With just hours to spare in its 2022 lawmaking term, the Colorado legislature on May 11 sent House Bill 1326, the Fentanyl Accountability and Prevention Act, to Gov. Jared Polis to be signed into law.
The contentious legislation, which was still being amended up until its passage, is lawmakers’ response to rising fentanyl overdose deaths in the state. More than 900 Coloradans died from a fentanyl overdose last year, according to state health department data, including four children under the age 1, and 35 people between the ages of 10 and 18.
In 2020, 540 people died from a fentanyl overdose in Colorado.
The bill would increase the penalties for possessing or distributing fentanyl and would pump tens of millions of dollars into efforts to prevent overdose deaths, as well as drug treatment and education campaigns.
Polis has said he will sign the bill into law.
The Colorado Sun pored over the final version of measure to pull out the information you need to know:
What is fentanyl and what’s the background of this bill?
Fentanyl is a synthetic opioid that’s 80 to 100 times more potent than morphine. It can be lethal in doses of about 2 or 3 milligrams.
The drug was developed to help manage pain for cancer patients but has increasingly been illegally mixed with heroin and other drugs because of its potency and how cheap it is to produce. In fact, law enforcement says fentanyl has become ubiquitous and that it’s mixed into almost all street drugs now.
Some drug users have said they consumed fentanyl unknowingly, thinking they were taking another substance. Authorities believe five people who died in a mass fentanyl overdose in Commerce City earlier this year thought they were consuming cocaine.
A number of Colorado teens and young adults have died of fentanyl overdoses in recent years after consuming what they thought were prescription painkillers.
House Bill 1326 comes after lawmakers passed a bill in 2019 that was signed into law by Polis that made it a misdemeanor to possess up to 4 grams of most drugs, including fentanyl, for personal use. Law enforcement and Republicans have blasted the 2019 law, saying it is responsible for Colorado’s surging fentanyl overdose deaths, a claim rejected by harm reduction advocates.
How would the bill change criminal penalties for possessing fentanyl?
The bill would make possessing between 1 gram and 4 grams of a fentanyl compound for personal use a Level 4 drug felony punishable by up to 180 days in jail and up to two years of probation. If someone is convicted of the offense a third or subsequent time, the sentence would go up to 364 days in jail.
A fentanyl compound means a drug mixture with any amount of fentanyl in it. For instance, 4 grams of heroin combined with a few milligrams of fentanyl would be considered a fentanyl compound.
Since fentanyl is ubiquitous in street drugs, experts say it’s likely that people arrested for possessing more than 1 gram of any drug could be charged with a felony.
Those convicted of the Level 4 drug felony can have their convictions dropped to misdemeanors if they go through treatment. And they can have their criminal record sealed a few years after completing their sentence or completing probation.
Possessing 1 gram or less of fentanyl or a fentanyl compound would remain a Level 1 drug misdemeanor. A person convicted for a fourth or subsequent time of possessing 1 gram or less of fentanyl or a fentanyl compound could be charged with a Level 4 drug felony punishable by between 6 months and two years in prison.
The bill also would try to crack down on fentanyl dealers by raising the penalties for possessing the drug with an intent to distribute it. Here are the details:
• Possessing between 4 grams and 50 grams of fentanyl or a fentanyl compound with an intent to distribute it would become a Level 2 drug felony punishable by a prison term of 4 to 16 years.
• Possessing more than 50 grams of a fentanyl compound with an intent to distribute it a Level 1 drug felony punishable by a prison term of up to 32 years.
• Other offenses become a Level 1 drug felony, punishable by a prison term of up to 32 years, if it leads to someone’s death, if the drugs originated from outside of Colorado, or if the person also possessed a pill press or other manufacturing equipment
Would a person have to know they were possessing fentanyl to be charged with a felony?
This question is important because fentanyl is often mixed with other drugs.
The answer is no, but they would have an opportunity to argue before a jury that they did not know they were in possession of fentanyl. If the jury sides with the defendant, the defendant’s charge would be reduced from a felony to a misdemeanor.
