Colorado Legislature Passes Controversial Fentanyl Bill

“More than 900 Coloradans died of fentanyl last year — more than the number killed in homicides or traffic crashes,” reported the Denver Post in April. 

This month, the state reacted to the crisis by approving HB22-1326 but it took a conference committee appointed by the House and Senate to come up with compromise language to close the divide between the chambers’ competing solutions.

“Under the final version of the legislature’s much-debated and highly controversial bill to combat fentanyl, a person can be subject to a felony drug charge if they possess even a dusting of the lethal synthetic opioid, whether or not they realize that what they possess is indeed fentanyl,” wrote Alex Burness in the Post. 

But in a last-minute change, the legislature agreed to a path by which such offenders can turn that felony into a misdemeanor at trial. That path, however, puts the burden on the defendant to prove they did not know they had fentanyl. A previous version put the burden on prosecutors. The final version of the bill doesn’t make felony possession of any amount of fentanyl but rather possession of 1–4 grams of any substance containing any amount of fentanyl. 

Despite these compromises, critics maintain the bill relies too heavily on criminalization and tougher penalties. “I’m profoundly disappointed that after weeks of testimony by medical and public health experts warning of the negative consequences of this bill, Colorado legislators doubled down to further criminalize and punish people struggling with addiction,” addiction expert Sarah Axelrath told the Denver Post. “We have 50 years of data demonstrating that harsher criminalization does nothing to reduce rates of drug use or overdose… (and) will lead to higher rates of incarceration, homelessness, and fatal overdose in Colorado.”

The bill’s main sponsor, House Speaker Alec Garnett, had insisted repeatedly that Colorado must not criminalize people for simple drug possession but felt he didn’t have the votes to pass the law as it was before the changes.

“Garnett faced tremendous pressure,” wrote Burness in the Post, “including from the Democratic governor and attorney general, plus virtually all leading figures in Colorado law enforcement — to make it a felony to possess any amount of fentanyl, which is almost always found in compound form, mixed with other substances. He said he was unwilling to do that, but he made many concessions along the way.”

While there was pressure from law enforcement, HB1326 was written virtually without input from public health experts and passed over the vociferous objections of many of them. For many addiction experts, the bill augurs an unfortunate return to tactics used in the now much-discredited “War on Drugs,” with its focus on law enforcement and interdiction rather than treatment for addicted people. 

The situation is certainly urgent as fentanyl continues to kill more and more Americans. A few days ago, the Centers for Disease Control and Prevention published its latest estimate suggesting that more than 107,000 Americans died of drug overdoses last year, setting another tragic record in the nation’s escalating overdose epidemic. The provisional 2021 total translates to roughly one US overdose death every five minutes.

As the Associated Press reported “US overdose deaths have risen most years for more than two decades. The increase began in the 1990s with overdoses involving opioid painkillers, followed by waves of deaths led by other opioids like heroin and—most recently—illicit fentanyl.”

Overdose deaths are now frequently attributed to polydrug use. Some people take multiple drugs and the inexpensive synthetic opioid fentanyl has been increasingly cut into other drugs, often without the buyers’ knowledge.

Dr. Nora Volkow, the director of the National Institute on Drug Abuse, called the latest numbers “truly staggering.” She, too, argues that current laws and policies that criminalize and incarcerate people who use drugs are counter-productive, and exacerbate the current opioid overdose crisis and other addiction-related problems.

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