Under the final version of the legislature’s much-debated and highly controversial bill to combat fentanyl, a person can be subject to a felony drug charge if they possess even a dusting of the lethal synthetic opioid, whether or not they realize that what they possess is indeed fentanyl.
But in an eleventh-hour change, the legislature agreed to an avenue by which such a person can turn that felony into a misdemeanor at trial. That avenue puts the burden on the defendant to prove they did not know they had fentanyl. A previous version put the burden on prosecutors.
“The burden of proof is still on the defendant, but there is a pathway,” said Lakewood Democrat Brittany Pettersen, a state senator and a sponsor of the bill, “that if you truly had no idea that you were buying fentanyl, there’s a process in place where you have the opportunity to prove your innocence. It’s a victim-centered approach.”
House Democrats feared that the bill, HB22-1326, would die in their chamber if they did not adopt this change, which is why they agreed to it.
The bill will head to the desk of Gov. Jared Polis to be signed into law — a foregone conclusion, as Polis long ago affirmed his support.
Lawmakers generally agree on many aspects of the bill, including investments in test strips and lifesaving opioid antagonists, expanded addiction treatment in jails and new criminal penalties for people found to have distributed a substance containing fentanyl if that substance kills someone else.
But the matter of how to punish possession of fentanyl was particularly controversial throughout the bill’s life — all the way up to the final minutes of the 2022 legislative session, which ended late Wednesday night.
The bill as introduced proposed no changes to possession law in this space, meaning that anyone with under 4 grams of fentanyl would be subject to no more than a misdemeanor for that crime. The bill’s lead sponsor, House Speaker Alec Garnett, said he knew all along that aspect of the bill would be changed amid opposition from law enforcement, Republicans and many Democrats. He felt he didn’t have the votes to preserve the law as is, even as he insisted repeatedly that Colorado must not criminalize people for simple drug possession.
Garnett faced tremendous pressure — including from the Democratic governor and attorney general, plus virtually all leading figures in Colorado law enforcement — to make it a felony to possess any amount of fentanyl, which is almost always found in compound form, mixed with other substances. He said he was unwilling to do that, but he made many concessions along the way.
The final version of the bill doesn’t make felony possession of any amount of fentanyl but rather possession of 1-4 grams of any substance containing any amount of fentanyl. Earlier versions called for that statute to be automatically repealed in 2025 — a wish-list item for progressives who want to reevaluate the bill in a few years. That auto-repeal was stripped out in the flurry of final changes before the end of the session.
The bill leaves the left distressed.
“I’m profoundly disappointed,” said doctor and addiction expert Sarah Axelrath, “that after weeks of testimony by medical and public health experts warning of the negative consequences of this bill, Colorado legislators doubled down to further criminalize and punish people struggling with addiction.
“We have 50 years of data demonstrating that harsher criminalization does nothing to reduce rates of drug use or overdose… (and) will lead to higher rates of incarceration, homelessness and fatal overdose in Colorado.”
A relatively small number of people caught in possession of 1-4 grams of fentanyl or fentanyl compound will ever go to trial. Lawmakers estimate it will be less than 5%, as most will take plea deals. The Denver Post spoke with several defense attorneys Wednesday who are cautiously optimistic that they will be able to argue their clients didn’t know they possessed fentanyl and thus get the charge reduced from a felony to a misdemeanor.
Republicans fear that outcome. State Sen. Bob Gardner, a Colorado Springs Republican and attorney, argued just before the Senate adjourned for the year that the final version of the bill will not disrupt the drug supply chain effectively and is insufficiently tough on fentanyl. He’s backed up in that sentiment by the vast majority of state Republican lawmakers. But Democrats control the Capitol and have much more leverage in this debate.
The bill exits the Capitol having unequivocally pleased almost no one. But many can find aspects of the bill they feel good about.
“Passing this bill was of critical importance to the state and all Coloradans,” said Tom Raynes, executive director of the Colorado District Attorneys’ Council. “This legislation presents an an unprecedented, multipronged assault on our fentanyl epidemic through a combination of harm reduction, enhanced treatment, education options and criminal enforcement provisions.”
Speaker Garnett said he is comfortable with the changed approach on felony possession Wednesday.
“It’s making sure that they have a chance to not get charged with a felony, and that’s important,” Garnett said.
In the final tallies taken Wednesday, 62 of 100 state lawmakers voted to pass the bill. The vote in the Senate was 27-8, and the vote in the House was 35-30.