Colorado legislatures plan to combat fentanyl includes harsher penalties for dealers, treatment

A new, bipartisan statehouse bill that will be unveiled this week includes stiffer criminal penalties for those who distribute fentanyl — though not for those who merely possess it — and millions of dollars for life-saving Narcan and naloxone, test strips and jail-based drug treatment.

It is the product of a months-long process, as Gov. Jared Polis and lawmakers from both sides of the aisle entered this year’s legislative session vowing to reverse the state’s exponential rise in fentanyl overdose deaths and crack down on the merchants of this lethal opioid.

Fentanyl is a synthetic opioid that is more potent and more addictive than many other opioids. Pharmaceutical fentanyl is prescribed by doctors as a painkiller, but an influx of illegally-manufactured fentanyl has flooded the U.S. illegal drug market.

Illegal drug manufacturers mix fentanyl into other substances because it is cheaper to produce. That means people who think they’re buying other drugs, like oxycodone or heroin, can be unsuspectingly buying and consuming fentanyl, which can be fatal in tiny amounts. At least 767 people died of fentanyl overdoses in Colorado last year, though delays in state data reporting mean the real number is likely higher.

Polis, House Speaker Alec Garnett and others met with The Denver Post Wednesday morning to discuss the bill.

“We are answering the call that we are hearing about helping get these people who are profiting from this poison off of the street,” said Garnett, a Denver Democrat who will join with another Democrat and two Republicans in sponsoring the bill.

Of the harm-reduction aspects of the bill, Garnett added, “We’re not going to stop recreational drug use, but this is going to help make sure people have the resources they need … to make sure this isn’t the last deadly drug that they may take.”

What’s in the bill?

According to a summary of the bill and interviews with those working on it, the bill set to debut Thursday will include the following provisions:

  • Increased penalties for people selling fentanyl
  • A distribution-resulting-in-death criminal statute that makes people who sell fentanyl that causes an overdose liable for sentencing under the state’s harshest felony drug charge
  • Requirement that some people arrested for possession of fentanyl undergo mandatory treatment
  • A statewide overdose education campaign
  • $20 million for state health department to purchase Naloxone and more money – no dollar amount has yet been specified – to create a bulk purchase fund for fentanyl test strips
  • $3 million to expand medication-assisted treatment in county jails

Polis appeared especially bullish on the test strips, saying that by getting more drugs tested in more places, authorities will be better equipped to trace drugs laced with fentanyl to their sources, “rather than having to follow a trail of dead bodies.”

The new crime of fentanyl distribution resulting in death would be punishable by between eight to 32 years in prison and up to $1,000,000 in fines. Prosecutors would not have to prove that dealers knew they were selling fentanyl under the statute to bring a case. Dealers should know what they are selling, Garnett said.

“We cannot be shielding people who are selling drugs in an environment where fentanyl is showing up more than it ever has,” Garnett said.

People will be immune from distribution resulting in death charges if under the state’s Good Samaritan Law if they report an overdose, though they could still face other charges, Garnett said.

More than a dozen people have been charged with distribution resulting in death in Colorado’s federal court under the federal version of the law. The first case was filed in 2017, though the majority have been filed in the last two years, court records show.

The bill also significantly lowers the weight thresholds for more serious penalties for fentanyl distribution, according to a fact sheet about the bill. For example, possessing more than 225 grams with possession to distribute is a level one drug felony under current law punishable by up to 32 years in prison. Under the bill, the threshold for a level one drug felony would be 50 grams of fentanyl. The law uses compound weights, meaning the total weight of the pill or powder, regardless of how much of that weight is fentanyl.

“The numbers that were in place for other non-synthetic drugs just didn’t make sense for this,” said Mesa County District Attorney Dan Rubinstein, a Republican.

Critics already

The bill isn’t out yet, but it’s already subject to partisan criticism. The conservative editorial board of the Colorado Springs Gazette called the bill a “copout” because it doesn’t include new punishment for fentanyl possession. Conservative political operative Michael Fields said Wednesday morning that he and allies would continue running ads and mailers pressuring Polis and the legislature to “actually fix this problem.”

These conservatives and many others have called on the legislature to overturn a bipartisan 2019 state law that defelonized drug possession. The upcoming bill does not propose to reverse that policy.

Experts on drug use and those who work closely with people who use drugs are also concerned by this proposal.

“Incarcerating drug dealers has little or no impact on disrupting drug supplies because the drug market is dynamic,” reads a new policy brief from the progressive Colorado Criminal Justice Reform Coalition and the Denver-based Harm Reduction Action Center. “It responds to the demand for drugs by replacing imprisoned sellers with either new recruits or increased drug selling by existing dealers, which is known as the ‘replacement effect.’”

It doesn’t appear that the backers of this bill will be willing to budge much there. Polis and Garnett both described increased punishment for distributors as core to their project.

“This approach of tougher criminal penalties for those who are dealing death,” the governor said, “is absolutely appropriate and needed.”

That critical progressive policy brief also argued against increasing criminal penalties for people who distribute to someone who ends up dying of overdose.

“There is no systematic empirical evidence that (such) prosecutions slow the sale of illegal drugs,” the brief reads.

Lisa Raville, director of the Harm Reduction Action Center, said legislators are missing an opportunity to legalize sites at which people could use drugs safely and under supervision.

“That can save somebody’s life today,” Raville said.

Many lawmakers agree, but the Democrats in the statehouse majority have long seen these sites as too politically toxic to touch.

Raville added, “I know it’s an election year, but they’re having no trouble doubling down on the worst ideas of the drug war, which are incarceration and criminalization.”

Harm-reduction experts like her are glad that the bill doesn’t propose extra punishment for possession of fentanyl – but there’s disagreement on that approach even among the bill’s own sponsors.

“It doesn’t fix the underlying problem of … possession,” Larimer County Republican state Rep. Mike Lynch, whose name will appear alongside Garnett’s on the bill, said in an interview Wednesday morning. “We’ll see. We’re working through it.”

Garnett defended the fact that the bill does not raise penalties for those who possess fentanyl. That aspect is certain to be subject to much debate as the bill moves through the legislative process.

“We are trying to help those people who are suffering from substance abuse without threatening a felony on top of that,” Garnett said. “It is proven through data that that’s not an effective public policy tool.”

Denver Post staff writer Nick Coltrain contributed to this report.

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