Possessing fentanyl with the intent to distribute the powerful opioid would become a more serious felony crime in Colorado under a bill set to be introduced by Democrats and Republicans in the legislature this week.
But having less than 4 grams of the drug for personal use would remain a low-level, misdemeanor offense.
The measure, which includes millions of dollars in spending, is state lawmakers’ response to skyrocketing overdose deaths from fentanyl in Colorado. Five people died from a suspected fentanyl overdose in Commerce City in February. Authorities believe the people thought they were ingesting cocaine.
The bill would:
- Make possessing 0-4 grams of a fentanyl compound or mixture with the intent to distribute it a Class 3 drug felony, punishable by two to six years in prison
- Make possessing 4-50 grams of a fentanyl compound or mixture with the intent to distribute it a Class 2 drug felony, which carries a penalty of four to 16 years in prison
- Make possessing more than 50 grams of a fentanyl compound or mixture with the intent to distribute it a Class 1 drug felony. That comes with a prison term of up to 32 years.
- Make possessing a pill press used to mix fentanyl with other drugs a Class 1 drug felony
Currently, possessing up to 14 grams of fentanyl with an intent to distribute is a Class 3 drug felony, while possessing between 14 grams and 225 grams of the drug with an intent to distribute is a Class 2 drug felony. Possessing more than 225 grams of fentanyl with an intent to distribute is a Class 1 drug felony.
“Fentanyl is extremely deadly,” said Gov. Jared Polis, who supports the measure. “It deserves different legal treatment than other drugs. I think that increased criminal penalties are a key part of our response, as well as better detection and prevention.”
The Democrat said the new fentanyl bill is part of his broader package of legislation to address rising crime across Colorado.
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Additionally, the new bill would make it a Class 1 drug felony to distribute fentanyl if it leads to someone’s death, though there is a carveout for people possessing less than 4 grams of the drug who try to assist someone who overdoses.
The measure includes a $20 million allocation to the Colorado Department of Public Health and Environment to fund distribution of the opioid overdose reversal drug Narcan. Money would also be set aside for the purchase of fentanyl test strips.
The bill, however, leaves in place a much-criticized 2019 law that made possession of up to 4 grams of almost all illicit drugs for personal use a misdemeanor.
The 2019 measure, House Bill 1263, was meant to treat drug addiction as a public health issue instead of shunting the problem over to the criminal justice system. But critics say the 4 gram limit is dangerously out of step with the potency of fentanyl, a synthetic opioid fatal at about 2 or 3 milligrams.
Four grams could amount to as many as 2,000 fatal doses of the drug, which is 50 times more potent than heroin and 80 to 100 times more potent than morphine.
Republicans have seized on the 2019 law, which passed with bipartisan support, to attack Democrats heading into the November election.
Prosecutors have called on the governor and legislature to alter the law and make possessing any amount of fentanyl a felony.
The bill attempts to balance requests from law enforcement for more tools to “get drug dealers off the street” while offering resources to help save lives, said House Speaker Alec Garnett, a Denver Democrat and prime sponsor of the new bill.
Polis — who previously said the 2019 bill “got some things wrong” — said Wednesday that the new proposal was “closer to right.” He and Attorney General Phil Weiser, a fellow Democrat, have expressed support for increasing criminal penalties tied to fentanyl.
“We’re very open to a wide range of additional criminal penalties,” Polis said Wednesday.
The one tweak to the misdemeanor possession law under the new bill would be that offenders would have to go through mandatory substance-abuse assessment, and possibly treatment, if convicted of possessing fentanyl for personal use.
Rep. Leslie Herod, a Denver Democrat who sponsored the 2019 legislation and is working on this year’s measure, too, said the new bill combines stiff penalties for high-level drug dealers with a “public-health approach.”
“It’s a tough issue. People are dying from fentanyl overdoses,” Herod said. But “incarceration is not going to get us out of this.”
Rep. Mike Lynch, a Wellington Republican who has been working on the fentanyl overdose issue, will be one of the prime sponsors of the new bill.
Lynch said he has reservations about the bill’s price tag, which he said is $29 million, but that “it’s worth the experiment” given how lethal fentanyl is.
If it were up to him, Lynch said he would repeal the 2019 misdemeanor drug-possession law, but he recognizes that’s not “politically feasible.”
More than 800 people died from fentanyl across Colorado in 2021, up from 540 the year before, according to state health department data. That includes 19 people in Boulder County who died of fentanyl or a combination of drugs including fentanyl since February 2021.
Earlier this month, federal prosecutors announced they had filed charges against a woman accused of selling fentanyl pills to two Colorado Springs high school students. A friend of one of the students snorted a pill and died at her desk at school.
While fatal fentanyl overdoses have skyrocketed, there have been only a few dealers charged with causing those deaths.
Prosecutors say dealers who distribute fatal doses of fentanyl are difficult to prosecute given the way the drug is distributed. That’s because prosecutors must show a person knew they were dealing fentanyl and consciously disregarded the risk it could result in death — a high bar, said Mesa County District Attorney Dan Rubinstein, a Republican.
He expects convictions would increase under the new bill. “This bill really gives us a much-needed tool to respond,” he said.
Rubinstein said not all of the state’s district attorneys are OK with fentanyl possession of personal use of 4 grams or less remaining a misdemeanor. “It’s something that I think we could modify some,” he said. “There’s questions about how much changing that number is really going to benefit us.”
But Rubinstein said the focus on treatment in the new bill is a good start.
“We’ll see if that works,” he said. “And as this problem evolves, and as our responses evolve, we can obviously go through legislation next year, in future years to address that.”