Will a new Colorado bill adequately address the fentanyl crisis?

The bill faces varying levels of support and criticism from stakeholders

A new Colorado House Bill seeks to address the mounting fentanyl crisis in the state.
David Zalubowski/AP file

As the fentanyl crisis continues to grow in Colorado, state legislators are attempting to initiate new accountability and prevention measures with the introduction of a new bill.

This comes as fentanyl continues to increase in prevalence and raise the threat level for overdoses not only across the state but in Eagle County. GRANITE, the Gore Range Narcotics Interdiction Team, continues to see high volumes of the substance in its seizures along the I-70 corridor. In 2021, the team seized 70 pounds — exclusively in counterfeit oxycodone M30 pills — along the corridor in Eagle County.

According to GRANITE Sergeant John Chiodo, the team has seized around 8 pounds of fentanyl so far in 2022.

House Bill 1326 was first introduced in late March by a bipartisan group of legislators. Since then, the bill has seen passed through both the House Judiciary and Appropriations Committee as well as a second reading in the House on Friday, April 22.

In a full House discussion of the bill on Friday afternoon, House Speaker Alec Garnett, a Denver Democrat and prime sponsor of the bill, introduced the bill as a “comprehensive approach to helping Colorado tackle the fentanyl crisis that is impacting our state right now.”

While the bill contains a number of methods for addressing the crisis — including education, harm reduction and prevention measures — much of the debate, discussion and amendments in the House and its committees have centered around penalties for possession of fentanyl.

The bill as currently written makes “unlawful possession of any material, compound, mixture, or preparation that weighs more than 4 grams and contains any amount of fentanyl, carfentanal, or an analog” a level 4 drug felony.

This current text was passed Friday on a second reading special order, striking amendments from the Judiciary Committee that would’ve made knowingly possessing “more than 1 gram and not more than four grams” of a substance with fentanyl or a fentanyl compound a felony.

According to the DEA, around 2 milligrams of fentanyl is considered a “potentially lethal dose.”

The Judiciary Committee’s amendment followed criticism from law enforcement officials that the 4-gram threshold was not enough. Gov. Jared Polis has also advocated for felony charges on any level of possession of fentanyl.

A position paper from the County Sheriffs of Colorado and the Colorado Association of Police stated that while the groups (including also the Colorado Fraternal Order of Police) were “united in their call for strong, bold measures against possession of any amount of fentanyl,” they felt the bill needed to be “significantly strengthened.”

The coalition’s position goes on to state that “possession of fentanyl no matter the amount” should be considered a felony — something that was discussed during the bill’s debate in front of the full House on Friday. One of the reasons given is that “misdemeanor for simple possession is not a strong enough deterrent to get fentanyl off our streets.”

The position also contemplates minimum sentencing requirements, a re-evaluation of Good Samaritan and immunity options as well as additional considerations for funding and resources.

The House bill also includes a number of other measures to tackle possession as well as increase harm reduction and education resources around fentanyl. This includes (but is not limited to):

  • Making it a level 1 drug felony to possess pill or tablet manufacturing equipment, used to mix fentanyl with other drugs
  • Making it a level 1 drug felony if an individual unlawfully distributed or sold a compound containing fentanyl, and an individual dies as a result of using it
  • Requiring, for certain offenses, court-ordered placement in a residential treatment facility
  • Requiring community corrections programs to assess individuals for certain withdrawal and medically-assisted treatment
  • $20 million for the state’s opiate antagonist bulk purchase fund, which namely includes Narcan
  • $300,000 for the purchase and distribution of fentanyl test strips
  • $6 million for a harm reduction grant program cash fund
  • A requirement for the department of public health and environment to start a statewide fentanyl education and prevention campaign
  • Permission for school district board of educations (or the private school equivalent) to acquire and maintain opiate test strips on school grounds

The bill — which contains the above measures and more — will still face significant debate and discourse before it has the potential of becoming law. It will face further debate and discourse in front of the full House on Monday, April 25.

Is the bill adequate?

In 2021, GRANITE seized 70 pounds of fentanyl along the I-70 corridor running through Eagle County. The fentanyl was found exclusively in counterfeit oxycodone M30 pills, like the ones pictured above.
GRANITE/Courtesy Photo

While law enforcement officials have pushed for stricter penalties, not all believe that the bill will adequately address the crisis at hand. Specifically, the bill has faced some criticism from harm reduction specialists and advocates.

