A coalition of law enforcement organizations on Thursday criticized a sweeping approach to the fentanyl crisis in Colorado, saying it doesn't do enough to crack down on those who possess the deadly drug.
But harm reduction and addiction experts have taken the opposite position, warning that proposed changes to the state's drug code would have unintended consequences and send more people struggling with a variety of addictions into the criminal justice system.
The disagreement gets at the heart of the challenge fentanyl poses to anyone attempting to stem its distribution or help its users. The drug's potency and lethality in small quantities pose complications to attempts to lower penalties for all substance use, and its presence in other drugs makes targeting it specifically nearly impossible. After decades of a drug war, the United States is facing its worst-ever overdose crisis, prompting harm reduction advocates to call for a shift away from incarceration. But that same overdose rate is drawing outcries from law enforcement and other public officials, who decry that state policies have restricted their ability to respond to the crisis.
Fentanyl's unique properties do not make it an easy drug to legislate. A synthetic opioid, used legitimately as an anesthetic, fentanyl is potent and deadly in small doses, and it has increasingly displaced heroin on the street, experts say. Unlike legitimate opioid pills, with strict dosing and quality standards, fentanyl is created and pressed into shape by drug manufacturers, and its presence is increasingly found in other drugs, from heroin to cocaine.
In Colorado, deaths tied to fentanyl have erupted since 2015, increasing nearly 20 fold to more 800 deaths in 2021. As lawmakers and advocates began working to address the crisis, they had to parse out how to legislate a drug powerful enough to kill in small quantities and present in other substances without "obliterating," as Christie Donner of the Colorado Criminal Justice Reform Coalition put it, the work policymakers have done to lower penalties for illicit substance use.
The result was released this week: A bill that would, among other things, tighten criminal penalties for possession with intent to distribute any amount of a substance or mixture containing fentanyl.
While state leaders praised the measure, multiple groups battling the crisis on the front-liners remain critical.
The law enforcement groups, representing the state's county sheriffs, police chiefs and the state Fraternal Order of Police, said in a joint statement that the bill draft "falls short of protecting our communities" because it doesn't "re-establish firm criminal consequences for dealing and possessing deadly amounts of this dangerous drug." They criticized a bipartisan 2019 bill that made it a misdemeanor to possess up to 4 grams of many substances, including fentanyl.
They praised harm-reduction provisions of the bill – which include improved treatment in correctional settings, more money for naloxone and a statewide education campaign – as "critically important components" of the response to fentanyl. But they said failing to make possession of any amount of fentanyl a felony will "only lead to more tragedy for Coloradans."
"This drug is so deadly that possession of any amount should have a felony consequence," the groups wrote. "Since no amount of fentanyl is safe, this coalition will seek amendments to elevate 'simple possession' to a felony."
Paul Pazen, Denver's police chief, said on Wednesday that no amount of fentanyl is safe on the city's streets and that more than one person on average is dying from a fatal drug overdose in Colorado's capital city every day. He said he doesn't know how anyone could justify allowing possession of up to 4 grams of fentanyl to remain a misdemeanor.
Asked if the coalition would oppose the draft as written, spokesman Bill Ray said in an email the groups will work to amend it but won't take a position until it's been formally introduced before the legislature. Asked if he otherwise supports the elements of the draft, Pazen re-iterated that he feels no amount of fentanyl is safe and possessing it should warrant a felony.
But public health and harm reduction experts warned that the language already in the legislation, which tightens laws and penalties for those convicted of possessing and intending to distribute substances containing fentanyl, will have unintended consequences and that cracking down on simple possession will ensnare a broad swath of drug users statewide.
Don Stader, an addiction medicine physician and the founder of the Colorado Naloxone Project, said he is concerned about the draft of the bill released this week. As written this week, the draft would tighten intent to distribute laws for any substance containing fentanyl. But because fentanyl is increasingly found in other substances, primarily heroin but also in meth and cocaine, people caught with smaller amounts of those drugs would be roped in, he said, whether they knew fentanyl was present in the substances or not.
As the bill is drafted now, Stader thought the proposed change would incarcerate many people addicted to fentanyl who never intended to distribute fentanyl or other substances.
Lisa Raville, of the Harm Reduction Action Center, echoed that sentiment and argued that many users also sell to pay for their own use.
Raville and others said they are even more concerned about what law enforcement seek: making possession of any amount of a substance containing fentanyl a felony. Because fentanyl can be present in other substances, she said, "all drug possessions would be felonies."
"We have an unpredictable drug supply, so a lot of people are going to be walking around with fentanyl and have no idea," she said. The result, she continued, would be more felonies, which would translate to more people struggling with employment and housing.
Despite its intense lethality and potency, fentanyl is knowingly ingested by many opioid users because heroin is increasingly difficult to find on the streets and because of their addiction, Raville and Donner, of the reform coalition, said. For people with an opioid-use disorder, the choice is withdrawal, often without treatment or support, or what substance is available on the street, they said.
Raville said making possession of any amount of fentanyl a felony would incarcerate a broad swath of people who may or may not know what they're taking. Donner said it would "obliterate" changes to Colorado's drug laws, which have shifted toward misdemeanors and emphasized treatment for low-level drug possession.
Where there is universal agreement on is the problem will not go away.