Colorado legislators wrestle with drug penalties as fentanyl deaths surge

DENVER — Colorado’s landmark 2019 law reducing penalties for most drugs was hailed by supporters as a triumph of treatment over punishment. Then more people started dying.

Now lawmakers in the state known for its permissive drug culture are backpedaling. Sitting on Democratic Gov. Jared Polis’ desk is a bill aimed at combating soaring fentanyl deaths by lowering the felony possession threshold from 4 grams of synthetic opioids to 1 gram.

“This legislation is a giant step forward in our fight to combat the fentanyl crisis, crack down on the dealers peddling death in our communities, and accelerate our state’s public health response to get this deadly drug off our streets and save lives,” House Speaker Alec Garnett, a Democrat, said after the bill’s passage.

Opponents see House Bill 1326 as more of a baby step. Law enforcement groups pushed unsuccessfully for the bill to charge any amount of compound fentanyl as a felony, given that 1 gram is still enough to kill hundreds of people. Dealers, however, have shown themselves adept at adapting to new laws.

“We heard from drug dealers. They know how to skirt the law,” said Republican state Sen. Barbara Kirkmeyer. “They said, ‘If you tell me it’s 4 grams, then I just sell 3.9. If you tell me it’s 1 gram, then I distribute less than 1 gram. And I do it every 15 minutes.’ They know how to get around the law, and they said that.”

The 2019 state “defelonization” law made it a level one misdemeanor to possess up to 4 grams of almost all drugs, instead of a level four felony. Since then, deaths from compound fentanyl overdoses and poisonings have tripled.

Fentanyl fatalities doubled from 222 in 2019 to 540 in 2020, then surged to about 800 in 2021, according to state figures compiled by the Common Sense Institute in Denver.

An April 2022 study by Catholic University of America researcher Stephen Cranney found that the 2019 law resulted in about 600-700 of those deaths.

Pressure to increase penalties intensified this year after a series of high-profile fentanyl deaths. In February, five young people were found dead in a Commerce City apartment in what were described as accidental overdoses after they took what they thought was cocaine.

In March, a 23-month-old girl died in Brighton after ingesting enough fentanyl to kill 10 adults. Her parents were charged with child abuse resulting in death and participating in illicit drug activity in the child’s presence.

Last year, two El Paso County brothers, ages 21 and 19, died on the same night from fentanyl overdoses after taking what they thought was OxyContin. The pills were laced with fentanyl.

Colorado Springs Mayor John Suthers and other critics have called on Mr. Polis to veto the bill and call a special session to take another attempt at the fentanyl crisis.

They note that the bill has several escape clauses for those facing felony charges. For example, defendants caught with 2 to 4 grams may plead down to misdemeanors if they argue successfully that they didn’t know the drugs in their possession contained fentanyl, which typically comes in compound form.

“The stark reality remains that someone in Colorado can possess enough fentanyl to kill hundreds of people and avoid serious consequences by merely asserting they didn’t know it was fentanyl,” said Mr. Suthers, the former state attorney general. “The Democrat majorities in the legislature have thus far shown themselves wholly incapable of adequately dealing with this public health crisis. I hope the governor will attempt to rectify the situation and I hope the voters of Colorado recognize this as the failure of leadership that it is.”

Those opposing the swing back to felonization include the Colorado Criminal Justice Reform Coalition, which advocates for a “harm reduction” approach to addiction.

“The recent push by law enforcement to re-felonize drug possession will not be effective in reducing drug use and is not supported by a majority of the community,” coalition Executive Director Christie Donner said in an April 6 statement. “Colorado voters think efforts to address drug use and addiction should focus on prevention and treatment, not punishment and incarceration. Making drug users felons is not the way to help them.”

Lisa Raville, who runs Denver’s Harm Reduction Action Center, blasted the bill, telling Colorado Politics that “Colorado is doubling down on the worst parts of the drug war, which are criminalization and incarceration.”

At the other end was George Brauchler, the former district attorney who prosecuted the 2012 Aurora theater shooting, who called the measure a “fake bill,” saying it fails to restore the credible felony threat used by prosecutors to prod offenders into rehab.

“Your drug courts are premised on the idea that there’s a carrot and a stick,” said Mr. Brauchler, who hosts a talk show on KNUS-AM. “If you do this intense wraparound service treatment and therapy, you don’t go to prison and you don’t get the felony conviction. But when you take away the felony conviction upfront, what incentive do you have to do it? Why wouldn’t you just be like, hey, convict me of the misdemeanor, and move on?”

Despite the concerns, Mr. Polis is expected to sign the measure, which includes $46 million for emergency treatment services, drugs such as Narcan that combat overdoses, testing strips to check for fentanyl and a three-year public education campaign.

“While people of good faith can quibble over the exact details of any bill, the governor sees this bill as a big step in the right direction to make Colorado safer for all,” his office said in a statement.

The issue is already surfacing in the 2022 election. Although a handful of GOP legislators voted for the 2019 “defelonization” law as well as this year’s bill, Democrats control both houses of the legislature and the governor’s office.

Ms. Kirkmeyer, who is running for the Republican nomination for the state’s newly created 8th Congressional District, released a video in March blaming “woke liberals” for the crisis. The primary is June 28.

“Deaths are on the rise because soft-on-crime Democrats decriminalized fentanyl, allowing drug dealers to walk free. It’s outrageous. And I’ll put an end to it,” Ms. Kirkmeyer said.

Mr. Brauchler, a Republican, characterized the bill as a fig leaf for Democrats as they head into the election season.

“Their press releases are all, ‘We’ve upped the penalties,’ but there’s not a single bit of mandatory premise under this,” he said. “It’s like they wanted to come out before November and say, ‘Hey, folks, we got the message, we’re going to be supertough on criminals,’ and then they can turn to the people on their left and say, ‘Don’t worry, nobody’s going to prison.’”