Arguing the status quo has failed to curb overdose deaths in Colorado, a Republican legislator is pushing for legislation to make it a felony for possessing any amount of fentanyl.

In response the overdose crisis, state policymakers in 2022 approved legislation to heighten the felony charges for possession of 1 to 4 grams of any substance containing fentanyl. The criminal penalty increase above 4 grams, an under 1 gram, possession is a misdemeanor.

In addition, the law allows defendants charged with the new felony to argue to a judge or jury that they didn’t know they possessed fentanyl, and if a “finder of fact” determines the defendant made a reasonable mistake of fact, the offense becomes a Level 1 drug misdemeanor.

A bill from Rep. Mike Lynch eliminates that provision and, effective July 1, says that ay possession of any material, compound, mixture, or preparation that contains “any quantity” of fentanyl, carfentanil, benzimidazole opiate, or an analog, is a Level 4 drug felony.

Lynch said what the legislature passed in 2022 was “not enough.”

“Deaths aren’t dramatically going down,” he told Colorado Politics, adding that overdoses have become among the top killers of residents.  

“If we’re trying to deter crime, let’s punish people,” he said. 

Lynch said he had hoped that Attorney General Phil Weiser would support the legislation but learned that the office is taking a wait-and-see approach. 

Lynch shared a message from Weiser’s office, which said that, “after speaking with the DAs, our opioid team, and various partners in this space, it sounds like while the policy change may still be valuable, it is too soon following the passage of the comprehensive fentanyl bill to justify a change like this.”

“More data and overall impacts are still being evaluated. We would need to hear from groups that the bill is not working or that the needed tools are truly not there to warrant opening this statute up so soon,” Weiser’s office said. 

In a statement, Lynch said, “We have a crisis that is killing our citizens and our leaders are not addressing the state’s number one cause of death.”

Broadly speaking, policymakers and advocates have offered a divergent approach to combatting overdoses. For many in the law enforcement community and lawmakers, such as Lynch, the 2022 law did not go far enough in punishing possession of fentanyl.

Meanwhile, advocates of “harm reduction” strategies decried the law as misplaced in its attempt to address a drug that has killed thousands of Coloradans. Their frustration arose out of law’s inclusion of penalties for low levels of drug possession. They are likely to argue against Lynch’s House Bill 1306.

According to the Centers for Disease Control, fentanyl is now the leading cause of death among adults between 18 and 45 in the U.S. In 2018, Colorado had 102 fentanyl-related deaths, according to the U.S. Drug Enforcement Administration’s Rocky Mountain Field Division. However, by 2022, that number jumped to 910 deaths for people between the ages of 18 and 45 in Colorado.

Fentanyl is a cheap, synthetic opioid that is 50 times stronger than heroin and 100 times stronger than morphine. Its pure form is increasingly smuggled into the United States from Mexico, often in the form of pills that resemble legitimate opioid tablets, like those for oxycodone. But fentanyl has been increasingly mixed into other drugs, from cocaine and meth to faux Xanax and heroin. Experts say virtually every street drug now contains at least some fentanyl.

Cheap, easy to produce and doesn’t rely on a season-dependent cultivation cycle, like heroin, illicit fentanyl can be made in large batches, year round. As a result, it’s replaced the heroin supply in much of the country, forcing people with opioid addictions to use fentanyl instead.

That, coupled with its presence in other drugs like meth, have fueled a spiraling overdose crisis in Colorado and across the country. 

Last year, a Centennial mom joined a national lawsuit against the social media platform, Snapchat, claiming her teenage daughter, a Littleton High School senior, used the app to purchase drugs, which were laced with fentanyl. She died at age 18 of a fentanyl overdose.

In 2023, 522 people died from drug overdoses in Denver alone, the most since tracking began in 1923, according to Denver’s Office of the Medical Examiner. And though final numbers for overdose deaths statewide won’t be available until this summer, the Colorado Department of Health and Environment recorded 1,454 total drug overdose deaths among Colorado residents from 2023, thus far.

Seizures of fentanyl throughout the state have also increased. The Rocky Mountain Field Division seized 565,200 fentanyl pills throughout Colorado in 2021 and 1.9 million fentanyl pills in 2022. The Colorado offices are on pace to seize a record three million fentanyl pills in 2023.

“Laws are created to deter behavior,” Lynch said. “When did we lose that concept? We create laws to deter crime and we need to do that with fentanyl. What does it say if we do nothing and allow little to no punishment to be the crime for possession of lethal poison?”

Agreeing with Lynch, Douglas County Sheriff Darren Weekly said the potential for suspects to go to jail could stop someone from trying the drug at all.

“There needs to be significant consequences for possession and for dealing,” Weekly said. “We are going to stay in this spiral without significant consequences for people. Incarceration may minimize the increase in users we are seeing.”

Saying he is sensitive to those battling addiction, Weekly said help is available out there but insisted that possession of even a small amount of fentanyl is potentially deadly, and the state legislature should enact laws that reflect the seriousness of the crisis.

Lynch, who has been trying to pass the same legislation in the past few years, said by not discouraging use through stiffer penalties, deaths and addiction issues surrounding fentanyl will continue to increase.

HB1306 is expected to be discussed by the House Judiciary Committee on March 6.