The Consequences of Colorado’s Fentanyl Refelonization

    In the context of the drug war, Colorado is best known for pioneering a number of high-profile reforms. In 2012, Colorado and Washington became the first two states to legalize cannabis for adult use. In 2019, Denver became the first US city to decriminalize psilocybin-containing mushrooms. This November, a statewide ballot measure, Proposition 122, offers voters the chance to decriminalize possession, use, cultivation and transportation of plant-derived psychedelics, in a model that would legalize access to these substances through licensed “healing centers.”

    But drug policy reform advocates have long known that once victories are achieved, they can’t simply move on to the next step forward. Effective implementation of reforms requires careful monitoring, for one thing. What’s more, there’s always the chance that their opponents will succeed in pushing policies back in the opposite direction. 

    This reality has been starkly illustrated by Colorado’s recent fentanyl law. 

    In 2019, state lawmakers took action at a time when many Western states had only begun to feel the impacts of fentanyl overtaking heroin in the unregulated opioid market. The resulting bill, HB 19-1263, took effect in March 2020. Encouragingly, it made possession of up to 4 grams of most drugs classified as Schedule I or Schedule II (including fentanyl) a misdemeanor rather than a felony, reducing criminal penalties. “We cannot incarcerate ourselves out of addiction,” said State Rep. Leslie Herod (D), one of the bill’s sponsors, at the time.

    Despite these major factors, the 2019 law was scapegoated as the primary contributor to the unprecedented surge in overdose deaths.

    At that point, Colorado had yet to see a spike in fentanyl-involved deaths on the scale that would follow. But rates had been rising, and the earlier experiences of the East Coast and other regions suggested that worse would come. The implementation of HB 19-1263 also coincided with the onset of the COVID-19 pandemic, with its well documented threats to people who use drugs. Added to that were chronic issues like the underfunding of harm reduction services, and the failure of Denver and other cities to meaningfully address the needs of unhoused people. 

    Despite these major factors, the 2019 law was scapegoated as the primary contributor to the unprecedented surge in overdose deaths that Colorado, along with many other states, suffered in 2020 and 2021. 

    “Some politicians and commentators have claimed HB19-1263 created or worsened the overdose crisis in Colorado,” noted a March 2022 briefing from Colorado Criminal Justice Reform Coalition and the Harm Reduction Action Center (HRAC) in Denver, “but the state’s overdose death rate began rising in 1999 and started to spike in 2016, when simple drug possession was still a felony.”

    Regardless, political momentum to crack down on fentanyl and people who sold it soon hardened. “Fentanyl dealers are killers, and the law should treat them as such,” said State Senator Barb Kirkmeyer (R), in calling for HB 19-1263 to be reversed.  

    During the summer 2022 legislative session, the Fentanyl Accountability and Prevention bill (HB 22-1326), which sought to escalate penalties for possession, distribution and deaths involving illicit fentanyl, passed with little opposition from elected leaders. Unlike the 2019 law, which was intended as a blanket reform to felony possession of most drugs, not just fentanyl, the new bill was in direct response to the rising overdose rates and seizures—issues that law enforcement insisted needed to be addressed by lowering the felony threshold to 1 gram of any fentanyl-containing mixture.   

    The opposition that was voiced came largely from the public, during legislative committee meetings, in op-eds, and from across the spectrum of public health experts and direct service providers. But it was almost entirely ignored by legislators. 

    “It felt like I was in the twilight zone.”

    Although funding provisions were included to increase the availability of naloxone, fentanyl test strips, and drug education and awareness campaigns, advocates pleaded in vain that the criminalizing components offset the good, because criminalization is both inherently harmful and a huge barrier to harm reduction access.  

    “It felt like I was in the twilight zone,” Ruth Kanatser told Filter of the passage of the new law. Kanatser has worked at HRAC—which conducts direct harm reduction services, community engagement and advocacy—for nearly 20 years. She has spent untold hours educating elected officials on which policies and services actually work for people who use drugs such as fentanyl. 

