In March 2020, a new Colorado law went into effect that removed felony penalties for simple possession of hard drugs – making possession of personal use amounts of drugs like heroin, methamphetamine, cocaine, LSD, and fentanyl a misdemeanor rather than felony drug offense.
However, this law has now been rolled back specifically regarding the synthetic opioids like fentanyl in response to a statewide and national surge in overdose deaths. Highly potent synthetic opioids like fentanyl — which is 50 times stronger than heroin — can easily cause overdoses even in miniscule amounts, especially when they are used to “cut” other drugs and the user is unaware of their presence. Colorado had over 900 deaths due to fentanyl overdoses in 2021, a massive increase over previous years.
In response to this crisis, the Colorado legislature passed HB-1326. Under the new law, as of July 1, 2022, possession a personal use amount (1-4 grams) of fentanyl, carfentanil, benzimidazole or any analog – that is substances that have slightly different chemical structures but the same effect – now once again carries a felony drug offense penalty. Possession of less than one gram remains a misdemeanor drug offense unless it is a 4th offense in a lifetime.
The law also attempts to address the complexities of the overdose crisis, in particular that many people who possess powerful synthetic opioids such as fentanyl did not actually intend to buy that particular drug but unwittingly bought another drug that had been “cut.” Drug dealers will cut other substances with fentanyl because it can be cheaply obtained in the United States and its potency means that it only a very small amount is needed, making it easy to hide, transport, conceal, and smuggle as needed.
The law has both a proverbial carrot and stick in this aspect: if a person can reasonably show they made a mistake and did not know the substance was fentanyl, the penalties drop back down to a misdemeanor, but if the substance is shown by chemical analysis to be more than 60% fentanyl, they are facing an even higher level of drug felony.
Finally, the law increases penalties for those who distribute synthetic opioids or other drugs cut with synthetic opioids. Dealers caught with over 50 grams of a controlled substance that is cut with a synthetic opioid face a Drug Felony 1, which carries a significant mandatory minimum prison sentence. Smaller amounts have increase penalties as well. Furthermore, any person that distributes synthetic opioids that cause an overdose death is subject to the mandatory minimum prison sentence for a Drug Felony 1.
An essential component of the bill requires drug treatment for those convicted of related crimes. County jails are also required to provide treatment with medication combined with ongoing withdrawal management. In addition, nearly 20 million will go towards bulk-purchasing naloxone, an overdose reversal medication.
Not everyone is on board. Advocates, public health experts, and harm reduction workers raised concerns the bill is a step backwards and a knee-jerk reaction to crisis by lawmakers that have quickly forgotten how ineffective the “war on drugs” and criminalization of addiction has been in actually combatting drug problems in society. They argued that while mandated treatment as part of the justice system often has little if any impact on addiction, the bill will bring more addicts into the justice system and burden them with felony convictions that will impact their ability to gain gainful employment and stable housing, which are far more important in breaking the cycle of addition.
And because most people who will be penalized under the new law – even those charged with distribution—are addicts, the law serves primarily to punish the victims of the crisis it is seeking to cure.