On April 13, the Fentanyl Accountability and Prevention Bill advanced in the state legislature, passing through the House Judiciary Committee in a 7-4 vote.
Prior to moving through the House Judiciary Committee, House Bill 1326 was amended following criticism from law enforcement, claiming the measure failed to modify a 2019 law classifying the possession of up to four grams of fentanyl as a misdemeanor. In doing so, critics cited fentanyl’s potential lethality at only 2-3 milligrams of consumption.
A bipartisan act sponsored by Colorado House Speaker Rep. Alec Garnett, State Rep. Mike Lynch and State Senators Brittany Pettersen and John Cooke, the bill primarily addresses criminal penalties associated with the unlawful possession and distribution of synthetic opioids.
The bill classifies the possession of any compound, mixture, preparation or material weighing more than four grams that contains any amount of fentanyl, carfentanil or an analog thereof as a level four drug felony. Carfentanil is utilized to anesthetize large animals, typically administered through tranquilizer darts.
The bill also designates a defendant as a special defender and classifies their unlawful possession and/or distribution as a level one drug felony should a person die as a proximate cause of consuming it.
The bill is a response to the rapid increase in overdose deaths as a result of fentanyl consumption in the state of Colorado. In 2019, Colorado enacted House Bill 1263, making the possession of up to four grams of drugs, including fentanyl, a misdemeanor for the first three convictions. The bill was designed to treat drug addiction as a public health issue rather than a criminal justice issue. The 2019 state law essentially encouraged judges to sentence those convicted of drug misdemeanors to probation rather than jail.
Since the bill’s enactment, Colorado’s overdose death rate increased dramatically from 16-18 deaths per 100,000 people to over 24. In 2021 alone, more than 900 Coloradans died from fentanyl overdoses — 360 more than in 2020. Of those who passed in 2021, 35 were between the ages of 10 and 18 and four were under the age of 10.
The severity of the fentanyl crisis in the state has not gone unnoticed by Cole Finegan, U.S. Attorney for the District of Colorado, and Michael Schneider, FBI Denver Special Agent in Charge.
“In the four months I’ve been U.S. Attorney, it’s been astonishing to watch what is happening with fentanyl. It is a public health crisis and a public safety crisis. Fentanyl is dangerous, scary and deadly. Our intent is to prosecute dealers and hold them accountable,” said Finegan, Colorado’s top federal prosecutor and chief federal law enforcement officer of Colorado.
“Disrupting drug trafficking organizations is a top priority for FBI Denver. At the same time, we recognize that lethal drugs like fentanyl are already here. Collaborations with our partners mean we can also find ways to bring justice to these criminal organizations even after they have caused death in our communities,” added Schneider.
Addressing the new bill, House Speaker Garnett said, “When it comes to providing tools for law enforcement and for prosecutors to go after people who are peddling this drug. This is a strong bill.” He added, “I know that people don’t think it’s a perfect bill. You’re never going to get the perfect bill when it comes to trying to address this crisis because there is no silver bullet. This isn’t the silver bullet. It is a recognition of the deadliness of fentanyl.”
Rep. Rod Bockenfeld expressed his concern about the increase in fentanyl deaths, saying, “We are in a tremendous crisis. We should go back to where we started … And we should put that power back in our elected district attorneys’ hands.”
Rep. Adrienne Benavidez called the bill an imperfect compromise. “This is something we may be able to get past this legislature, and that’s part of the sausage-making we do as legislators. I know the risk this policy does and the impact it has on individuals that are struggling with substance disorders. I think, though, this is the compromise that I can personally live with,” she said.
The policy risks of this new piece of legislation, as Rep. Benavidez invoked, are cited by criminal justice reformers and addiction specialists as the reintroduction of what are considered harsher criminal penalties, believing the new law will not deter the use of addictive drugs and cultivates greater instability through damaging people’s prospects for obtaining jobs and housing.
The new measure is now headed to the House Appropriations Committee. If approved there, the bill will go to the state’s house floor.
