, R-Colorado Springs, a former police officer, said incarceration “was attempted. Didn’t work.”
While praising law enforcement, Sandridge recommended lawmakers turn to “experts for our answers that show clear data about what’s going on.”
“What is the definition of doing the same thing over and over and expecting a different result?” he asked rhetorically.
The bill was amended on Friday to add an investigative grant program for law enforcement, addressing concerns raised by families that their loved ones died after taking fentanyl but their deaths have been cleared. as overdoses rather than homicides. They had asked for changes to force law enforcement to investigate these deaths.
HB 1326 now awaits a final vote in the House on Monday, then it will head to the Senate, where it will be sponsored by Sen. Brittany Pettersen, D-Lakewood, a longtime advocate for opioid treatment; and Senator John Cooke, R-Greeley, the former Weld County Sheriff.