Colorado House Democrats Vote to Make Fentanyl Possession a Felony
These laws that make simple possession a felony apply a blunt instrument to an issue that requires surgical nuance.
Update: On Monday April 25, Colorado lawmakers in the House passed a controversial new bill that will harshly criminalize fentanyl possession by a 43-22 vote. We are re-sending this post about the bill with an updated introduction.
It’s easy to think that the drug war is winding down in a state like Colorado, where marijuana has been legal for a decade, and where Democrats control the governer’s office and both chambers of the legislature. But to think the drug war is over there is a big mistake. If a state with a Democratic stronghold like Colorado will cave to law enforcement lobbying groups and create new felony charges for simple drug possession, that’s sends a clear signal.
The big battle over this bill had to do with lowering the amount of fentanyl possession that triggered a felony charge. A 2019 law made possession of up to 4 grams of fentanyl a misdemeanor. The new bill lowered the felony threshold to just one gram. And that was the compromise position. Republicans wanted to lower the felony level to zero! Meaning being caught with any amount of fentanyl should automatically be a felony. Under pressure from law enforcement and Republicans, along with grieving families who are angry and want more punishment, House Democrats got on board.
Drug policy experts and sources on the ground in Colorado tell me that this will mean more drug users will be hit with felonies. That’s because the effects of illicit fentanyl—sold in powder or as pills—last a lot less longer than heroin. Illicit fentanyl is also cheaper. So a person with an addiction has to buy much more at once to avoid painful withdrawal symptoms, and use much more throughout the day. One gram of fentanyl equals roughly 10 pills, and my sources in Colorado say that people are smoking or injecting up to 20 pills per day just to stay well. That’s double the amount that will get them a felony.
These laws that make simple possession a felony apply a blunt instrument to an issue that requires surgical nuance. For instance, the felony law applies to those caught with any mixture of fentanyl. That means somebody could have a kilo of powdered sugar that contains .0001% of fentanyl and they would be charged with possessing a kilo of fentanyl. That’s absurd.
Based on fentanyl siezure data, the average batch of illicit fentanyl powder has a purity of roughly 10 percent. So when police say they siezed 92 pounds of fentanyl, that’s not really the case. At an average of 10 percent purity, that means they only siezed about 9 pounds. That’s a lot less fentanyl than 92 pounds and it surely won’t make a dent in the overall market supply, and surely it doesn’t make for splashy, attention-grabbing headlines.
The few Colorado Democrats who voted against this fentanyl criminalization bill did so on the grounds that they’ve seen this play out before. They look at states with felony penalties for drug possession and see that they have higher overdose death rates than Colorado. They’ve seen how handing out felonies to people with addiction makes their lives worse. Saddling people who have a medical condition with a criminal record exacerbates the life stressors that drive them to use substances in the first place. These lawmakers who voted no did so because harsh penalties aren’t going to reduce overdose deaths and save lives.
The bill now moves to the Senate, where it’s possible that more amendments and more changes will be enacted. I’ll keep following the legislative process and keep sending updates. The text below is the original post about the heated debate over the bill from two weeks ago.
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More than eight hours of wrenching testimony and heated debate took place in Colorado’s House Judiciary over a bill (HB22-1326) that aims to respond to a growing crisis of fentanyl overdose deaths. The bill is a mixed bag of harsh penalties and harm reduction. Parts of the bill would make it easier for prosecutors to charge dealers with homicide if their customer fatally overdoses. Other provisions include funding for naloxone, fentanyl test strips, and drug education.
Much of the debate centered on this problem: Cracking down on fentanyl dealers would also lead to crackdowns on fentanyl users.
"What we are trying to do with this bill is ensure that those who survive a fentanyl poisoning or overdose are not just thrown into incarceration," Rep. Leslie Herod (D - Denver) said.
Lisa Raville, of Denver’s Harm Reduction Action Center, testified, "If stigma, shame and criminalization worked, we would have ended this long ago."