Maggie Seldeen, founder of High Rockies Harm Reduction, said that she felt the bill would not be effective at all in reducing the risks of fentanyl.

“Fentanyl is already illegal and a felony at 4 grams (which is definitely a lot of fentanyl) and these laws have not stopped it from taking over the drug landscape,” Seldeen said. “Decriminalization is the only way to regulate drugs, except it gets confusing when we consider that fentanyl, heroin and meth are all drugs regularly used in medicine.”

Seldeen went on to say that because fentanyl can be hidden in a number of substances — “with all street drugs generally contaminated with fentanyl these days” — it adds a certain complexity.

“It just doesn’t add up, but we have tools and resources that can actually save lives, like Narcan and fentanyl test strips. The focus should be on education, prevention and fixing our treatment systems, not costly criminalization,” Seldeen said. “With this bill, recreational drug users lose, overdose victims lose, the taxpayers lose.”

While Seldeen did acknowledge and appreciate the inclusion of harm reduction and treatment measures in the bill’s language, she also said that “the focus on treatment is completely pointless if our treatment programs continue to be mismanaged and largely inaccessible.”

“We need to focus on systemically changing our behavioral health systems that have failed so many,” she added.

Not only that, but as the bill contemplates funds for harm reduction measures such as fentanyl test strips and Narcan as well as other treatment options, these things are already possible, Seldeen said.

“Laws in Colorado already allow for Narcan education and use in schools, for jails to give Naloxone and fentanyl test strips to inmates upon release, for jails to start individuals on Medication Assisted Treatment while incarcerated,” she said, later adding that “Stigma is the only thing holding schools and jails back from utilizing these services and prevention strategies. Opioid Settlement Funding and other government resources are providing more funding for harm reduction services than ever before, so it’s interesting that this bill chooses to focus on that as well.”

For Seldeen, the state’s focus should be on expanding access to drugs as well as decriminalizing and regulating drugs to “mitigate criminal elements of substance abuse.”

“In general, I don’t believe criminalizing mental health issues, which substance abuse and addiction absolutely are, is ever an effective answer to stemming these problems,” Seldeen said. “Having seen the world of substance abuse from all sides as an activist, addict and affected friend and family member, we need compassion, not criminalization.”

For Heidi McCollum, the district attorney for the 5th Judicial District, which spans Clear Creek, Eagle, Lake and Summit counties, possession laws are just “one piece of the puzzle in addressing the fentanyl crisis.”

“Charging someone with possession can result in additional community involvement to address other issues that a defendant may be struggling with,” McCollum said. “So while a defendant is in the criminal court system, community partners can in some instances be ordered to assist in providing a defendant with other services, such as mental health treatment, housing, or employment to name only a few.”

This whole puzzle also includes the harm reduction piece, which McCollum said was “an absolute necessity to tackling the issue,” adding that fentanyl test strips and Narcan distribution — while also not the whole piece — will both help save lives.

McCollum added that the intent of legislature, like this current bill, is more complex than simply reducing the amount of fentanyl in communities.

“Fentanyl is already here and the amount needed to cause multiple deaths is so small that it is impossible to ‘reduce’ its existence,” she said. “The intent or purpose of any legislation regarding the use, possession or distribution of fentanyl is to decrease the number of victims and to provide support systems to address addiction and mental health.”

Still, McCollum is not convinced that the current language of the House bill will have the intended impact.

“The specific language will make it extremely difficult to impossible to prosecute fentanyl possession charges. If this language remains in the bill, I anticipate that very few prosecutors’ offices across the state will file these charges,” McCollum said. “The question will then become, without a confession from a defendant, how do you prove that someone knew or should have known that the drug they possessed contained fentanyl?”

Regardless of the bill’s future, the fight to address the fentanyl crisis is likely to continue through efforts from law enforcement officials, doctors, educators, harm reduction specialists, legislatures and more.

“I feel like whatever happens on Capitol Hill, fentanyl is still going to be out here and so will us boots-on-the-ground activists, fighting to create greater awareness of and access to life-saving harm reduction services and supplies,” Seldeen said.

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