    “The committee meetings almost broke me,” she said. “I thought to myself, how am I going to still do this? I can’t know whether to trust my allies in the legislature anymore.”

    She referred to Rep. Herod—who sponsored both the 2019 reform and the 2022 re-felonization bill, and whose district in Denver includes many constituents served by HRAC—and House Speaker Alec Garnett (D), who also sponsored the refelonization bill, as two of the most disappointing former allies. 

    It’s too soon to empirically evaluate, at a data level, the impact of fentanyl refelonization in Colorado on measures like overdose deaths, incarceration rates or service delivery obstacles. But based on the drug war’s history, many already know what to expect. 

    Markie, a person served by HRAC, said that because of the message the new law sends, a change has already been noticeable in terms of relationships with police. “I’ve seen cops I’ve known over the years, and they’re just more irritable, harsh, and honestly I think afraid by the stuff they’ve heard [about fentanyl],” she told Filter.

    “They became really aggressive, pulling us out of the car, threatening us, and accusing us of being dealers.”

    Billy, another HRAC participant, described being involved in a traffic stop after the law passed. It started off routinely, they told Filter, but quickly changed when the officers learned there was fentanyl in the car. “They started treating us like we were awful people. They became really aggressive, pulling us out of the car, threatening us, and accusing us of being dealers.”

    Lisa Raville, HRAC’s executive director, additionally described Colorado’s “Good Samaritan” law, which grants limited immunity from prosecution to people who call 911 during an overdose, as “basically being nullified” by the refelonization of fentanyl. Some of HRAC’s participants said they would still call 911, but just one person being afraid to do so could cost a life.

    The newest wave of regressive drug policy efforts sweeping the nation in response to fentanyl include all of prohibition’s greatest hits, like long mandatory minimums, expanded prosecutorial power, and felony weight cutoffs measured by quantity of street drug, not pure compound. But the national resurgence of drug-induced homicide laws is a specific threat with particularly cruel implications for its targets—often friends or loved ones of people who died, with whom they may have shared their drugs.

    During the passage of Colorado’s new law, intense discussion revolved around one provision of HB 22-1326 that law enforcement claimed would make overdose cases difficult to prosecute. The provision was intended to give some protection from the harshest penalties when a person was unaware that a substance they sold or shared with someone who later overdosed contained fentanyl. Despite some members of law enforcement conceding that there should be some tolerance for those situations, police nonetheless advocated for an amendment to remove the provision. In a compromise, the committee ultimately decided to amend the provision to allow for a defendant to present an argument to a jury that they were unaware of fentanyl’s presence.

    The disastrous backward step is all the more heartbreaking given the slow progress that preceded it.

    In some quarters, awareness of the new law seems to be lagging behind the threats. At the Rocky Mountain Symposium on Addictive Disorders, a regional treatment industry conference chock-full of local organizations which I attended on August 5-7, almost none of the outreach representatives I spoke with had even heard of the bill’s passage, or knew about the changes to the law. 

    However, one representative of a community-based nonprofit, requesting anonymity, shared her concern that passing out fentanyl test strips would risk setting someone up for a drug-induced homicide charge, by indicating that they knew of the presence of fentanyl in their sample.

    On International Overdose Awareness day, the day after I visited HRAC, an annual gathering was held at the center, where community members distributed free harm reduction resources, shared a pancake brunch and mourned the lives of lost loved ones.

    People who use drugs and harm reduction providers are all too used to draconian, harmful and racist drug policy. The disastrous backward step in the legislature is all the more heartbreaking given the slow progress that preceded it. But it will only increase their determination to continue the community and mutual aid efforts on which so many rely. 

     


     

    Photograph of a fentanyl-containing substance courtesy of Kastalia Medrano

    • Kevin is a psychotherapist, harm reduction advocate and writer based in Denver.

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