A bill that raises penalties for possession and distribution of fentanyl passed Colorado’s Judiciary Committee on April 13.
After more than 11 hours of testimony on April 12, the bill …
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A bill that raises penalties for possession and distribution of fentanyl passed Colorado’s House Judiciary Committee on April 13.
After more than 11 hours of testimony on April 12, the bill passed 8-3 with an added amendment that makes knowingly possessing more than 1 gram of fentanyl or a fentanyl compound for personal use a felony. Adding the amendment passed on a 7-4 vote.
The legislation comes as fentanyl-related deaths skyrocketed across the North Metro area in 2021.
The Office of the Coroner for Adams and Broomfield counties reported that deaths where fentanyl toxicity is included in the primary cause of death almost tripled in Westminster from eight in 2020 to 22 in 2021, from four to nine in Northglenn and from one to three in Brighton.
In Thornton, deaths decreased from 15 to 13 between 2020 and 2021 and in Commerce City from six to four.
However, in Commerce City, deaths in 2022 surpassed the number recorded n 2021 in one day. On Feb. 20, five adults in Commerce City were found dead, and according to a news release from the Commerce City Police Department, the deaths were linked to ingesting suspect fentanyl.
House Bill 1326 would increase penalties for distributing, making, dispensing or selling fentanyl. Those found to possess with the intent to distribute more than 50 grams of the drug could be charged with a Level 1 drug felony under the bill, which is punishable by between eight and 32 years in prison and between $5,000 and $1,000,000 in fines, or both.
Smaller amounts, such as between 4 and 50 grams, would be considered a Level 2 felony, punishable by between four and eight years in prison and between $3,000 and $750,000 in fines, or both.
The bill would consider less than 4 grams of fentanyl to be a Level 3 drug felony, punishable by between two to four years in prison and between $2,000 and $500,000 in fines, or both.
New tools for police, DAs
District Attorney Brian Mason, representing Adams and Broomfield counties, testified at the Judiciary Committee hearing on the bill.
“I have become an unintended expert on fentanyl because of the degree to which it has ravaged my community,” he said.
He referenced the Commerce City case and noted the victims thought they were taking cocaine and instead snorted pure fentanyl. He said it is the largest, single incident of fentanyl poisoning and deaths in the entire country to date.
He said he supports the bill because it gives him new tools to hold accountable those who distribute the drug. Those most likely to die from fentanyl, he said, are young people looking to experiment with new drugs.
“Because this drug is so lethal, we must use every tool to get it off the streets,” Mason said.
He pushed for strict penalties on possession. He said 4 grams of fentanyl is more than the amount a casual user would carry, referencing a 2019 House bill. That bill, the Offense Level For Controlled Substance Possession, decriminalized possession of up to 4 grams of almost all illicit drugs for personal use.
But allowing that much fentanyl makes little sense, Mason said, because the drug is so deadly.
“I don’t want to lock up users, my team doesn’t want to lock up users, we don’t lock up basic, small-time low-level users, but 4 grams is not a user amount and we must have reasons to get this poison off the streets,” he said.
Rep. Adrienne Benavidez, D-Commerce City, pushed back, saying the proposed bill calls for 4 grams of any drug that contains fentanyl, meaning it could be 3.9 grams of cocaine and contain .1 grams of fentanyl.
“Under current law, it doesn’t mean 4 grams of pure fentanyl, it means 4 grams of whatever the drug is having some fentanyl on it,” she said.
Rep. Leslie Herod, D-Denver, then asked Mason if a case came to him over an eight-ball of cocaine with fentanyl in it, whether he would prosecute the cocaine or fentanyl charges, to which he said the facts of the case would lead him to make a decision.
Referencing the Commerce City case, Mason called for more resources and explained that since the case is so large, support from the DEA, North Metro Task Force, the U.S. Attorney’s Office and others came to his disposal. That’s rare, he said.
The bill has received support from both sides of the aisle, and Northglenn’s Kyle Mullica, Democrat majority co-whip as well as a trauma nurse, sees the bill as adding to efforts aimed at addressing the issue.
“We need to be doing all that we can down here and using every tool that we have to try to deter this drug from being on our streets,” he said. “For those who are putting it on our streets, we need to be throwing the book at them.”
He said the bill comes as a needed deterrent, but he emphasizes the demand for more addiction and mental health infrastructure. He calls for more treatment beds, increased funding for recovery programs and more mental health access.
“I don't think the ideal thing is jail; it's treatment,” he said.
