As the opioid overdose epidemic rages nationally and in Colorado, those impacted, including affected community members, law enforcement and medical professionals like ourselves, are compelled to minimize the tragic loss of life and other terrible consequences associated with fentanyl use. State lawmakers feel similar, as they consider a myriad of interventions included in HB22-1326. Among the many proposals under consideration, we believe that increasing criminal penalties for possession of small amounts of drugs would hurt vulnerable individuals and waste money without impacting drug use or overdose deaths. This provision has been contentious as the bill has been debated in the House.

Some urge for zero tolerance for fentanyl and blame HB19-1263 for the crisis. However, that bill was bipartisan and common sense; lessening penalties for possession of small amounts of drugs, up to four grams, from a level-four felony to a class-1 misdemeanor. A pill containing any amount of fentanyl can be considered pure by law enforcement, so four grams of fentanyl tablets may represent around 40 tablets. This is a small supply of drugs for an opioid-tolerant individual; we regularly care for patients using upward of 50 tablets of fentanyl per day.

It is unlikely that HB19-1263 was responsible for the rise of fentanyl deaths in Colorado. Tougher drug penalties do not seem to be associated with a reduced overdose rate. Compare Colorado’s rise in opioid deaths to states that didn’t change possession penalties. Arizona, which maintained their steep penalties for opioid possession, noted a 28.5% increase in drug overdose deaths between May 2020 and April 2021, compared to a 34% increase in Colorado during the same time interval per data from the Centers for Disease Control and Prevention.

The bill has now passed the house with an amendment to felonize possession of more than one gram of fentanyl. This is hardly high-level interdiction, and 50 years of failed drug war policies provide clear evidence that increasing penalties for possessing small amounts of drugs increases incarceration, particularly among communities of color, without reducing drug importation, use or overdose deaths.

Even the federal government has discarded recommendations for stiffer penalties for low-level use and distribution. Last month, the Congressional Commission on Combating Synthetic Opioid Trafficking released a comprehensive report to serve as a road map for reducing overdose deaths. The report’s summary recommendations include intensifying interdiction by reducing the flow of precursor chemicals from China to Mexico, disrupting drug cartel money laundering and other larger scale interventions. The report also identifies the crucial importance of reducing drug demand in the United States, by focusing on public health approaches including access to treatment, harm reduction and evidence-informed prevention efforts. Nowhere does this bipartisan, comprehensive report suggest increasing penalties for persons that use drugs as an effective strategy.

Taxpayers interested in responsible spending should be outraged by efforts to stiffen penalties for persons that use drugs, which could siphon money away from proven treatment, prevention and harm-reduction efforts in favor of supporting increasing numbers of individuals with non-violent offenses in jail. The fiscal note associated with this bill includes an estimated $4.6 million alone to increase prison bed space.

Colorado is not meeting the needs of our state’s most vulnerable. Colorado has the highest prevalence of substance-use disorder in all of 50 U.S. states (surpassed only by the District of Columbia) and the state with the third-largest unmet need for mental health treatment, according to the non-profit group Mental Health America. Streamlining access and increasing treatment funding through novel approaches, such as by creating new state enterprise funds, would save lives and improve the health of Coloradans while avoiding a return to the ineffective and unjust policies of the drug war.

As addiction-treatment professionals, we encourage lawmakers to focus on opportunities to increase access to evidence-based and evidence-informed treatment, prevention and harm-reduction interventions (e.g. expanding access to the opioid reversal agent naloxone and fentanyl test strips), rather than on stiffening ineffective criminal penalties.

Joshua Blum, M.D., Stephanie Stewart, M.D., MPHS, and Julie Taub, M.D., are addiction-medicine physicians and members of the Colorado Society of Addiction Medicine (COSAM). Blum serves as COSAM‘s president.