Amid calls to crack down on fentanyl, Colorado Democrats say they’re not quite ready

There appears to be unanimous agreement among state lawmakers, Attorney General Phil Weiser, Gov. Jared Polis, law enforcement, harm reduction experts and others about the need to better protect Coloradans from fentanyl, the drug accelerating the state’s crisis of overdose deaths.

At least 767 people died of fentanyl overdoses in Colorado in 2021, though delays in state data reporting mean the real number is likely higher. Even with three months of data incomplete, that’s a 42% increase from 2020. On Sunday, five people, all young adults no older than 32, died of suspected fentanyl overdoses in Commerce City.

“Everybody wants people to stop dying,” said Denver Democratic state Sen. Robert Rodriguez on Wednesday.

Yet 43 days into Colorado’s legislative session, no lawmaker has introduced a bill to address the fentanyl crisis.

On the state Senate floor Wednesday, Bob Gardner, the Republican state senator from Colorado Springs, excoriated his Democratic colleagues, who control the legislature, for not having produced a bill yet.

“I thought, in December and January, when the governor, the attorney and members of this chamber had news conferences and said we must do something about the fentanyl crisis, that surely within two or three weeks of convening we would see a bill, or bills, moving through the General Assembly to solve this problem,” Gardner said. “But here we are … and I hear that people meet and meet and meet, and yet nothing has happened. There is no bill introduced.”

He waved in his hand a drafted bill to toughen penalties on crimes related to fentanyl distribution and production, and said he’d go seek permission from chamber leadership to introduce it. This is not a typical way to get a bill moving, and Gardner’s move is unlikely to produce real legislation — but his point was made.

“Why was it not done in January?” he asked reporters after his speech.

The short answer is that the Democrats who hold majorities in this Capitol — and decide which bills live and die — aren’t yet certain what they want the bill to look like.

House Speaker Alec Garnett, a Denver Democrat, is leading these talks, acting as something of a project manager on a drafting process that he said has involved “hundreds” of hours of meetings among elected officials, police, prosecutors, defense attorneys and addiction experts.

His essential challenge, he said, is to write a policy that limits the distribution of this poison without landing users in jail.

Fentanyl is an extremely potent synthetic opioid — two milligrams of the substance can be fatal, according to the U.S. Drug Enforcement Administration. The opioid has been used legally as a painkiller, but the fentanyl causing hundreds of overdose deaths in Colorado is almost always illicitly created in unauthorized drug mills and sold illegally, according to law enforcement. The illicit fentanyl is cheaper to produce than other drugs and can be disguised and sold to unsuspecting customers who think they are buying cocaine, heroin or prescription painkillers, experts have said. For those knowingly using the substance, it is particularly addictive, dangerous and difficult to treat.

Garnett noted that Gardner and every other Colorado legislator, Democrat and Republican alike, have the right to introduce five bills per session and that, as of day 43, none had filed anything on the topic.

“I’m tired of everybody pointing fingers at each other, and I’m trying to drive a conversation to get at a true comprehensive solution to the best of the state’s ability to attack fentanyl and prevent people from dying,” Garnett said Wednesday.

He added, “We can do this in an innovative way. Putting addicts in jail isn’t a public policy solution that has been proven by the data over a long period of time.”

With the aspect of the bill concerning criminal penalties still not set, Garnett and others continue to workshop. He said a bill will “soon” be introduced but didn’t commit to a date.

Other parts of the bill should be much less complex. For one, lawmakers plan to expand access to Narcan, the lifesaving nasal spray that can act as an antidote for people overdosing on fentanyl, among other deadly drugs. Lawmakers also want to make fentanyl testing strips widely available throughout the state.

“At concert venues, in vending machines,” said Rep. Leslie Herod, a Denver Democrat who is also working on the policy.

Denver already has a program to send Narcan and test strips to people who request them.

“People who are accidentally ingesting this poison should not be considered felons if they survive the overdose that’s about to come to them,” Herod said. “What we need to look at is how we provide more resources for harm reduction and how we provide more resources to investigate and to throw the book at the actual high-level drug dealer that’s bringing in the fentanyl that people are using to cut the drugs and then sell.”

Herod, along with two Republicans and another Democrat, was a lead sponsor of a 2019 law to lessen penalties for drug possession. This law has been widely blamed, by Republicans, big-city mayors, and law enforcement officials in particular, for softening the state’s position on fentanyl and facilitating distribution and death.

The law, HB19-1263, didn’t drastically alter fentanyl penalties, however, nor stop police from seizing fentanyl or arresting people who possess or sell it.

Rather, it changed the possession of up to 4 grams of fentanyl and all other class II substances from a level four drug felony, the lowest level drug felony, to a level one drug misdemeanor. The maximum sentence between the misdemeanor and the felony differs by six months.

Under Colorado law, the presumptive sentence for a level four drug felony is between six months and one year in prison, with up to a year on parole. If there are aggravating factors — like being on probation or parole for another felony — the sentencing range is between one and two years in prison with up to one year of parole.

Level one drug misdemeanors are punishable by up to 180 days in jail and two years of probation. People with two previous level one drug misdemeanor convictions can be sentenced to up to a year in jail and people with four or more such convictions can be charged with a level four drug felony.

Prior to the law change, the average prison sentence for a level 4 drug felony was 4.8 months with an average of 9.6 months of subsequent parole, according to a fiscal analysis of the bill compiled by the nonpartisan Legislative Council Staff.

The 4-gram weight limit applies to pure and compound substances alike. That means 4 grams of pure fentanyl is treated the same as 4 grams of pills containing a few micrograms of fentanyl.

The Democrats brainstorming now on fentanyl policy are mostly not interested in just undoing portions of the 2019 law.

Meeting with reporters Tuesday, Garnett snapped at a television journalist who suggested, in a question about fentanyl, that Democrats are responsible for HB19-1263. In fact, that bill was bipartisan. Six Senate Republicans, including Minority Leader Chris Holbert, voted for it, and its lead sponsors included a Republican former cop and a Republican bail bondswoman.

Garnett told reporters that narratives, journalistic or otherwise, suggesting Democrats alone passed that bill are “getting to a point where it’s misleading the public.”

His counterpart in the state Senate, Boulder Democrat Steve Fenberg, said one reason his party is taking time to introduce a bill is that they don’t want to invite more of what they’ve already seen from Republicans.

“You could introduce a bill prematurely. I don’t think it’ll actually result in the bill passing sooner. I’d rather introduce a bill that has buy-in and can move through the process fairly quick,” he said. “The Republicans will politicize it if we drop a bill (prematurely). They will nitpick it.

“We want to make sure there’s buy-in and that we’re actually introducing the right policy so that, frankly, Republicans can’t make it a political football when we’re talking about such a sensitive topic and people dying. What Gardner did today, I think, is wrong.”

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