A coalition of law enforcement groups on Tuesday described state fentanyl legislation's current felony provision for simple possession as "practically meaningless," while a group representing district attorneys said that language renders the intended teeth in the legislation "almost useless."
The coalition, composed of the County Sheriffs of Colorado, the Colorado Association of Chiefs of Police and the Colorado Fraternal Order of Police, urged legislators to delete language that triggers the felony charge for possession above 1 gram of an illicit substance only if a person knew or should have known the drug contains fentanyl, an attempt to address the drug's ubiquitous presence in many other illicit substances.
That provision, the coalition said, "creates a remarkably high bar for law enforcement and district attorneys to prove and convict, making a felony charge for 1 to 4 grams practically meaningless."
The coalition's plea is but one among several voices that members of the Senate Judiciary Committee must weigh when they meet on Thursday to determine what could become the final contours of legislation that policymakers hope would confront Colorado's spiraling fentanyl crisis.
In particular, the committee must decide whether to accept the House's version, which notably makes it a felony to possess 1 gram of an illicit substance, a position that moves closer to — but fails to satisfy — law enforcement's plea for a tougher response.
The senators also face pressure from advocates on the opposite end of the debate, who criticize the bill's felony language, arguing it treats opioid addiction primarily as a criminal matter — which they maintain is the wrong approach — instead of a public health crisis.
In a statement, the law enforcement coalition countered that fentanyl possession is "not a victimless crime." The group also said the current version of the bill fails to address the severity of the crisis.
"We believe that the current version, as approved by the House, compromises the lives of Coloradans, since possession of less than 1 gram of fentanyl still comes with only minor consequences as a misdemeanor," Bill Ray, who speaks for a coalition of law enforcement groups, told Colorado Politics in a statement.
"Fentanyl possession is not a victimless crime, as noted by families and law enforcement who have testified on this bill. We must be able to protect our communities from all the crimes that come with increased drug activity, including violent and property crimes, as well as supporting the harm-reduction and treatment provisions in HB 1326 to fully address the crisis," Ray added.
The clash of tactics and ideology came into full view soon after legislators unveiled their response to the spiraling fentanyl crisis. Lawmakers have since struggled to find a compromise that law enforcement officials and advocates of non-criminal intervention can rally behind, even as the feuding sides press for a robust response to the opioid crisis.
Fatal overdoses have 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. A congressional report issued in February said a shift in the drug supply, coupled with the pandemic, drove deaths in the U.S. to historic highs and that fentanyl — or other synthetics like it — are here to stay.
More than 800 Coloradans died after ingesting fentanyl in 2021, according to state data. That represents a roughly 50% increase from 2020 and more than triple the number of deaths from 2019.
The Colorado District Attorneys' Council also urges legislators to strike the caveat that a person knew or should have known fentanyl is in a drug. The council supports the bill's current version, even when it doesn't adopt a zero-tolerance approach, although the group is pressing for amendments.
"That requirement makes this provision almost useless and very few prosecutions would be successful under this standard, as it essentially requires a person to admit they were trying to buy fentanyl — highly unlikely," Tom Raynes, the group's executive director, said in a statement.
Attorney General Phil Weiser, who said the bill’s approach to possession "needs further improvement," expressed the same wariness at the House's decision to add a "second mental state for also knowing the fentanyl purity level or mixture of drugs."
"Adding this new element makes it much more difficult to prove that the individual possessing the drugs has committed a crime," Weiser told committee members on Tuesday. "As a result, this change makes it far less likely that a DA may hold those with non-user-level amounts of fentanyl accountable. To avoid this result, the mental state assigned to this possession crime should be the same as that assigned to all other drug possession laws.”
Raynes said district attorneys also seek to unwind a three-year sunset in the bill that applies to the felony charge for simple possession of 1 to 4 grams of an illicit substance.
"The automatic repeal should also come out, as there is no logical basis since the introduced version already called for a review," Raynes said.
Some district attorneys also will likely push for changes relating to provisions that deal with distribution resulting in death to treat all such conduct the same, regardless of the quantity of drug.
Others will push to eliminate the bill's "Good Samaritan" provision, which allows a person who provides fentanyl to someone who overdoses, whether intentional or not, to face a lesser than a felony 1 drug charge, even if a recipient dies, if the person calls 911, stays on scene, and cooperates with first responders or law enforcement.
Advocates like Lisa Raville, executive director of the Harm Reduction Action Center in Denver, see that approach as wrongheaded. She earlier said incarceration has led the country to its current overdose crisis by driving drug use, with increasingly dangerous substances, underground.
Raville and others instead advocated for increased treatment, warning that felony convictions for users would only make their lives more difficult by denying them jobs and housing, which, they added, would make it harder for users to stay clean.
Ultimately, legislators will need to persuade Gov. Jared Polis to sign the final bill they send to his desk.
Polis, like Weiser and other law enforcement officials, is adamant that the crisis demands a "robust" response.
"Fentanyl is extremely deadly and Governor Polis continues to support tougher penalties for possession, which he called for in his state of the state address and continues to urge the legislature to get a comprehensive bill to his desk addressing this crisis, including making testing strips more available, increasing drug addiction treatment, and harsher criminal penalties for possessions and especially for dealing," Conor Cahill, the governor's spokesperson, told Colorado Politics in a statement.
In an interview with CPR News a few days ago, Polis equated fentanyl to poison.
"You have to think of fentanyl more as a poison than a drug. You remember when people were sending around the toxins in the Capitol, the white powder that was killing people, what was that?" he said. "Anthrax, right. So you think of it more like anthrax. You don't say, ‘OK, you have anthrax. We're going to send you to a place where we convince you not to have anthrax.’ You say, ‘Do you realize that 1 gram of fentanyl can kill over a thousand people?’ That's what we're talking about here. This is not cocaine. This is not even meth."