Increasing criminal penalties for fentanyl had zero impact on overdose deaths in Colorado and accomplished nothing good. That’s the result of a study commissioned by the state itself to research outcomes of a law that refelonized fentanyl possession charges.
In 2022, Colorado lawmakers took a step that they claimed would help reduce overdose deaths involving synthetic opioids like fentanyl. The legislature and Governor Jared Polis (D) signed off on a bill to create harsher criminal penalties. Possession of 1-4 grams of any substance containing fentanyl would now be charged as a Level 4 felony, when it was previously a misdemeanor. Anyone convicted would also be mandated to undergo a substance use disorder assessment, and possibly court-ordered treatment.
The bill did also include harm reduction measures, such as $19.7 million in funding for distribution of naloxone and fentanyl test strips, and increased mental health services. Another $3 million in funding went towards expanding opioid treatment in correctional facilities. However, the criminal penalties took effect in July 2022—a year before any money was distributed for these services.
“I was not surprised by the fact that overdose did not decrease, and stayed the same or increased for certain populations.”
The state required a study assessing the efficacy of this new law, and commissioned a team including researchers from the University of Colorado School of Medicine and Kaiser Permanente Colorado Institute for Health Research. Their research, published in January, looked at changes from 2018-2024 and found no correlation between increased felony charges and reduced overdose deaths.
“I was not surprised by the fact that overdose did not decrease, and stayed the same or increased for certain populations,” one it its co-authors, Cole Jurecka, MPH, a senior research services professional at Colorado School of Medicine, told Filter.
Other benefits the law’s proponents had anticipated did not materialize either. The researchers looked into whether the law made people more likely to seek medications for opioid use disorder like buprenorphine, or more likely to stay on such medications.
“The most surprising finding for me,” Jurecka said, “was that retention on certain medications for opioid use disorder did not increase—in fact, [it] decreased for methadone—given the fact there were some small provisions in the law that would in theory help people access these drugs more easily. That was not the case.”
Beginning in 2018, there was an overall increase in people starting buprenorphine treatment in Colorado, but that trend wasn’t affected by the new law, the researchers found. Regarding methadone treatment, there was no change in initiation—but a decrease in people continuing treatment after the law took effect.
Felonization’s lack of impact on overdose deaths was in line with Jurecka’s expectations, he said, due to prior scientific literature which “tells me that increasing criminal penalties does not improve health outcomes.”
“There was money spent on expanding services, but it’s hard to disentangle from the criminal penalties. Pairing these together is a catalyst of fear for people who would need access.”
Reflecting on the overall outcomes of the Colorado research, Jurecka noted that the felony penalties and increased treatment funding are policies that are at odds with each other.
“There are two things at play,” he said. “There was money spent on expanding these services, but it’s hard to disentangle from the criminal penalties. Pairing these together is a catalyst of fear for people who would need to access these services. Imagine someone who needs these medications, but is afraid of punishment. That’s why I don’t think there was any real change.”
However, the authors were unable to demonstrate that the decrease in people continuing methadone treatment after the law took effect was caused by the law itself. “Caution is urged in interpreting these results as the methadone data does not include observations of all patients receiving methadone treatment and reporting standards changed for methadone clinics during the study period,” they wrote.
There was no significant change in overdose rates associated with the law over the time period studied, although there was a major spike during the COVID-19 pandemic. The researchers found that non-Hispanic Black residents had higher overdose rates in four of the 16 months following the law’s passage, compared with the equivalent prior period. But again, they stated that they couldn’t conclude this was because of the law.
Looking at the law’s criminal-legal impact, the researchers found that totals of opioid possession-related convictions actually stayed consistent between 2020-2024, even in the severity of charges increased. The demographics most subjected to these convictions were, in order, Black, Hispanic and white residents. The authors did not find data on how many people were diverted from prison or jail to court-mandated treatment.
“Community members across the spectrum of experiences, including law enforcement professionals, perceived fentanyl possession criminal penalties to be misguided.”
And in speaking with 31 policymakers, peer support specialists, police and health care providers, the researchers found that these stakeholders were not happy with how the goals of reducing overdose and expanding treatment were being pursued.
“The qualitative analyses suggest that community members across the spectrum of experiences, including law enforcement professionals, perceived fentanyl possession criminal penalties to be misguided,” they wrote, “and that expanding services including medications, other treatment services, and diversion options would be more likely to reduce overdose rates.”
“Participants largely discussed [the bill as having] been driven by emotional responses rather than empirical evidence,” they continued. “While the policy was initially aimed at penalizing those distributing fentanyl, which participants largely agreed this policy should focus on, in practice, the policy continued to target people who use drugs and people engaging in subsistence level drug distribution.”
Some years prior, Colorado lawmakers had taken a different approach to drug use. In 2019, they approved a measure to reduce penalties for possession of many substances (up to 4 grams) to a misdemeanor. That included fentanyl as well as cocaine, heroin and methamphetamine. Sales and distribution charges remained felonies.
But politicians soon began to attack this limited reform. Lawmakers initially advanced the current law after a tragedy in which five people died of apparent fentanyl-involved overdose at an apartment complex in Commerce City. Numerous politicians, including Governor Polis, endorsed repealing the 2019 defelonization for fentanyl. The resulting refelonization law was a compromise of sorts—some Republicans wanted to go much further by imposing 250year mandatory minimum sentences and classifying fentanyl as a “weapon of mass destruction.”
Harm reduction advocates blasted the repeal effort. “They keep wanting to incarcerate folks and that has never worked,” Lisa Raville, executive director of the Harm Reduction Action Center in Denver, told Filter at the time. “All that has done is drive use underground. We are in a public health emergency that demands a public health approach.”
Months after the law took effect, Kevin Franciotti reported for Filter on consequences which included police treating drug users more aggressively, community organizations fearful that distributing fentanyl test strips could implicate people, and individuals scared to call 911 in case of an overdose.
Jurecka noted that Colorado saw a small decrease in overdose deaths in 2024, according to CDC data, yet groups including Black and Indigenous residents continue to face increasing overdose rates. He urged lawmakers to embrace a public health approach.
“Expanding access to treatment works,” Jurecka said. “We have so much evidence that confirms the efficacy of medications for opioid use disorder—but it must be disentangled from increasing criminal penalties. Our 50-year history with the War on Drugs [shows] these do not improve health outcomes.”
Image of Colorado State University police by Alex Smith used via Flickr/public domain.
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