Lawmakers likened the unique legal structure of the bill, a change that was made on the night of May 11, to Colorado’s crime-of-passion law, which allows someone charged with murder to argue the killing was unplanned in the hopes of prompting the jury to lower their sentence.
An earlier version of the fentanyl bill would have required people to have known that they were in possession of fentanyl or a fentanyl compound before they could be charged with a felony for having more than 1 gram of the drug for personal use. Law enforcement and prosecutors were wary of that policy, saying it would make it very difficult to prosecute cases.
Both law enforcement — who wanted to remove any option for people to prove they didn’t know they were in possession of fentanyl — and criminal justice activists were unhappy with where this section of the bill ended up. It was written this way to ensure its passage.
Tom Raynes, executive director of the Colorado District Attorneys’ Council, called the finalized version of the provision a “challenging standard.”
“We will adapt to the decision made by the legislature as they are the ones who make and are responsible for legislation and policy,” he said. “Our job is to enforce their decisions, and we will.”
What about the treatment side?
Anyone convicted of a fentanyl-related offense would have to undergo a substance use assessment and, if appropriate, treatment. They would also have to take a fentanyl education program developed by the state.
The law also would require that some people jailed on fentanyl-related charges be released with naloxone, an opioid reversal drug, or a prescription for other medication to help with opioid-use disorders. It would also give jails money to help provide medication-assisted treatment to their inmates.
Where is the money going?
House Bill 1326 would also allocate about $40 million next year toward trying to prevent fentanyl overdose deaths and toward responding to the opioid epidemic. The spending would include:
• $6 million would be set aside next fiscal year, which starts July 1, for a harm-reduction grant program. Nonprofits, public health or tribal agencies, law enforcement, and various health care organizations could apply for grants, and the funding could be used for training about preventing overdoses and to helping divert people from the criminal justice system.
• $19.7 million would be used to make a bulk purchase of naloxone. Under the bill, naloxone and other drugs to counter an opioid overdose could be dispensed through a variety of organizations, including libraries, colleges and universities, jails, probation departments and public health agencies.
• $600,000 would be set aside to purchase tests to detect synthetic opiates. The idea is to help people determine if their drugs contain fentanyl and to prevent them from unknowingly consuming the opioid.
• $10 million would be earmarked for treatment centers where people could stay to detox or stabilize if they’re in crisis.
• The bill would create a grant program to help law enforcement agencies investigate deaths or serious injuries caused by synthetic opiates and for disrupting drug distribution. The bill doesn’t allocate money to the program; it’s subject to available money. Families told lawmakers that the overdose deaths of their loved ones had not been thoroughly investigated by law enforcement. The bill would require law enforcement agencies that respond to a suspected overdose to tell the district attorney’s office if an arrest was made. Those district attorney’s offices then must report when they don’t prosecute someone arrested in connection with a suspected overdose involving fentanyl.
• $3 million would be set aside to help county jails meet a variety of new requirements under the bill, including providing medication-assisted treatment and providing them with a referral to a treatment provider upon their release.
Is there anything else I should know about the bill?
It would require a variety of studies and data-collection programs. Those include:
• An independent study about the bill’s implementation
• A study of how the internet is used for trafficking fentanyl and other illicit drugs
• An independent study of the health effects of the bill’s criminal penalties
Additionally, the bill would require that emergency medical providers, coroners and law enforcement officials participate in a state program mapping overdose deaths. The measure would also task a new Colorado Overdose Prevention Review Committee with reviewing drug-related overdoses and making policy recommendations to lawmakers.
And the Department of Public Health and Environment would have to develop a statewide prevention and education campaign around fentanyl. The campaign could include TV, radio or digital advertisements, as well as a website with resources about fentanyl, criminal penalties tied to possession of the drug and the immunity granted to those who report an overdose.
This story is from The Colorado Sun, a journalist-owned news outlet based in Denver and covering the state. For more, and to support The Colorado Sun, visit coloradosun.com. The Colorado Sun is a partner in the Colorado News Conservancy, owner of Colorado Community Media.