DENVER – Colorado Gov. Jared Polis signed the bill Wednesday that makes it a felony for someone to possess a gram or more of a drug containing fentanyl, which also includes stiffer penalties for distribution and a host of addiction treatment and prevention services.
Polis signed HB22-1326 flanked by dozens of family members of Coloradans who died of fentanyl poisoning, organized by the group Blue Rising, which brought the families together to testify on the bill during the committee process.
The governor lauded lawmakers for passing a bill to do something to address the large rise in fentanyl-related poisoning deaths over the past couple of years, saying passing the measure, even if it was not perfect, was far more important than doing nothing.
“There are many families with us today who suffered the ultimate loss. There are thousands of other victims across the state,” Polis said. “Of course victims deserve justice, but they also deserve leaders who demonstrate they’re doing everything possible to prevent additional deaths from fentanyl poisoning.”
More than 900 people died of fentanyl poisoning in Colorado last year, up from 81 in 2017.
The bill, one of the most controversial and consequential of this year’s legislative session even according to the bill sponsors, was passed by lawmakers in the final two hours of the legislative session – going to a conference committee to decide where the cut-off point would be for the felony possession limits.
The conference committee settled on a compromise on the bill between the versions the House and Senate passed, creating a mechanism by which a person charged with and convicted of felony possession would be able to argue in court they did not know their drugs contained fentanyl.
A jury or judge could then decide whether or not they felt that was true, and could lower the conviction to a misdemeanor. If a person completes treatment, they could also see the felony moved to a misdemeanor.
The House’s measure had included language about a person “knowingly” possessing 1-4 grams of a drug compound containing fentanyl, while the Senate stripped that language out, setting up the last-minute conference committee.
The possession limits ended up being the most-discussed portion of the bill as it made its way through committees and each chamber, and as some Republicans tried to get the limit lowered to any amount of a compound containing fentanyl – efforts that failed. Harm reduction specialists and medical doctors who treat people with addiction had also been generally opposed to the bill because of the increased possession penalties, saying they were a move back to the war on drugs.
But the bill’s sponsors and the sister of one of the victims of the fatal fentanyl overdose involving five people in Commerce City in February said the other aspects of the measure involving addiction prevention and treatment, stronger and some new distribution penalties, better investigatory funding for law enforcement, and wider access to naloxone and testing strips, were just as key to passing the bill.
The bill strengthens distribution penalties for people who possess more than four grams of fentanyl, creates a new drug felony if a dealer sells a compound containing fentanyl which kills a person, and ups the drug felony levels for various distribution amounts.
The bill also puts millions in American Rescue Plan Act dollars toward residential treatment programs becoming a condition of probation, increases fentanyl education classes, increases the number of places people can get naloxone and testing strips, requires those resources be provided to people with substance abuse disorders when they are released from jail, and requires community corrections programs to treat people with addictions.
It would also put money toward other education and prevention campaigns, as well as funding for police departments, sheriff’s offices, and prosecutors to investigate fentanyl deaths and break up cartels and dealer rings.
Several of the sponsors, including House Speaker Alec Garnett, D-Denver, and Senate Assistant Minority Leader John Cooke, R-Greeley, said they had not worked on a bill as difficult or rewarding in their eight years at the state Capitol.
“The fact that we are standing here is a testament to the Colorado way, to the bipartisan leadership of the people standing here, to the voices of the families standing behind us,” Garnett said. “And I am proud to say this is the boldest, most comprehensive step forward to attack the fentanyl epidemic that this state has ever seen. And I believe states across the country will begin to follow.”
Sen. Brittany Pettersen, D-Lakewood, like the other sponsors, thanked the families of victims for their testimony on the bill.
“You all took some of the most difficult losses and heartbreak to go fight to ensure other families don’t have to go through the same thing,” she said.
Cooke said it was their testimony that “truly made a difference” when it came to how lawmakers voted – as Republicans and Democrats both supported and opposed the bill during final votes.
“I think it turned a lot of attention to the families and away from the parts of the bill that weren’t popular,” Cooke said. “…It does so many things, including $33 million for education and for treatment. We haven’t seen that kind of money going toward treatment, I think, in the history of Colorado.”
Feliz Sanchez-Garcia, whose sister, Karina Rodriguez, was one of five people who died of fentanyl poisoning in February in Commerce City, said the bill was “not just in honor of our loved ones, it’s for all those killed across Colorado and the country who have not had their voices heard.”
And even though several prosecutors supported the bill, including Brian Mason, Beth McCann, and Dan Rubinstein, a coalition of the County Sheriffs of Colorado, Colorado Association of Chiefs of Police, and Colorado Fraternal Order of Police said the final version “represents one of the largest missed opportunities of the 2022 session” despite having some portions they liked involving harm reduction.
The consortium said it preferred even stronger possession limits for a felony, questioned the final changes on lowering felonies to misdemeanors, and said those changes made it more difficult for police to send charges to prosecutors.
The group also said it had concerns about two years of medication-assisted treatment funding and how jails could continue to fund those mandates in the future.
“We call on lawmakers to address this unfunded mandate as quickly as possible to ensure that this harm-reduction provision in HB1326 is successful,” the group said.
