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Bags of fentanyl pills were confiscated in the DEA's sting which involved a partnership of several law enforcement operations across the Front Range.

A draft bill that seeks to address Colorado's fentanyl crisis received a chorus of praise from state officials Wednesday, with the governor saying he's pleased to see increased criminal penalties and a top lawmaker noting its comprehensive approach to confronting the deadly drug.    

But others aren't buying the proposal, with some worrying the increase in penalties would inhibit calls for help, resulting in more overdoses and deaths, and others arguing the draft bill would offer immunity to those who don't deserve it. 

The fentanyl legislation comes amid heightened attention to the drug's increasingly deadly impact in Colorado. Fatal overdoses involving the drug have skyrocketed since 2015, the product of shifting economics and priorities within the illicit drug trade and accelerated by the pandemic. More than 800 Coloradans died after ingesting fentanyl in 2021, according to state data. That represents a roughly 50% increase from 2020 and more than triple the number of deaths from 2019.

In an interview with Colorado Politics, Gov. Jared Polis pointed to the increased availability of testing strips and kits to law enforcement under the proposal. That, he said, means rather than tracing a trail of dead bodies to hold someone responsible for distribution, "you'll be able to detect earlier in the process," and law enforcement will be able to investigate and find patterns.

This will be a tool in the field – not in the lab – that will allow faster tracking back to the drug's source, said Polis, who called for increasing the penalty for peddling fentanyl during his State of the State address before the Colorado General Assembly in January. 

Speaker of the House Alec Garnett, D-Denver, touted the bill's comprehensive approach to addressing fentanyl, both an answer to law enforcement's plea for tools to put dealers behind bars and to advocates' call for more investment in harm reduction measures side to save lives.

"This is about saving lives," Garnett said.

When it comes to possession with intent to distribute, for example, the "cut points" in current law don't work, Garnett said.

That's a term referring to the amount of fentanyl in a compound mixture. Under current law, 0 to 14 grams of fentanyl carries a drug felony 3 charge and applies to a low-level dealer. That rises to a drug felony 2 charge for 14 grams to 225 grams.

Changing those "cut points" is a response to law enforcement and district attorneys, who said they need better tools to prosecute dealers because fentanyl is deadlier, Garnett said.

Mesa County District Attorney Dan Rubinstein echoed the sentiment. He said when some of the state's drug laws were restructured in 2013, law enforcers found that most low-level dealers handled less than a half-ounce, mid-level dealers carried a half-ounce to a half-pound, and high-level dealers worked with amounts above that.

But for fentanyl, he said, those numbers don't work.

The proposed legislation re-envisions those figures. Rubinstein said zero to 4 grams, or roughly 40 pills, would be a drug felony 3 charge; 40 to 500 pills is a drug felony 2; and, anything above that calls for the most serious charge, a drug felony 1.

"It's important to district attorneys to make sure we were converting fentanyl into numbers," he said, adding the draft follows the previous structure but also takes into account how fentanyl is different.

Those changes would apply to substances in which fentanyl is found, not just the pure weight of fentanyl. The drug is increasingly present in other drugs, from heroin and cocaine to fake Xanax and methamphetamine. As the draft is written, someone who possesses 3 grams of cocaine that has any detectable amount of fentanyl in it would be hit with a drug felony 3 charge.

Rob Valuck, who leads the Colorado Consortium for Prescription Drug Abuse Prevention, said fentanyl's presence in other substances is "maybe the most difficult part" of responding to its presence. He said many mid- or low-level sellers may have no idea what's in the substance they're peddling. He and others warn that those low-level dealers often sell as a means to support their own addiction. 

Denver Police Chief Paul Pazen is critical of the draft proposal. Though he commended lawmakers for "attempting" to fix the problem, he said the law governing simple possession needs to be changed and that he doesn't know what could justify allowing possession of up to 4 grams of fentanyl to remain a misdemeanor.

"There is no safe amount of fentanyl on our streets," he said in an interview Wednesday afternoon, noting that, on average, more than one person dies from a drug overdose in Denver every day. "And we are hopeful that this possession side can be addressed, just based on the level of harm that fentanyl has created."

Garnett noted how the bill handles fentanyl distribution that results in death.

Under the proposal, that's a drug felony 1 charge, which will allow district attorneys an important tool to hold a dealer accountable that does not exist right now, Garnett said.

Rubinstein praised how the bill deals with that issue.

"With the lethality of fentanyl, we wanted to make sure we had the tools to prosecute distribution resulting in death," he said.

A federal charge is an option, but the best district attorneys could currently pursue is a reckless manslaughter charge, which he said is difficult to prove.

The proposal handles it with a tiered approach, which includes a distribution resulting in death charge all the way down to a Good Samaritan exception, in which a dealer finds someone overdosing, calls 911 and cooperates with law enforcement. That would result in a lower level felony distribution charge but not with the enhancement of distribution resulting in death.

"These are great tools for us," Rubinstein said, thanking Garnett* for coming up with an approach that he argued makes sense for a drug with implications unseen before.

Garnett also noted that someone caught importing or using a pill press will also face a drug felony 1 charge. 

The bill has already generated confusion, however, on how the so-called Good Samaritan provision works for people who aren't dealers.

Rubinstein said that applies to a fellow user, not a dealer, and it has to be less than 4 grams. 

Garnett said this section of the bill is about sharing drugs, not dealing, such as when someone brings fentanyl to a party. If the person who brought the drugs finds someone overdosing, that individual would have to call 911, remain on scene, cooperate with law enforcement and first responders, and, under that scenario, would not be charged for someone's death but would still face distribution charges.

