The fentanyl epidemic, which produced intense fights two years ago over how to confront the soaring deaths from the synthetic opioid, has returned to the Colorado state Capitol this year.

In the past several weeks, lawmakers have already turned down one bill that would make possession of small amounts of fentanyl a felony. And efforts are afoot to put the subject on the ballot.

Used legitimately as a medical anesthetic, fentanyl is a synthetic opioid that has become a dominant player in the illicit market and is increasingly being mixed into other substances. It’s cheaper and produces a more potent, more fleeting “high,” according to experts. But its potency in small quantities makes it unlike any other substance that preceded it.

The battles over fentanyl and how to penalize those who carry it have pitted “harm reduction” advocates, who argue that the solution is not incarceration, against the families of individuals who died of overdoses, law enforcement, and district attorneys, who believe tougher punishment will serve as a deterrent.

Against the backdrop of this years-long policy battle, six people died in Commerce City after unknowingly ingesting fentanyl in February 2022. And the drug continues to kill Colorado residents to this day.

A ‘bargaining chip’

This year, the push is to make possession of any amount of fentanyl a felony. Sponsors hope that would lead to getting drug dealers and suppliers off the streets.

But the hearing on Senate Bill 44 was just as much about the effectiveness, or lack thereof, of the legislation from 2022, as it was about how to proceed.

The bill proposed by Sen. Byron Pelton, R-Sterling, intends to provide an “out” for those who possess fentanyl: Tell law enforcement where it came from and the bill offers a way to knock down the felony charge to a misdemeanor.

Pelton said he has worried about drug use in northeastern Colorado going back to his days as a Logan County commissioner.

SB 44 sought to make manufacturing, distributing or selling any amount of fentanyl and related illegal synthetic opioids a Level 1 drug felony, carrying prison terms ranging between eight and 32 years and up to $1 million in fines.

That’s also without a weight determinant, which has been a major part of how lawmakers have approach the fentanyl crisis over the past several years.

Possession of fentanyl is currently a Level 4 drug felony, but under SB 44, that could be mitigated by the defendant agreeing to successful completion of a community-based sentence to probation or to a community corrections program. A carve-out also exists for defendants who made a “reasonable mistake of fact” and didn’t know what they possessed had fentanyl in it.

During the bill’s Feb. 10 hearing in the Senate Judiciary Committee, Pelton told the committee that fentanyl trafficking is a $65 billion activity nationwide, and in Denver, two-thirds of drug overdoses are tied to this drug.

The epidemic is hurting the state and it’s time the legislature take it seriously, he added.

The bill’s intent, he said, is to target the drug dealers and get them off the streets.

“If we can get the low-level drug dealers, we can do our best to get the high-level drug dealers,” using the penalties as a “bargaining chip,” he said.

‘No evidence criminal penalties decreased overdose deaths’

On one side of the debate are advocates who insist that more punishment won’t solve the crisis. 

Dr. Josh Barocas, an associate professor of medicine at the CU Anschutz School of Medicine, told lawmakers he understands the pressure they face to act.

At the time the 2022 legislation was introduced, supporters said it was necessary to save lives, prevent overdose deaths and encourage the use of opioid treatments.

But the findings of a study tied to bill, in which Barocas was one of the investigators, did not support that hypothesis, the professor said. 

Overdose deaths saw no decrease at the population level compared to what was expected without the new law, he told the committee, and there was no improvement in the initiation of buprenorphine, which is used to treat opioid addiction.

There was “absolutely no evidence for our state that criminal penalties decreased overdose deaths,” he said.

Lisa Raville, executive director of the Harm Reduction Action Center, told the committee that it’s no secret “we’re in the worst overdose crisis we’ve ever been in with the most unregulated drug supply we’ve ever seen.” But the state, she insisted. will never incarcerate or treat its way out of an unregulated drug supply.

“We just simply won’t,” she said. “I hesitate to even tell this legislature that since the 2022 fentanyl criminalization bill was passed, we now have seen four new drugs in our local Denver Fentanyl supply. I hesitate to tell you, is you’ll probably wanna try to criminalize those drugs next — because it’s called the Iron Law prohibition. The harder the enforcement, the more potent the drug, lather, rinse, repeat.”

Raville said the state should not double down on the worst ideas of the “drug war” — incarceration and criminalization.

The result, she said, is that people are afraid to call 911 for help in an overdose situation for fear of going to jail.

‘No more leniency’ 

On the other side of that debate are people like Andrea Thomas of Grand Junction, who leads Voices of Awareness. Thomas said her 22-year-old daughter was a drug-free young woman just 60 days ago.

Today, she is lost in addiction, suffering from severe psychosis, Thomas said. 

Thomas said the dealer continues to distribute illicit drugs with very little accountability.

“How does the state allow a man like this to continue walking free, destroying lives and tearing families apart?” she said. 

