LATEST: Committee approves fentanyl bill on a narrow 3-2 vote

In all, the Senate Judiciary Committee reviewed 19 amendments and adopted 14, although many of them were technical in nature.

House Bill 1326 is now on its way to the Senate Appropriations Committee on a 3-2 vote, with Gardner and Gonzales voting “no.” the bill is expected to be heard on Friday morning. 

Panel rejects law enforcement-backed amendments 

Sen. Bob Gardner’s next two amendments both failed on 2-3 votes – the first would have taken out the language requiring a repeal in 2025 of the criminal aspects of the bill related to possession of 1 to 4 grams; the second dealt with the previous language that said distribution resulting in death carries a 12 to 32-year sentence for 50 grams or more of fentanyl.

Gardner’s amendment would have said any amount resulting in death carries a sentence of 12 to 32 years.

Gardner’s last amendment would have removed the bill’s Good Samaritan provision, although the legislator said he lauds the. It, too, failed, 2-3.

“It’s very disappointing the shape this bill is in,” he said, adding it’s not what the people of Colorado or his community expects.

Gonzales agreed – but from a different perspective. She said she appreciates the work the committee has done to listen to Coloradans from wildly different perspectives. However, despite the amendments to ameliorate some of the harm, she struggles with HB 1326, she said, arguing constituents know the criminalization of a substance use disorder is not the path forward. She added the measure needs more work.

“It’s not a perfect bill,” committee chair Sen. Pete Lee said. “I have struggles with this bill, but we put $30 million into harm reduction, the biggest investment of that kind of money ever, and increased penalties for distribution. But possession of 1 gram as a felony is tough to swallow.”

Amendment to make simple possession a felony offense fails 

Gardner’s first amendment would make any possession of fentanyl a felony – with a “wobbler,” giving the offender an opportunity to get into a probationary program, which, if successfully completed, the charge would be deferred and reduced to a misdemeanor. The amendment, which Cooke voted for, failed on a 2-3 vote.

The second Gardner amendment strikes language on “know or should have known” that the the drug provided by someone contained fentanyl. That language is tied to the felony possession charge the House approved. District attorneys and law enforcement officials said that’s almost impossible to prove. The amendment also strikes out language that said a test strip is not proof. The amendment failed on a 2-3 vote.  

Amendment ensures jails provide medication-assisted treatment  

7 p.m. A Cooke-offered amendment would ensure jails are providing medication-assisted treatment “and other appropriate withdrawal management care” to those with substance use disorders. Pettersen said it’s one of the most important things the state can do for individuals who go into jails with those disorders. The amendment comes with $3 million, and won unanimous approval.

Panel debates grant money for law enforcement investigations 

The first dispute over an amendment, between Cooke and Gonzales, occurred over investigations conducted by law enforcement.

Cooke’s amendment would include a grant program, but Gonzales said law enforcement shouldn’t get extra money to do their jobs.

Families who have lost loved ones to fentanyl on numerous occasions raised the need for investigations into fentanyl deaths. They said law enforcement didn’t investigate or even return phone calls, in some cases.

Pettersen said she supports Cooke. Gonzales attempted to take out the grant program, a motion that failed on a 1-4 vote, and the original amendment passed on a 4-1 vote. 

Panel adopts amendment to seek data on whether ‘felonization’ saves lives 

6:10 p.m. An amendment from Pettersen, requested by community corrections facilities, clarified they do not have to provide medical detox but can refer a person to medical detox. The amendment, which has implications for medication-assisted treatment in jails, was adopted.

While it isn’t an effort to change the simple possession felony in the bill, an amendment from Pettersen that the committee adopted seeks data on whether “felonizing” possession of fentanyl has the intended effect of saving lives. Vice-Chair Gonzales said scientists in the field suggested the amendment. 

Senate Judiciary Committee begins tackling amendments, adopting some

5:35 p.m. The Senate Judiciary Committee is now reviewing amendments to House Bill 1326, and from the early discussion, there are more than a few. 

Sen. John Cooke, R-Greeley, the bill’s co-sponsor, led off with an amendment tasking the Attorney General to do a study on how youth are using social media, such as Snapchat, to purchase fentanyl-laced drugs, and to issue a report on his findings. That report would go to the House and Senate judiciary committees. The amendment passed.

An amendment suggested by co-sponsor Sen. Brittany Pettersen, D-Lakewood, to allow pharmacies to provide opioid antagonists also won approval.

A Cooke amendment dealing with a more potent and upcoming form of opioids, known as ISO, also was added to the bill. 

Senate Judiciary to take up amendments to fentanyl bill this afternoon 

After an 11-hour hearing on Tuesday, the Senate Judiciary Committee is poised to tackle amendments to House 1326, the sweeping legislation policymakers hope will confront Colorado’s spiraling fentanyl crisis, on Thursday afternoon. 

The judiciary committee has nine bills on its calendar, and the fentanyl bill is last on its list.

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.

What to expect?

Expected are amendments from those who seek a felony charge for any possession of fentanyl, no matter the amount and others who favor removing a House amendment that lowered the felony threshold from 4 grams to 1 gram. Amendments requested by witnesses in Tuesday’s hearing also include removing language that a person knew or should have known there’s fentanyl in the drug. District attorneys testified that provision would make it virtually impossible to prosecute those who distribute fentanyl, whether dealers, addicts or casual users. They also asked the committee to remove language that repeals the felony provision after three years. 

Who to watch in the committee?

Both judiciary chair Sen. Pete Lee, D-Colorado Springs, and vice-chair Sen. Julie Gonzales, D-Denver, do not support “re-felonization” of fentanyl, while the committee’s two Republicans, Sens. John Cooke, R-Greeley and Bob Gardner, R-Colorado Springs, favor zero tolerance.

Expect Sen. Robert Rodriquez, D-Denver, to be the swing vote on some of the amendments. 

Next stop

Once adopted by the committee – the bill expected to pass – it will head to the Senate Appropriations Committee and from there to the Senate floor. Should any amendments be adopted, the bill would have to go back to the House to consider the changes, which will be the next big battle, no matter which amendments the senators approved today.