DENVER — Colorado voters will likely decide next year if the state should implement harsher penalties for selling and possessing illicit fentanyl, a powerful synthetic opioid.
Initiative #85, which is considered a citizen initiative, was spearheaded by Advance Colorado. The organization strives to "push back on the progressive policies" which they believe have set Colorado "on the wrong track."
In order to secure a spot on the ballot, a petition must receive 124,238 signatures from registered voters for this election cycle. According to Advance Colorado, they submitted roughly 200,000 signatures for Initiative #85 on Thursday morning.
"There is no amount of fentanyl distribution that should be tolerated. And so, there won't be. If you sell, if you possess with the intent to sell, you manufacture drugs with fentanyl in them, you are now going to face eight to 32 years in the Department of Corrections," explained District Attorney for the 23rd Judicial District George Brauchler. "But at the same time, this measure does something that is also needed, and it provides the appropriate incentive for those who are addicted to this poison to get the treatment — the court ordered, and hopefully resource treatment — that they need to no longer be afflicted with this addiction.”
In addition to mandatory minimum sentences for Level 1 drug felonies related to distributing fentanyl, Initiative #85 would make the possession of any amount of fentanyl a felony charge in Colorado and mandate drug rehabilitation treatment for defendants charged with fentanyl possession.
"This measure ensures that anyone selling fentanyl faces jail time. No loopholes, no exceptions. Whether it's one pill or 100 pills, if you're selling fentanyl in the State of Colorado, you will go to jail," said Douglas County Sheriff Darren Weekly. “It also takes a compassionate approach and realistic approach with users. Instead of letting people cycle through arrest and relapse, the measure requires court-mandated treatment so that low-level offenders will get the treatment that they need and break the cycle of addiction.”
Initiative #85, if placed on the 2026 ballot and approved by voters, would change the scale set by House Bill 22-1326, which classified the possession of anywhere between one to four grams of fentanyl as a Level 4 drug felony. The possession of less than one gram of fentanyl is currently a misdemeanor charge in Colorado.
Initiative #85 would make the possession of any amount of fentanyl — including under one gram — a felony charge.
Proponents point to a provision of Initiative #85 that would mandate treatment in Level 4 drug felony cases related to fentanyl, where a defendant would be able to reduce their charge by completing the court-ordered drug rehabilitation treatment.
"Accountability is essential to saving lives and reducing crime. At the same time, this measure offers just as important, court-mandated treatment for individuals experiencing substance use disorder," said Andrea Thomas, who lost her daughter to fentanyl poisoning in 2018. "This is smart, it's compassionate, and it's exactly what families have been asking for.”
As part of that 2022 legislation, titled the Fentanyl Accountability and Prevention Act, there was an exception for defendants accused of Level 4 drug felonies who can establish with evidence that they made a "reasonable mistake" and did not know the drug in their possession contained fentanyl.
Denver7 asked proponents of Advance Colorado if Initiative #85 would change that part of the law.
“What we actually see these days is that people are seeking out fentanyl. Now, it's not so mysterious anymore. Drug addicts are seeking this stuff out, they know what they're getting, and it's still killing people, still leading to overdose deaths, and so I'm not sure that's as big of a concern as it was back when fentanyl first hit," said the District Attorney for the 4th Judicial District, Michael Allen.
"There's some language in the existing law, and if you're looking for more evidence that the legislature is offender friendly, as opposed to victim-focused, they built in a provision that said, 'Hey, if you deal fentanyl,' — if you claim reasonably that, 'Hey, I didn't know there was fentanyl in it' — you can escape the more punitive sanctions that come with the law," Brauchler added. "What this Initiative #85 does is puts the burden on the drug dealer and says, better damn well know what drugs you're putting out in the streets, because if it has fentanyl, you're going to be held accountable for it.”
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However, progressive Democrat and State Rep. Javier Mabrey believes Initiative #85 is an extension of "failed policies of the past."
"It's really important to be clear that increasing criminal penalties for Coloradans who are struggling with substance use disorders will not deter crime," Mabrey said. "There are decades and decades and decades of research that show that the era of mass incarceration did not make us safer... Why are we talking about expanding prisons and doubling down on mass incarcerations when we need to be talking about funding schools and health care.”
Mabrey believes Initiative #85 will have unintended consequences, including incarcerating individuals who would be better served by mental health and substance use disorder resources.
“The fentanyl crisis is ultimately a public health crisis, and we need to treat a public health crisis with a public health response," Mabrey said. "We have already been down this road with the War on Drugs in the 1970s, 80s and 90s. It didn't make us safer, it did not reduce drug use. That is clear.”
- Watch the full press conference from Thursday, where proponents explain Initiative #85
Brooke Perez understands how critical it is to examine best practices to support those experiencing substance use disorders. Perez lost her older sister, Krystle, in 2017 to a fentanyl overdose. She then lost her older brother, Kevan, in 2020 to an overdose.
"It definitely changed me — inside out. I think it made me more aware of this issue that we are faced with every day in the community. And so, I think it's changed me for the better," Perez said. “What I'm doing now is not something I had ever planned for me to do. It was not in my future goals at all.”
Perez is the president and co-founder of KK Fearless, a nonprofit organization she and her family created in 2018 after her sister passed away. They host benefit concerts to raise money, which is used to donate musical instruments to local treatment facilities.
Denver7 spoke with Perez about her initial thoughts on Initiative #85.
"I think if we were able to do harsher penalties on the distributor, that it could save a lot of people out in the community," Perez said. “If it provides a deterrent from people on the streets using drugs, and it's saving lives, I think it's a win-win for both, right?”
Still, Perez plans to pay attention to the arguments on both sides of the issue, especially if approved for next year's ballot.
The Colorado Secretary of State's office will evaluate the petition signatures they received in support of Initiative #85, and must determine if the measure will make the 2026 General Election ballot by Dec. 19.
If Initiative #85 were to pass, it would be implemented at the start of 2027.
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