“When human life is at stake, we must take swift and strong action. No more leniency for these distributors,” she said. “Colorado’s current approach has failed by tying the hands of law enforcement. We must establish real consequences for those manufacturing and distributing fentanyl. We must eliminate sentencing loopholes that allow repeat offenders to continue this destruction.”

The state, she said, must intervene before possession escalates into trafficking.

Travis Sides, the district attorney for the 13th Judicial District in northeastern Colorado, told the committee lower-level users are the people who are moving small amounts of drugs. They need treatment and support, he said. 

“But at the same time, I listened to much of that testimony of the 2022 bill, and I heard unfortunately, many stories, like the one we just heard, of parents with just heartbreaking stories over child loss to poison what we call fentanyl.”

Sides said the “small fish,” the people possessing or even selling small amounts, have no incentive to cooperate with law enforcement.

“Why would they cooperate with law enforcement and tell them who the big fish is or provide other information?” he asked.

The proposal, he said, tells the “small fish” that, if they don’t cooperate with law enforcement, they could be looking at serious consequences.

“We want them to cooperate so that we can catch those big fish,” he said, adding it’s not an attempt to put the “small fish” into prison.

Felony charges helped convict turn life around 

The committee also heard from former drug dealer Marshall Weaver, now of Loveland, who got clean after 13 felony arrests for distribution and 27 years of addiction to heroin and meth.

Weaver had testified in favor of House Bill 1326 three years ago, just a year after completing treatment.

When he was dealing, it didn’t matter if it was one pill or a hundred pills.

“I didn’t care about people’s lives that I was endangering. I didn’t care about the devastation that it was causing. I didn’t care that a single mother couldn’t pay her rent or her food. I just cared about my money,” he said. 

Changing the penalties around manufacturing, selling and possession with an intent to distribute would be a start to getting a handle on the problem, Weaver said.

He attributed his turnaround to treatment and to the felony charges he accrued, one after another.

After the final felony charge, he got the opportunity to turn his life around, he said. C

lean and sober for four years now, “my life is together because of the criminal justice system,” he added.

Despite the support of one Democrat, Sen. Dylan Roberts of Frisco, a former assistant district attorney, the bill failed in committee by a 3-4 vote. This is the second consecutive year that a proposed law to increase penalties for fentanyl possession has failed to make it to full House or Senate for a floor debate.

Will the people ultimately decide?

The defeat of Senate Bill 44 might not be the end of the discussion.

Four days after the Senate Judiciary Committee killed SB 44, Michael Fields of Advance Colorado filed two ballot measures on the fentanyl issue.

Similar to Senate Bill 44, Initiatives 30 and 31, which seek statutory changes, will take their first step with a review and comment hearing on Feb. 28.

Fields told Colorado Politics the intent is to come down on people selling fentanyl “harder” than is in current law. It would mandate treatment for people with the lowest possession levels.

“The biggest problem is on the selling side — it should be a Class 1 felony if you’re selling fentanyl,” he said.

The ballot measures don’t require those arrested for possession to disclose where they got the drug.

Like Pelton’s bill, the ballot measures say if the possession is under a gram, it’s a misdemeanor if the defendant agrees to treatment; otherwise, it’s a felony.

Stiffer fentanyl penalties have the backing of law enforcement.

Douglas County Sheriff Darren Weekly and Arapahoe County Sheriff Tyler Brown were critical of the committee for rejecting stiffer penalties for possession.

Weekly said he has started working with Advance Colorado to draft ballot measures, such as the proposed 2026 questions aimed at increasing penalties for possession.

“It is time to move on from a lack of progress by our legislature,” Weekly said. “If there are no consequences for breaking the law, behaviors are not going to change. These days, you can go to a party and buy a fentanyl pill for two or three bucks, not even knowing how dangerous these pills are.”

Brown said it’s frustrating that law enforcement has been working with the legislature for more than four years without making real progress.

He said a “carrot” needs to be offered to help curtail the increased use of fentanyl in society. This means those caught in possession of the drug should be charged with a felony but still have a path forward to get back on track and be productive members of the community, he said.

“We need to hold people accountable for a dangerous drug that is literally killing hundreds of thousands of people,” he said. “We can have processes in place for people to get community assistance. It doesn’t have to be a forever felony. Let them take the appropriate steps and get it off their record.”

Fields has seen success in getting measures on the ballot after Colorado’s Democratic-led legislature has rejected proposals.

In the 2024 election, his group backed Proposition 130, which funded public safety, and Amendment 80, which would have made school choice part of the state constitution.

The first won voter approval; the second, which critics alleged was an attempt to allow taxpayer-funded vouchers for private education but which supporters described as simply codifying what’s already being practiced, failed.

His group also persuaded voters to pass Proposition 130, which increases the time served requirement for individuals convicted of certain violent crimes to be eligible for parole.