Dr. Sarah Axelrath told lawmakers how this bill would hurt her patients: “Under this bill, many of my sickest patients will automatically be subject to level 4 or higher drug felonies. If they are arrested and incarcerated, they will have limited access to medical detoxification and evidence-based medication for opioid use disorder in Colorado jails and prisons.”
The new fentanyl bill contains well over a dozen provisions, but one in particular that drew strong disagreement has to do with the amount of fentanyl in possession that triggers a felony charge:
The bill makes the unlawful possession of any material, compound, mixture, or preparation that weighs more than 4 grams and contains any amount of fentanyl, [sic] carfentanal, or an analog thereof a level 4 drug felony.
Currently in Colorado, simple possession of less than four grams of fentanyl is a misdemeanor. The idea is that anyone who is caught in possession of less than four grams is probably not some kingpin drug trafficker, but a user who probably has an addiction, and as such, they shouldn’t be punished so harshly. But police officers and district attorneys think this is too lenient and they want to see any possession of fentanyl become a felony.
“This drug is so deadly that possession of any amount should have a felony consequence… This coalition will seek amendments to elevate ‘simple possession’ to a felony,” said a lobbying group of law enforcement leaders in a statement. “Colorado cannot afford to take small, incremental steps to address the fentanyl crisis.”
The issue of whether to make any fentanyl possession a felony was not settled during Tuesday’s marathon debate that ran into the wee hours of the morning. Democrats hold a solid majority in Colorado’s House of Representatives, and the bill’s architect, Democratic House Speaker Alec Garnett of Denver, has voiced opposition to locking people up for possession. It’s possible that Garnett would compromise and lower the felony threshold from four grams down to one gram.
“I have not seen any data to suggest that felonizing possession will bring the number of overdoses down,” Representative Jennifer Bacon, who leans to the left among Colorado Democrats, told The Denver Post. “There are two-dozen states that have felonized possession that have higher OD rates than we do.”
Rep. Bacon said that she is disappointed with how the fentanyl bill is evolving, and that she and the Black caucus would not support lowering the felony threshold.
The fierce debate over felonizing fentanyl possession shows that even in a state like Colorado, which is led by Democrats and has legalized marijuana, the drug war is far from over.
The question still looms: How can a crackdown on fentanyl work without spilling over into racist arrest disparities and locking up drug users struggling with addiction?
The difference between a felony and misdemeanor is big. A felony charge could result in two to four years in prison, plus a potential two year enhancement, including fines up to $500,000. Misdemeanors carry much lighter fines and much shorter prison sentences, and sometimes no prison time at all.
Some parents and family members whose loved ones died from fentanyl overdoses want to see fentanyl possession become a felony.
The video below is testimony by the sister of someone who died in a terrible tragedy: Friends seemingly thought they were snorting cocaine but the white powder turned out to be fentanyl. Five friends died because they were sold the wrong drug. She testified before lawmakers that she’d rather her sister be a felon than be dead, and that her sister did not have a drug problem, but was poisoned. “She was not a person who struggled with addiction,” the grieving sister said.
I hear this rhetoric a lot and it always rubs me the wrong way. What if her sister did have a drug problem? Does that mean she is somehow less deserving of our sympathy? These attempts to morally separate innocent recreational drug users from those who have an addiction end up stigmatizing a debilitating medical condition. The point here is that whether someone is addicted or not, fatal overdoses are preventable, and everyone should be treated with compassion and dignity.
I do have a follow up question to the sister’s wish to make fentanyl possession a felony:
How would giving her sister a felony prevent her from dying in the first place? Possession of cocaine is still illegal in Colorado. Possession of fentanyl is still illegal in Colorado. Being caught with either of these drugs still results in arrest and punishment. Criminal drug laws that make possession a felony have failed to prevent hundreds of thousands of deaths across America. As Representative Bacon said, states with harsh penalties and states with slightly less harsh penalties still have high overdose death rates.
