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This photo provided by the U.S. Drug Enforcement Administration's Phoenix Division shows one of four containers holding some of the 30,000 fentanyl pills the agency seized in one of its bigger busts in Tempe, Ariz., in August 2017. Administration via AP)

Colorado Gov. Jared Polis and state lawmakers are rethinking a 2019 law that made possession of thousands of lethal doses of fentanyl a misdemeanor as overdoses from the potent opioid continue to rise. 

The law is getting even more attention after five adults died from a suspected fentanyl overdose Sunday in Commerce City. Last year, 803 people died from fentanyl across Colorado, up from 520 in 2020, the latest data from the state health department show. Officials say last year’s total could be even higher, citing a three-month reporting delay.

House Bill 1263, which had both Democratic and Republican sponsors, passed three years ago with broad bipartisan support. It made possession of up to 4 grams of almost all drugs for personal use a misdemeanor, with exceptions for “date-rape drugs,” such as ketamine and gamma-hydroxybutyrate, also known as GHB, which remain a felony to possess in any amount. 

Critics have complained that allowing people to possess 4 grams of fentanyl is ludicrous since that could amount to as many as 2,000 fatal doses of the drug. Fentanyl, which is fatal at about 2 or 3 milligrams, is 50 times more potent than heroin and 100 times more potent than morphine.

The 2019 measure still allows prosecutors to pursue felony drug distribution charges against people who possess any amount of illicit drugs, but prosecutors warned in 2019 — and continue to warn today — that isn’t enough. 

“The only people (who) can fix this are the governor and those elected to the Colorado legislature,” El Paso County District Attorney Michael Allen, a Republican, wrote in an open letter Tuesday. 

There are signs that Polis and lawmakers are planning to heed that call. 

Polis, a Democrat, last week told The Unaffiliated, The Colorado Sun’s politics and policy newsletter, that the 2019 bill, which he signed into law, “got some things wrong.”

“When somebody has enough fentanyl to kill 1,000 people or 2,000 people, absolutely we need additional criminal sanctions to make sure that they can be detained and prevented from harming Coloradans,” Polis said.

The governor said he’s hopeful bills will be passed this year that allow “for additional criminal penalties around fentanyl.” That’s something Colorado Attorney General Phil Weiser, also a Democrat, has called for as well.

“We all know that criminal penalties don’t solve an issue,” he said. “Having that ability can be helpful in reducing deaths from fentanyl. But, sadly, no matter what the laws are across the 50 states, fentanyl deaths have increased. And to get at that not only includes increased criminal sanctions, but also includes education, prevention efforts.”

House Speaker Alec Garnett, D-Denver, said Tuesday that he is working with public health officials and law enforcement to get the policy right. He thinks a bill may be introduced within a week, but wouldn’t share specifics.

“We’re trying to find the right total policy solution,” he said. “Is 4 grams of fentanyl a lot of fentanyl? Yes. Will it kill a lot of people? Yes. Does putting addicts in jail solve the problem? No. We’re working with all the stakeholders involved to arrive at the right place. I believe that we will get there.”

Garnett warned, however, that he thinks the situation with fentanyl in Colorado is “going to get worse before it gets better.”

The 2019 bill was aimed at treating drug addiction as a public health issue as opposed to trying to use jails and prisons to address the problem. The idea was to save the harshest penalties only for dealers.

State Rep. Leslie Herod, a Denver Democrat who sponsored the 2019 measure, warned back then that keeping fentanyl possession as a felony would be unfair because people may have substances mixed with fentanyl and not realize it. The five people who died in Commerce City on Sunday are suspected of having ingested what they thought was cocaine but what really was fentanyl.

But lawmakers also now believe that fentanyl may require a different approach because it is so potent.

Sen. Pete Lee, a Colorado Springs Democrat who was also a prime sponsor of the 2019 bill, said he’s amenable to changing the policy. “I am open to considering modifying the bill,” he said Tuesday. 

Rep. Shane Sandridge, a Colorado Springs Republican who was one of two GOP prime sponsors of House Bill 1263, said making drug possession a felony doesn’t deter people from taking drugs. But he’s drafted legislation, which hasn’t been introduced yet, that would make having any amount of fentanyl a felony because of how potent it is.

Sandridge, a former police officer, also wants to implement a 25-year minimum prison sentence for people who deal fentanyl and make it a crime to expose people to the drug. He even wants to classify fentanyl as a weapon of mass destruction in state law.

State Rep. Shane Sandridge speaks on the House floor during hour six of debate around House Bill 1106 on Monday, March 8, 2021. (Screenshot)

He said the slate of legislation he’s proposed constitutes “an all-out war on fentanyl” and would make Colorado’s fentanyl laws among the most stringent in the nation.

Republicans on the 2022 campaign trail have attacked Democrats over the 2019 bill.

Sen. Barbara Kirkmeyer, a Brighton Republican, blasted the reforms during a speech Tuesday on the Senate floor. She is running for Congress this year in the 8th Congressional District, which includes Commerce City.

“There are times when the legislature just gets it wrong,” said Kirkmeyer, who wasn’t a state lawmaker in 2019. “It’s time to put party affiliation aside, break through the one-party grip in this legislature, and admit that well-intentioned reforms sometimes bring about disastrous consequences.”

Garnett said the attacks are immensely frustrating since the 2019 measure passed with much GOP support. The bill cleared the Senate by a 20-15 vote. It advanced out of the House 40-25. A handful of Republicans in both chambers backed the bill. (Democrats have controlled the legislature and the governor’s office since 2019).

The speaker even chastised a reporter Tuesday who said during a news conference that House Bill 1263 was passed by Democrats. “You should go back and make sure you look at the bill,” he said. “You gotta make sure you frame this right.”

Colorado Sun staff writer Olivia Prentzel contributed to this report.

Jesse Paul is a Denver-based political reporter and editor at The Colorado Sun, covering the state legislature, Congress and local politics. He is the author of The Unaffiliated newsletter and also occasionally fills in on breaking news coverage....