‘There isn’t a clear picture’

In 2022, the Colorado General Assembly passed a bill creating programs for fentanyl use prevention, education, and treatment, as well as updating fentanyl-related offenses.

Under House Bill 22-1326, unlawful distribution, manufacturing, dispensing, or sale of any compound with fentanyl or carfentinil would earn a Level 1 drug felony if the substance weighed more than 50 grams, with a heightened penalty if the distribution resulted in death.

A Level 2 drug felony charge would be assessed if the substance weighed over 4 grams but less than 50, and a level 3 drug felony would be charged for weights under 4 grams.

The bill set aside tens of millions of dollars for substance use treatment, and required a study to measure its success between 2022 and 2024.

The study, which came out Jan. 17 and where investigators focused on 30 months of data, couldn’t prove one way or the other that the bill worked.

The legislation did not ask the investigators to look at whether the millions of dollars spent on opioid antagonists, education and other treatment had any discernible effect on those who have fallen into drug abuse tied to fentanyl.

Conducted by the Colorado Evaluation and Action Lab at the University of Denver, the study — “Measuring the Health Impacts of Felonizing Fentanyl Possession” — looked into the health effects of making fentanyl possession a felony and the criminal penalties of synthetic opiates.

That included estimating health impacts on people with and without substance use disorders because of the change in criminal penalties on fentanyl; documenting patterns of felony charges, particularly for fentanyl; and, documenting the “intersection of justice” for people with substance use disorders.

HB 1326 didn’t make a difference, according to the authors.

“We found the trends in drug overdose death rates in Colorado” did not change after HB 1326, the report’s executive summary said.

There was, however, a higher rate of fatal overdoses for non-Hispanic Black Coloradans for a brief period after the law’s passage, “though it is difficult to say if this was related to the law,” the report said.

There was no clear answer on trends before and after the legislation about medications used to treat opioid use. The report said there was a decrease in methadone retention, which is used to measure whether patients are staying in treatment.

A qualitative analysis showed people viewed fentanyl possession criminal penalties to be “misguided, and that expanding services including medications, other treatment services, and diversion options would be more likely to reduce overdose rates,” the study said. 

Barocas, one of the study’s investigators, told Colorado Politics, “There isn’t a clear picture.”

The study also looked at trends in overdose deaths and in medications for overdose use disorder, specifically buprenorphine. He said the question was what the world looked like before the 2022 law.

The data showed the law did not increase or decrease overdose deaths, based on previous trends, except for about four months in 2022, beginning in July, within the non-Hispanic Black community, which saw overdose deaths beyond expected.

“We can’t control for everything,” he said, but that means the overdoses could not be 100% attributed to the law. “We can’t prove exactly causality, but we can prove an association. It wasn’t a coincidence.” 

He noted that no other federal laws or provisions of the bill took effect in July 2022.

Barocas noted a claim by the governor’s office back then that the bill would have the effect of decreasing overdose deaths.

Regarding the qualitative information, Barocas said the law did not improve the situation.

“There were effectively three big findings from the qualitative work,” with the most significant finding coming from affected people, health care workers, policymakers and lawmakers and, significantly, law enforcement.

Across the board, including from law enforcement, there was consensus that increasing criminal penalties for possession was “misguided,” he said, adding those who possess small amounts are not dealers.

“There was a sense that this is not where we should be spending time or money because it’s not making things better,” Barocas said.

There was also a consensus that, “if you are going to throw people in jail, then 100%, you have to make sure treatment is available,” he said.

A $16 billion cost — in just one year

A second study came out last summer from the Common Sense Institute, “Colorado’s Fentanyl Problem and the Economic Costs.”

The report said the total cost of fentanyl-related overdose deaths in Colorado is estimated to be $16 billion in 2023, more than 10 times the cost of fentanyl overdoses in 2017.

In 2023, the Drug Enforcement Administration’s Rocky Mountain division seized 425.6 kilograms of fentanyl, a record. About 44% of sampled tablets seized in 2021 had at least two milligrams of fentanyl.

Opioid-based drug overdose deaths are now 72.3% of all overdose deaths, up 30% from 2020. That’s about 1,200 deaths from fentanyl alone, with 59% of that coming from “illegally manufactured fentanyl.”

The report said three Coloradans die every day from an overdose of synthetic opioids, including fentanyl. Between 2018 and 2023, the percentage of deaths from synthetic opioids skyrocketed some 833%, the report said.

The report cited data from the Colorado Department of Public Health and Environment, which said there were 920 fentanyl-related deaths in 2022. The Centers for Disease Control and Prevention showed 982 deaths from illegal fentanyl that same year.

Illegally manufactured fentanyl accounts for 59% of all drug overdose deaths in 2023, a 17-percentage point increase from 2020, the CSI report said.

Synthetic opioids also include methadone, tramadol, an antidepressant, and buprenorphine, which is used to treat opioid use.