Some addiction professionals do not agree with the proposed legislation.
Lisa Raville, executive director of the Harm Reduction Action Center in Denver, points to previous policies enacted in the United States.
“We don't believe in criminalization because we've never seen that work,” she said in an interview. “We're 50 years into the war on drug users.”
She believes increased penalties and criminalization for drug users in the past has not produced a decrease in overdoses or drug use.
According to a brief from the Harm Reduction Action Center in March 2022, a study done by the Northeastern University School of Law’s Health in Justice Action Lab found no evidence that prosecuting drug-induced homicides slows the sale of illegal drugs.
“DIH prosecutions discourage witnesses to overdoses from calling 9-1-1 for fear that they will be arrested and charged with DIH or other serious crimes,” the study said.
The brief also explains that incarcerating drug dealers has little or no impact on disrupting drug supplies because the demand for drugs is still present and those dealers will be replaced by new recruits. Or, there will be increased drug selling by existing dealers.
Raville gave an example of laws surrounding prescription drugs.
“When legislators legislated doctors out of prescribing opioids, it's not like people stopped using drugs. They went to the streets to an unpredictable drug supply, such as heroin,” she said.
Raville also said the drug supply is very unpredictable, and there will be another drug contaminating the supply after fentanyl.
Currently, she said, the only safe supply of drugs is alcohol and cannabis due to regulation. If the government regulated cocaine, methamphetamine, heroin and other drugs, drug users would know that their drugs are pure and are not laced with anything, such as fentanyl.
“What we tell our people that are using street drugs is to just assume that fentanyl probably contaminated the drug that you're using,” said Lauren Mitchell, nurse manager of the Tri-County’s Health Department’s Harm Reduction and HIV Prevention Program.
She said the potency of fentanyl is about 50 times more than heroin.
According to the United States Drug Enforcement Administration, fentanyl is a synthetic opioid that is 80-100 times stronger than morphine.
“Pharmaceutical fentanyl was developed for pain management treatment of cancer patients, applied in a patch on the skin. Because of its powerful opioid properties, Fentanyl is also diverted for abuse,” the DEA’s website says.
The DEA said clandestinely-produced fentanyl is primarily manufactured in Mexico, and it is used for intense, short-term highs with temporary feelings of euphoria, slowed respiration and reduced blood pressure.
“Because they can produce this in a lab, it's faster, it's easier and it's cheaper and so it kind of bled out into the market,” Mitchell said.
North Metro efforts
In Adams County, harm reduction efforts are at play.
Mitchell explained how the Tri-County Health Department is using the harm reduction strategy.
She said the program sends workers into the field to provide clean syringes, fentanyl testing strips and Naloxone, a medication used to reverse the effects of opioid overdose. They also educate people about overdose prevention and how to identify an overdose.
“It's not perfect, but we're looking at reducing harm,” she said.
The department is also working to arm as many people as possible with Naloxone to help reduce overdose deaths, she said.
“We recently had a situation in a sandwich shop where somebody called us and they found someone in the bathroom,” she said. “So a lot of this is coming into a lot of public places.”
The county also provides referrals for medication-assisted treatments, substance abuse treatment services and mental health services.
She said the homeless community is one of the higher-risk populations the department targets for harm reduction, but she emphasized that an overdose can happen to anyone.
In Jefferson County, similar efforts are underway.
According to Michael Miller, the opioid initiative's coordinator for Jefferson County Public Health, the county offers a clinic with syringe exchange services, overdose prevention education, fentanyl testing strips and Naloxone.
How they come to these solutions, Miller explained, is by bringing in experts from the criminal justice system, hospitals, harm reduction, treatment, recovery and prevention.
“We bring those folks together to attempt to really clearly define the problems that are most pressing within the community — right now it's overdose prevention and access to treatment — and then we create initiatives to address those gaps,” he said.
For the average person, becoming familiar with Naloxone and carrying Naloxone can help the issue tremendously.
Most overdoses that get reversed in the community happen between people who use drugs, but there are other instances when others step in to assist.
“There are a ton of other circumstances where you might be passing by somebody on the street who's experiencing an overdose event or you might live in a household where there are opioid medications that somebody has been prescribed, but they might be accessible to other members of the household or other visitors,” he said.
Naloxone is available over the counter at pharmacies, and Jefferson County’s website provides a list of resources to help people become familiar with Naloxone and where to find it.
“I wish we could have a magic wand and just do away with fentanyl, but we don't,” Mullica said.
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