Research shows that drug arrests, harsh prison sentences, and criminal laws don’t really have that much of an impact on drug use or overdose deaths at all. Cracking down on dealers might make people feel good, but it certainly hasn’t resulted in fewer overdose deaths, which are better thought of as structural policy failures rather than individual failures.
Throughout the many hours of debate, those who wished for stronger penalties and harsher sentences referred to fentanyl as a poison and to those who died as having been poisoned. By describing fentanyl as a poison, it follows that a dealer who sells fentanyl is the poisoner. Setting aside toxicology and medical examiner speak for a moment (because words like “poisoning” have specific medical meanings): Should people think of accidental fentanyl overdoses as poisonings? Should people consider fentanyl dealers as poisoning their customers?
“Most of these families said during testimony that their loved ones were poisoned because they unknowingly came into contact with fentanyl,” a local news reporter in Colorado said.
The logic of calling fentanyl a poison and deaths as poisonings flows right into harsh punishments like drug-induced homicide (also known as drug delivery resulting in death). Tana recently wrote for Substance about the harm these laws cause.
Historically, a crackdown on drug dealers has invariably led to crackdowns on drug users, because laws do not really separate the two as neatly as one might think. For over 50 years, America has deployed harsh criminal penalties against drugs and those punishments have not prevented the worst overdose crisis ever recorded in American history. Research consistently finds that criminal drug penalties have not curbed the drug supply, reduced drug consumption, or resulted in fewer overdose deaths.
But what about people who sell fentanyl as cocaine? Doesn’t that deception warrant some extra punishment?
This is a tougher question. It’s hard to know what’s really happening in these situations when people who want cocaine are sold fentanyl instead. There’s a few possible scenarios at play. Here is the worst case scenario that makes the argument for harsh punishment:
It could be true that a dealer badly needed money. When a customer called him or her up and asked for cocaine, the dealer only had fentanyl but said screw it, “I’ll just sell them this fentanyl and pocket the money.” In this case, the dealer knowingly deceived the customer and that’s a shitty thing to do, especially if people are cocaine users who have zero tolerance for opioids.
Is this possible? Sure. Has it happened? Maybe. But I don’t think it’s a widespread and common occurrence: If this hypothetical dealer knew literally anything about drugs, then they’d know that what they’re doing might kill people. And dealers know that kind of heat is bad for business. How do they benefit by killing off their customer base? Plus, if the people do survive, then the dealer will have a reputation for selling bunk cocaine that made them sleepy.
In the tragedy described by the grieving sister, we don’t yet know why the dealer sold fentanyl when they asked for cocaine.
As I’ve said a million times, the drug supply is thoroughly contaminated up and down. Based on the huge numbers of overdose deaths, it seems that fentanyl is entering the drug supply way high up in the supply chain, far above low-level street dealers who sell in small quantities. This means that both users and dealers are in the dark about what’s in their drugs. Unlike Canada and other European countries that have advanced drug checking operations, America has little real-time knowledge of what’s actually in the illegal drug supply.
Dealers may not even know what they’re selling anymore. According to a 2016 analysis by the U.S. Sentencing Commission, only 15 percent of those sentenced for trafficking fentanyl reported that they clearly knew they were selling fentanyl.
I know, I know, 2016 is a while ago. And are we really supposed to take people who sell drugs at their word for it? Regardless, this is an important point to dwell on because there is this notion that low-level street dealers are poisoners who intentionally lace their drugs with fentanyl. It’s much more plausible that the “lacing” is being done at a much bigger scale, several rungs above low-level dealers, who then get stuck trying to move these shitty synthetic drugs causing so many overdoses. Unless you’re a cartel boss, it’s a lose-lose situation all the way down.
Nobody asked for fentanyl to takeover, it started happening through an array of market and policy forces, and now it’s catching people on both ends off guard. We are in the middle of a mass casualty event caused by a contaminated drug supply.
