Colorado's legislators, who for months disagreed on a strategy to confront the state's spiraling fentanyl crisis, finally settled on a compromise and approved this year's most contentious legislation with barely more than an hour to spare before they're constitutionally required to end the 2022 session.
To escape the gridlock, the House and Senate appointed a conference committee, which came up with compromise language to close the divide between the chambers' competing solutions.
The House and Senate then gave the compromise their final approval, sending the measure to Gov. Jared Polis, who praised the measure and is expected to sign it.
"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,” Polis' office said.
The vote in the Senate wasn't easy – 10 of the 15 Senate Republicans voted against the compromise crafted by the conference committee.
House Bill 1326 ultimately cleared the Senate on a 27-8 vote with seven Republicans and Sen. Julie Gonzales, D-Denver, voting against.
The House debated the compromise for an hour, but finally approved it on a 46 to 18 vote. The bill's final vote in the House was 35 to 30.
Rep. Mike Lynch, R-Wellington, the bill's original co-sponsor, then asked to have his name removed from the bill, which now goes to the governor.
"This is the best we got," said Senate Minority Leader Chris Holbert, R-Douglas County, in calling for support for the compromise. Sen. John Cooke, R-Greeley, said he would support the change, based in part on a recommendation from the Weld County district attorney. The compromise is better than the House version, Cooke said.
But Sen. Bob Gardner, R-Colorado Springs, countered that the language provides an affirmative defense for anyone charged with a felony for 1-4 grams possession.
The compromise eliminates a three-year automatic repeal of the felony charges for simple possession of 1 to 4 grams of fentanyl, one of the many sticking points.
It also states that a person caught with 1 to 4 grams of fentanyl commits a Level 1 drug misdemeanor if the individual "had a reasonable, but mistaken, belief" that the drug "did not contain any quantity of fentanyl, carfentanil, benzimodazole opiate, or an analog thereof."
Supporters, including Rep. Kerry Tipper, D-Lakewood say a person could be charged with felony possession and it would be up to a jury to decide if the person "knowingly" possessed, based on questions and evidence, and then could reduce the charge to a misdemeanor if the person did not know.
The bill was then off to the House for its vote on the compromise and the final version.
The last-minute action avoided the possibility of the fentanyl bill dying and possibly necessitating a special session to hammer out an agreement and pass the legislation.
House Bill 22-1326 is Colorado's sweeping response to fatal overdoses, which surged nationwide over the past several years, as fentanyl, which is stronger than heroin and lethal in small doses, became an increasingly dominant presence in the illicit drug market. In Colorado, more than 800 people died after ingesting fentanyl in 2021, according to state data.
Broadly speaking, the bill tightens penalties for people convicted of distributing fentanyl, particularly when the drug use results in death; emphasizes a key treatment option in jails and support for people recently released from incarceration; and, funds a statewide education program. It would also set aside $20 million to buy more Naloxone and fentanyl test strips, among other provisions.
Among the most contentious issues revolved around what's known as intent – whether users knew or should have known that what they possessed contained fentanyl in it.
The bill that came out of the House included language that said if users didn't know, they couldn't be charged with a felony. The Senate struck that language, setting off the dispute that threatened the bill's passage as the session clock winded down.
Rep. Kerry Tipper, D-Lakewood, a member of the conference committee, said the compromise would still allow law enforcement to arrest and charge someone who has 1 to 4 grams of fentanyl with a felony. It would be up to a jury to decide, through processes already in place, whether the defendant knew they possessed fentanyl.
Rep. Leslie Herod, D-Denver, who has been among the bill's strongest advocates for adopting the House version, told Colorado Politics she supports the compromise.
"It's a good standard. It keeps the prosecution having to prove someone knew they had fentanyl. It still allows someone who didn't know they had fentanyl to still have a pathway to justice. They won't have the felony or that [criminal] record. The big parts of the bill remain intact: high level dealers get higher offenses for having fentanyl; the harm reduction and treatment in this bill are unparalleled," she said.
Medically-assisted treatment will be available in jails, and that will save lives, she added.
Much of the debate the last several weeks centered on the criminal penalties leveled at people who are caught possessing fentanyl. For harm reduction advocates, the change is an unacceptable return to what they describe as the failed policies of the "War on Drugs." For law enforcement, setting the felony threshold at 1 gram is not enough: As far as many district attorneys, sheriffs and police chiefs, possessing any amount of fentanyl should be a felony.
"We’re in support of more Naloxone," physician Sarah Rowan said in committee. "We need much more treatment, as my colleagues have said. So, we are worried that the harms from more legal problems for our patients will outweigh the benefit of this bill."
For law enforcement, fentanyl's high potency makes it too dangerous to allow on the streets in any quantity.
"There is no safe amount of fentanyl to possess,” Greg Sader, the deputy chief of the Commerce City Police Department, told lawmakers after he recounted what many suspected was an accidental overdose deaths of five people in February who thought they were ingesting cocaine.
In addition to seeking a felony charge for any amount of fentanyl possession, Sader and other law enforcement officials advocated that the committee remove language saying that individuals must know or should've known the drug they possessed included fentanyl in order for the felony charge to kick in. The language addresses a key nuance: Fentanyl has permeated the drug supply, and many users of other substances, such as meth, cocaine, heroin or pills that look legitimate, don't realize what they have.
But requiring they know or should've known would make prosecution impossible, district attorneys said. Michael Dougherty, the top prosecutor overseeing Boulder County, said that while the language has "good intentions," it would make the law itself "unworkable," short of a full confession.
Brian Mason, the district attorney for Adams and Broomfield counties, said including that language would essentially undo the changes to felony charges the bill would make.
Reporter Seth Klamann contributed to this story
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