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Colorado lawmakers tighten fentanyl possession limits for felony charges; bill passes committee

Possession of 1 gram or more of compound would be felony if person knew it contained fentanyl
fentanyl house judiciary
Posted at 6:47 PM, Apr 13, 2022

DENVER – Lawmakers on the House Judiciary Committee on Wednesday amended their bill focused on fighting the fentanyl problem to make it a felony for someone to knowingly possess 1 gram or more of fentanyl or any compound containing fentanyl.

The committee also passed an amendment that would cut down on the time someone convicted of that particular crime would have to wait to have their record sealed after they complete their supervised release, another that would allow people convicted of the possession felony to vote while in jail, and another that would up the severity of the drug felony if a compound contains at least 60% fentanyl – though the state cannot currently test for exact fentanyl quantities.

HB22-1326's passage through the Judiciary Committee came after about 13 hours of public testimony that started Tuesday afternoon and went into the early hours of Wednesday morning, and another three hours of debate over the proposed amendments on Wednesday afternoon.

About half of the testimony came from family members of people who died of fentanyl poisonings or those who had survived overdoses and successfully gotten treatment for addiction.

Several medical doctors who specialize in addiction treatment, and other addiction specialists, spoke Tuesday afternoon to tell lawmakers they were making a mistake by implementing stricter penalties on people for possession, saying that treatment programs are far more effective than criminal punishments for people dealing with addiction and that making drug possession for fentanyl – which is nearly always found on the streets in compound form – a felony would only further the addiction cycle and cost more money because of incarceration and court costs.

Meanwhile, some prosecutors and law enforcement officials said all fentanyl possession needed to be a felony, and many said that would deter people from using drugs and fentanyl.

Though the amendments made to the measure will not be incorporated until the full House adopts HB22-1326, the most crucial amendment moved the threshold at which someone would face a drug felony for possessing any compound containing any amount of fentanyl from 4 grams to 1 gram.

That means that 1 gram of pills, or cocaine, or any other drug, that contains any amount of fentanyl will be a felony if that person “knew or reasonably should have known” that the mixture had fentanyl in it.

Possessing less than 1 gram of a compound containing fentanyl would be a level 1 drug misdemeanor for the first three times someone is convicted of that crime. The fourth time, it would be a level 4 drug felony.

Possession of between 1 and 4 grams of a compound containing fentanyl would be a level 4 drug felony under the amended bill. Under the original bill, possession of more than 4 grams would also be a level 4 drug felony.

Rep. Mike Lynch, the Wellington Republican who is one of the prime sponsors of the bill, was the lone Republican on the committee to vote in favor of moving the amended bill on to House Appropriations, where it will be heard next.

He and the other prime sponsor on the committee, House Speaker Alec Garnett, D-Denver, each said ahead of the final vote that they knew the bill is not perfect, will need more work, and that there will be no way to make everyone happy.

“There is no silver bullet,” Garnett said. “Both sides are like, ’It has to be only this way or only this way,’ and we know in this building that’s not how it works. This is not the perfect solution … but this bill, in my opinion, must pass.”

Lynch talked about how doing the research while developing the bill had changed his mind on a lot of his prior notions about addiction.

“It’s easy for a cowboy hat-wearing Republican from northern Colorado to say slam ‘em, put ‘em back in jail. But I’ve done research and maybe there’s other ways around it,” he said, adding that not acting to address the surge in fentanyl deaths “would be a complete dereliction of our duty.”

Republican Reps. Terri Carver, Rod Bockenfeld and Stephanie Luck were the three no votes on the measure’s passage. All three had voted in favor of a failed amendment that aimed to make possession of any compound containing fentanyl a felony.

Rep. Kerry Tipper, D-Lakewood, the vice chair of the committee, said she felt like slamming her head against the wall as some of those Republicans continued to conflate pure fentanyl and compounds, which can contain just a trace of fentanyl, in terms of the deadly threat the drug poses.

“We’re not talking about reality when we say that. I don’t know how else to articulate it. We’re not operating in reality if that’s what we’re legislating to,” Tipper said.

Harm reduction specialists have repeatedly tried to make this distinction as law enforcement agencies often refer to a certain number of pills – “blues,” they are often showing up as on the street – being able to kill thousands of people. But those references are to how deadly pure fentanyl is, and oftentimes, people who are dying of fentanyl poisoning are ingesting other drugs willingly that they do not know are laced with fentanyl.

Rep. Jennifer Bacon, D-Denver, spoke about how further criminalizing people who possess fentanyl and not just dealers would victimize people experiencing homelessness and other communities already disproportionately caught up in the judicial system due to low-level crimes and their inability to get out of the cycle.

“No one has evidence to show felonizing drugs decreases overdoses – not across our state or nationally. Every provider talked about how felonizing drugs harms someone’s road to recovery,” she said. “When we move into spaces making it easier to felonize possession, we’re increasing those risks and the collateral harm through those consequences.”

She did end up voting to move the bill forward but said it would need more work.

The others who joined her, in their closing remarks, said the other aspects of the bill – which includes greatly increasing services for people who suffer from addiction, increasing access to fentanyl strips and Narcan, and a host of educational and prevention measures – were plenty reason to continue moving forward with the bill.

“This is one of the biggest issues in our communities right now, how we deal with fentanyl,” said Rep. Adrienne Benavidez, D-Adams County. “I think this is a big step forward.”

In a statement, House Minority Leader Hugh McKean, R-Loveland, said the legislature had taken the first step “to toughen penalties and remove this deadly poison from our streets,” adding that “there is still significant work to do on this legislation.”