The proposal also tackles one of the common complaints about the 2019 law – that possession of less than 4 grams of fentanyl is a misdemeanor. For those who deal fentanyl, any amount gets them a criminal charge, Garnett said.

"No one will be able to carry around any amount and sell to anyone and think they will get off scot-free," Garnett explained. 

On the harm reduction side, Garnett said creating a bulk purchase program for testing strips will allow anyone to test to make sure fentanyl isn't in a drug. Those test strips would be available to not just law enforcers in the field but also from colleges and religious or community organizations. The bill also promotes a state education program that would explain to the public, for example, that no amount of fentanyl is safe.

Valuck said he thinks the bill attempts to strike a broad approach to a complicated problem. He said he is "glad for any improvement in jail-based treatment," referring to the bill's changes to what treatment options are available in correctional settings. But he said they were long overdue and needed further expansion.

The proposal is so far receiving support from both sides of the political aisle.  

"This is not a partisan issue," said Rep. Mike Lynch, R-Wellington, adding it isn't partisan when people's lives are at stake.

Given the lethality of fentanyl, Lynch said he believes this approach will be effective.

If not, "we'll come back and adapt," Lynch said.

Garnett commended Lynch, saying the latter brought up how the "cut points" don't work for law enforcement and it was Lynch's leadership that got lawmakers to a point where they figured out the best way forward.

"Felonizing" drug abuse is not handled well in the criminal code, Garnett said, adding he's heard from law enforcers who want the felony charges to force people into treatment.

"We've created a mandatory treatment for the misdemeanor, to get that evaluation," Garnett said, adding if a person isn't an addict, the bill offers more education to understand fentanyl's risks. For those who are addicted, he said, steps are available to get the person the treatment they need. 

"We've answered the call from law enforcement," Garnett said. "This does a good job of proving tools on the ground and not continuing the practice of punching someone who suffers from a disease and putting them in a place" where they won't get help.

Support for the legislation has begun to line up. 

In a statement, Attorney General Phil Weiser said he is grateful to the bill's sponsors for their work and called the proposal "a much-needed stride forward to remove this deadly poison from our streets." Weiser previously came out in support of strengthening criminal penalties for possessing fentanyl and rolling back that part of the 2019 legislative change. 

“By strengthening penalties for those who knowingly or intentionally deal fentanyl and fentanyl-laced substances that kill people, and offering needed funds for addiction treatment and appropriate harm reduction, this bill gives law enforcement valuable tools it needs to remove dangerous fentanyl and high-level drug dealers from our communities," he wrote. "And rather than criminalizing those struggling with addiction, it provides support and resources for those who need help."

The proposal will rely on about $29 million in American Rescue Plan Act money, according to sponsors. How much the state will contribute from its coffers is still a work in progress. 

Not everyone is singing the bill's praises.

Lisa Raville, who runs the Harm Reduction Action Center in Denver, said she is "extremely concerned" about the draft legislation. She said she doesn't support mandatory treatment, and she fears overdoses would rise because users may not call for help for an overdosing friend out of fear they'd be arrested or investigated under the proposed penalties.
 
As for the harm reduction elements in the draft bill, Raville said supports increasing medication-assisted treatment in jails. She said the provisions around providing treatment and service in incarceration settings fit with other recent policy pushes statewide. 
 
Still, she said, the support services in the draft legislation don't "even out the criminalization piece." She said she worries about the state's Good Samaritan law's application in the context of what the bill proposes. Raville has repeatedly warned that the line between users and low-level sellers is blurry.
 
Harm reduction experts and advocates previously signaled their resistance to lawmakers changing some criminal penalties in response to fentanyl.
 
In a letter released last week, more than 60 organizations called on the legislature to prioritize addressing the crisis as a public health emergency and to emphasize education, prevention and support for users and the organizations that work with them.

Valuck, of the prescription drug abuse consortium, said the state still has a long way to go to properly address the crisis. He said a significant need for treatment options remains – he estimated that two-thirds of Coloradans who need substance abuse treatment can't get it – and medications to trust opioid-use disorder should be universally available.

Meanwhile, El Paso County District Attorney Michael Allen told Colorado Politics also said distribution resulting in death should not be based on distributed weight, arguing that devalues victims.

A high volume is a drug felony one charge with mandatory 12 to 32 years in prison, but, he said, if it's less than 4 grams and someone dies, it's not a mandatory prison sentence but rather eight to 32 years with parole a possibility under the proposal. 

"That makes zero sense to me," Allen said. 

His biggest complaint, however, deals with the bill's "Good Samaritan" provision.

Under that provision, if a drug dealer distributes fentanyl and someone overdoses, so long as the dealer calls 911 and cooperates, he or she wouldn't be charged at all, Allen said. He noted that CRS 18-1-111 says people who use or possess drugs and overdose can't be prosecuted for seeking help as long as they call it in and cooperate. The bill modifies that section to introduce distribution, making them immune from prosecution as long as they cooperate, according to Allen. 

In the Commerce City case last month, in which five people died allegedly from fentanyl overdoses, Allen said if the dealer had stayed there and called for help, that person would have been immune from prosecution. 

The proponents and backers dispute that interpretation. 

Christie Donner, the executive director of the Colorado Criminal Justice Reform Coalition, is holding off on commenting on the bill until she sees its final form. Carolyn Taylor, spokeswoman for Denver District Attorney Beth McCann, deferred comment to the Colorado District Attorneys' Council. Elizabeth Schrack, spokeswoman for the council, said the organization is also awaiting the bill's introduction. 

Editor's note: An earlier edition of this story quoted District Attorney Dan Rubinstein as thanking the Criminal Defense Bar for its work on the draft bill. However, the bar said it had no involvement in crafting the legislation.

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