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Used and exchanged needles are collected in a bucket at the Harm Reduction Action Center, a needle-exchange program across from the state Capitol. (Marvin Anani, Special to The Colorado Sun)
A photo comparison of the amount of each opioid, heroin, carfentanil and fentanyl, that would result in a fatal overdose. (Provided by the DEA)

Colorado’s top federal prosecutor is sounding the alarm over a new state law that potentially makes possessing thousands of fatal doses of synthetic opioids a misdemeanor, saying it sends the wrong message as law enforcement and health officials are warning the public about the substances’ danger. 

State lawmakers earlier this year passed a bill that made possession of 4 grams or less of most drugs a misdemeanor instead of a felony starting next year. The goal was to reduce incarceration for those caught with narcotics such as cocaine or heroin.

But U.S. Attorney Jason Dunn says when it comes to the potent opioids, that amount is the equivalent of as many as 2,000 fatal doses of fentanyl and more than 200,000 fatal doses of carfentanil. 

Fentanyl, which is fatal to humans at about 2 or 3 milligrams, is 50 times more potent than heroin and 100 times more potent than morphine. Carfentanil is approximately 100 times more potent than fentanyl.

“We’re sending mixed messages at a time when we’re trying to raise the public’s awareness about the damage that fentanyl can do and the risk of overdose,” Dunn said.

Jason Dunn, Colorado’s U.S. attorney, photographed on Friday, April 12, 2019. (Jesse Paul, The Colorado Sun)

Dunn’s comments come after his office last week announced federal charges against two men arrested after Denver police found a kilogram of fentanyl in a home in the southwest corner of the city. Last year, federal prosecutors sent two people to prison for selling almost 100% pure fentanyl as “White China” heroin, which resulted in at least three overdose deaths in Colorado.

House Bill 1263 makes possession of up to 4 grams of almost all drugs for personal use a misdemeanor, with exceptions for “date-rape drugs” like flunitrazepam, ketamine and gamma hydrozybutyrate, also known as GHB, which remain a felony to posses in any amount. It also remains a felony to possess any amount of cathinones, also known as “bath salts.”

The legislation goes into effect on March 1. 

“One of the things that I see our job as is to raise public awareness about what new drugs are coming into Colorado and how we are going to treat those who choose to bring those drugs here,” said Dunn, who was appointed by President Donald Trump. “Under federal law, we take fentanyl very seriously. It’s a substantial risk to the public.”

Dunn said the federal sentencing range for possessing 4 grams of fentanyl is between one and four years in federal prison. The new state law doesn’t change federal law or how Dunn can enforce it.

The Colorado District Attorneys’ Council, which represents the state’s 22 elected district attorneys, said they would like to see the bill revisited in the upcoming legislative session, which begins in January, and for language to be included that would make possessing any level of fentanyl a felony.

State Rep. Leslie Herod, a Denver Democrat and one of the lead sponsors of the bill defelonizing most personal-use drug possession, said she and other lawmakers took into consideration the fact that 4 grams is an incredibly potent amount of fentanyl. But she said that if anyone were to be caught with that amount they’d likely be charged with trying to distribute it and that any district attorney “worth their salt” would be able to prosecute that felony offense.

“If they can prove intent to distribute, which is not that hard, it’s a felony,” Herod said, adding that the bill clearly states prosecutors can still pursue felony drug distribution charges no matter what amount of a substance someone has.

State Rep. Leslie Herod, D-Denver, at a rally in support of the DACA program. (Jesse Paul, The Colorado Sun)

She also added that people might be in possession of fentanyl and not realize it since the drug is often mixed in with other substances and if it were a felony to possess it at any level, people could be unfairly facing prison time. 

Finally, Herod points out that other states have defelonized personal-use drug possession and that the bill was originally drafted without the 4 gram limit, leaving the amount open ended. She said that threshold was put in place at the request of law enforcement.

“I do think that the limit is somewhat arbitrary,” she said, “but I don’t think that opening it up to decreasing (the possession amount) for fentanyl would really get at what the problem is, and that problem is addiction. We cannot incarcerate ourselves out of addiction.”

At the same time, Herod said, “if law enforcement is concerned about getting these drugs off the street, nothing in this bill stops them.”

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Stat Rep. Shane Sandridge, a Colorado Springs Republican who also was a prime sponsor of the bill, rejected the argument that making possession of any amount of fentanyl serves as a deterrent. “If you’ve dealt with people in high-level addiction, it’s almost laughable that you would think a felon label will deter them,” said Sandridge, a former police officer. “It’s ludicrous.”

Sandridge also thinks the measure, as is, will save Colorado taxpayers money by directing people dealing with addiction into treatment instead of jails and prisons. “I think this bill could be one of the biggest money-saving bills of the year,” he said.

Colorado Gov. Jared Polis, who signed House Bill 1263 into law, echoed the sentiments of Herod and Sandridge.

“This year, Democrats and Republicans worked together to pass a bipartisan new law because there is no way to tackle the mass incarceration crisis without dealing with drug offenses,” Polis’ spokesman, Conor Cahill, said in a written statement. “The bill allows for district attorneys to charge for intent to distribute if there is evidence that supports that. Fentanyl is a deadly and dangerous substance that has exacerbated the opioid crisis and taken the lives of too many individuals.”

MORE: For months Colorado has quietly been in talks for another multibillion-dollar opioid settlement

Tom Raynes, executive director of the district attorneys’ council, said it’s not necessarily true that it’s so easy to charge someone with a felony drug distribution charge. Besides, he argues, part of making fentanyl possession a felony is that it’s a deterrent. 

“Why don’t we put the brakes on implementation,” he said. “It’s a bill with good intent, but it wasn’t complete.”

Raynes said he would also like to see more money accompany the bill to help build out addiction treatment before most drug possession is defelonized. Right now, he thinks the legislation puts people suffering through substance abuse “on the streets without giving them the necessary and adequate treatment, both in terms of providers and clinics that would actually treat it as a health issue.”

The legislation passed the Colorado legislature with bipartisan support, clearing the Senate on a 20-15 vote and the House on a 43-20 vote.

CORRECTION: This story was updated at 4:35 p.m. on Tuesday, Feb. 22, 2022, to correct a source’s error. Four grams of fentanyl could kill as many as 2,000 people.

The Colorado Sun — Desk: 720-432-2229 Jesse Paul is a political reporter and editor at The Colorado Sun, covering the state legislature, Congress and local politics. He is...