While state law provides prosecutors with the ability to charge for murder, manslaughter or criminally negligent homicide, some district attorneys wish they had another tool to go after those who distribute fentanyl resulting in a person’s death.

“Proving that someone distributed a drug with the intent to kill someone else is very hard,” said Brian Mason, district attorney of the 17th Judicial District in Adams and Broomfield counties. “It’s hard in part because it’s against that drug dealer’s interest. A drug dealer doesn’t want to kill all of their clients or they won’t have someone to sell to. And yet, they’re distributing drugs laced with fentanyl that are killing people.”

Other states, including Pennsylvania and Washington, have laws specifically prohibiting the delivery or distribution of fentanyl resulting in death. Federal law also contains a similar provision for drugs in the same class as fentanyl, imposing a term of 20 years to life for those found guilty. Colorado’s existing laws have varying “mens rea” – or mental states – to be proven when prosecuting someone for a death.

Michael Dougherty, the district attorney for Boulder County, estimated that combating rising deaths due to fentanyl overdoses would require an equal mix of law enforcement resources, restorative justice and diversion, and broader statutory authority to charge.

“We’re seeing a battle between people saying, ‘Don’t incarcerate drug addicts,’ which I agree with, and I don’t think we should go back to those days,” Dougherty said. “And then we have people saying, ‘People are dying and we need stiffer penalties.’ And I agree with that. I think both things are true.”

The Denver Gazette reported there were at least 800 deaths from illegal fentanyl in Colorado last year, and a 403% increase in the number of pounds of fentanyl seized from highways between 2017 and 2021 according to CPR. Fentanyl, a powerful synthetic opioid, is highly addictive, and overdoses can lead to death. People who use heroin, cocaine or other drugs may unknowingly be overdosing on fentanyl.

U.S. Attorney for Colorado Cole Finegan, the top federal prosecutor in Colorado, wrote last month in The Denver Gazette that a longtime family friend had died from fentanyl, and added that “more and more Coloradans are fooled into taking this deadly drug.”

“It’s fairly straightforward in terms of charging the crime” under the federal distribution resulting in death law, Finegan told Colorado Politics. “It gets more complicated in terms of the cause of death.”

He elaborated that it would require proof that fentanyl caused a person’s death, as opposed to some other substance. Since he took office late last year, Finegan’s office has announced two sentences imposed federally for distribution resulting in death. Both men received roughly 14-year sentences for selling fentanyl-containing counterfeit pills.

Dougherty said in Colorado, the investigation of a fentanyl overdose can examine who the victim was with, what they were doing and what they were ingesting, as well as their longer history of substance use. He described the inquiries as resource intensive, and noted that not all fentanyl deaths involve the same set of facts.

“The most obvious, and rarely ever seen, would be if someone laced a substance with fentanyl, intentionally and after deliberation, in an attempt to kill someone else. That would be first-degree murder,” he said.

On the other end, he brought up a hypothetical boyfriend who unknowingly gives his girlfriend a pill containing fentanyl, only to wake up and find her dead. That would not be murder or manslaughter, Dougherty explained, because the boyfriend lacked the culpable mental state.

“Arguably, he could be charged with distribution, but I’d be hard pressed to find a prosecutor who thinks it’s appropriate to charge,” he said.

Mason echoed that fentanyl-related cases are challenging to bring to completion. It is difficult, he said, to trace who was ultimately responsible for the distribution when important witnesses may be dead.

“We frequently collaborate with the U.S. attorney’s office, with the Drug Enforcement Administration on these cases,” he said. “We make the decision together and decide who is in a better place to build a case” that would charge a defendant with causing death.

Finegan declined to say precisely how law enforcement reaches a decision about whether to charge someone under federal or state law for a fentanyl-related crime, but indicated that the decision depends upon whether a particular set of facts points to a violation of federal statute.

“I don’t know what breakthroughs or processes we may develop. I mean, 25 years ago, nobody really knew about the use of DNA,” he said. “Perhaps there will be breakthroughs in the future but right now, it’s a complicated, tedious process in terms of trying to link who provided the drug with the cause of death.”