I’m not saying that there aren’t bad drug dealers out there who intentionally lace their drugs. Of course there are. But there are also dealers who are just as trapped and just as unaware as the users are. Let’s grant that fentanyl is indeed a poison, and that people dying from overdoses have been poisoned. If the low-level dealer didn’t put the fentanyl there, and they didn’t do the lacing, then it doesn’t make sense to call them the poisoners and charge them with homicide and put them in prison for a 20 year mandatory minimum.
The contaminated drug is killing so many people. What’s happening is unconscionable. But this crisis is much bigger than a few low-level street dealers. All of them could be locked up and we’d still be left with an ultra contaminated and highly lethal drug supply.
This post has largely been about families and law enforcement who think fentanyl is a poison and that all drug dealers are murderers. I hope I’ve at least poked some holes and complicated the assumptions behind those positions. The world of drug use is shaded with infinite grays, and the line between user and dealer is much more blurry than we think.
To be sure, not everyone affected by an overdose takes on those positions. There are also grieving moms and dads and brothers and sisters who do not think that way. Their child or loved one died of an overdose and they don’t want retribution waged by a racist drug war. Instead, they want harm reduction tools and public health policies that they think will actually prevent more families from going through what they went through.
There are groups of parents like GRASP (Grief After a Substance Passing) and Broken No More that are against drug-induced homicide laws and punitive drug policies in general. Meet Laura Cash, who submitted a letter to lawmakers arguing against harsher drug penalties, excerpted below:
My name is Laura Cash. I am on the Board of Directors of the non-profit groups, BNM (Broken No More)/GRASP, (Grief Recovery After a Substance Passing) and Harm Reduction Ohio. GRASP has a Facebook page of over 13,000 grieving members and over 125 face to face grief groups who meet throughout the United States and Canada. I am also a mother whose son, Mark died unnecessarily of a heroin overdose on June 20th, 2014 after fighting with every thing he had to overcome his addiction. Many would assume I am a supporter of drug induced homicide laws but nothing could be further from the truth. Let’s be very clear, drug induced homicide laws are not preventing people from dying but are preventing them from calling 911 which does save lives. Overdose is a preventable tragedy but it is not murder.
Parents like Cash view overdoses as preventable. And when they think about how to prevent these tragedies, they don’t see tough love and years of incarceration saving lives. Instead, they see naloxone, overdose prevention sites, compassionate treatment, syringe programs, and better drug education. Cash continues:
If arresting people who use or provide drugs were the answer to prevent deaths, we would not have an overdose problem today. We must open our hearts and minds and employ strategies that will make a difference, not ones that cause harm. It is past time to stop the criminalization and punishment of those who have a substance use disorder. We know what will help save lives. Treating people with dignity and compassion while making these readily accessible and affordable: Naloxone access, syringe exchanges, safe injection facilities and maybe most importantly medication treatment.
The local news quoted at length police officers, district attorneys, and grieving families who want retribution. But we didn’t hear much from parents and others who think differently. We didn’t hear from parents like Laura Cash whose experience of loss leads them to argue firmly against the drug war.
Thankfully, harm reductionists and public health experts in Colorado like Dr. Sarah Axelrath and Lisa Raville were there to testify. They told lawmakers that more felonies and a more muscular drug war is not going to stop overdose deaths.
“My patients are the people targeted and most likely to be harmed by this bill,” Dr. Axelrath told lawmakers. “Due to high levels of opioid dependence, some of my patients may be in possession of more than 4 grams of fentanyl-containing pills, which they require for personal use simply to avoid agonizing withdrawal.”
“The distinction drawn by House Bill 1326 between people who use fentanyl and people who distribute fentanyl may be convenient for purposes of legislating crime and punishment but, clinically, it is artificial. In my world, they are the same people - reliant on a potent and unpredictable drug supply to avoid daily, debilitating illness.”
If harsh punishments and lengthier prison sentences really prevented more drug use and overdoses, then people with expertise might actually support it. They know that criminalization, tough love, and the threat of punishment doesn’t prevent the people they care for from dying.