Nicolais: The Fentanyl Accountability and Prevention Act comes spiked with trace amounts of bad policy

Fentanyl is killing Coloradans. Fentanyl is killing families, it is killing businesses and it is killing communities. That is exactly why the most heated bill of this legislative session has been the Fentanyl Accountability and Prevention Act. 

Unfortunately, good politics appears headed toward bad policy. Or at least less good policy. 

Critics of the bill have declared that possessing any amount of fentanyl should be a felony. As a basis for this position they argued that possession of up to four grams of fentanyl could kill up to 2,000 people. That statistic has been trotted out by police chiefs, politicians and editorial boards seeking to undermine the Fentanyl Accountability and Prevention Act.

It is exceedingly unlikely that anyone except an illegal drug manufacturer or distributor (both of whom would suffer more severe penalties under this bill) would possess four or more grams of just fentanyl. Even in counterfeit pills, the copied drug and inactive ingredients comprise most of the pill’s weight. Conversely, the included fentanyl is a tiny, tiny fraction — generally between one and five milligrams (anything over two is potentially deadly).

Addicts suffering from substance use disorders simply do not possess fentanyl in the quantities critics suggest.

To the contrary, many addicts possess trace amounts of fentanyl mixed in with other drugs. That is the nefarious nature of this deadly drug; the fentanyl on our streets is not sold in a pure form, but mixed in with cocaine, heroin, methamphetamine or counterfeit prescription pills. Predators looking to profit on illicit drug sales mix fentanyl into each to increase the perceived potency. That is why the best parts of this bill focus on punishing predators and increasing harm reduction efforts such as distribution of NARCAN and testing strips. 

But in an election year politics will always trump policy.

Republicans in particular have bludgeoned Democrats to make possession of fentanyl a felony. That cudgel combined with a looming, tough November general election has led several leading Democrats to jump on the bandwagon. Notably, both Gov. Jared Polis and Attorney General Phil Weiser recently called for felonizing possession of fentanyl.

That forced a round of amendments, most notably one that makes it a felony to “knowingly” possess “any material, compound, mixture, or preparation that weighs more than one gram and not more than four grams and contains any quantity of fentanyl.” Critically, it is the weight of the entire mixture — not just the fentanyl — that makes possession a felony.

For example, cocaine is often sold in amounts weighing one-eighth of an ounce. That is about three and a half grams. If the cocaine contains even a nondeadly trace of fentanyl, possession could be a felony under the amended bill.

It is likely that a felony would be charged. Even if the vagaries of proving “knowing” possession may be an obstacle to conviction, prosecutors can still use the threat to obtain stiffer penalties and plea bargains. In the best-case scenario, that would force more people into treatment. In the worst case, it will flood already overcrowded prison cells. 

The dollars required to house prisoners suffering from substance use disorders would be better spent on already overwhelmed treatment programs. It is critical to treat addiction and help its victims overcome its terrors and return to productive lives. When they do, our communities are better, stronger and safer. 

The likelihood for that to happen drops precipitously when people are locked in prison under felony possession charges. Even upon release, living with a felony on their record severely hampers their ability to re-integrate into society. That frequently leads to more crime, more pain and more death.

It is true that no amount of illegal fentanyl is safe. But that only makes it more important for us to get the state’s approach to getting it off our streets right. That means punishing those who push it into our communities and helping those who suffer from its misuse.

The Fentanyl Accountability and Prevention Act contains plenty of promising policies that will help suffering Coloradans. It is too bad it came spiked with trace amounts of bad policy included in the mix.

Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq