Updated 5/25/2022
After months of debate between policymakers, law enforcement, harm reduction groups and the families of people lost to fentanyl, Gov. Jared Polis signed Colorado's new “fentanyl accountability” bill at a ceremony at the state Capitol Wednesday.
The bill introduces tougher criminal penalties for the possession of a smaller amount of fentanyl, or other drugs laced with fentanyl. At the same time, reformers were able to win some new funding for treatment and other services.
The measure passed the legislature with the support of most Democrats and a small minority of Republicans. Many Republicans argued it didn’t go far enough to punish people involved with fentanyl, while some liberal Democrats warned it could help to restart a harmful “war on drugs” approach to addiction.
Here’s what’s the bill does:
Felony possession charges for more defendants
HB22-1326 lowers the amount of fentanyl eligible for a felony possession charge from four grams to one. That threshold applies to any mixtures containing fentanyl, including counterfeit pills that may contain only a few hundredths of a gram of the drug itself.
The new charge is the lowest tier of drug felony, also known as a DF4. It could result in up to six months in jail and two years of probation for first-time offenders. Unlike other felonies, judges won’t be allowed to send people convicted of possession to prison.
The charge also includes provisions that are meant to soften the effects of a possession felony: If defendants complete probation or court-ordered treatment, the charge will be reduced to a misdemeanor on their criminal records.
Because treatment is not equally available across the state, and since individual prosecutors and judges will have discretion over how to apply the felony, people in different communities might face vastly different consequences for fentanyl possession.
In a last-minute compromise, the bill allows defendants to try to prove they didn’t “knowingly” possess fentanyl, since the drug often is laced into other substances. To go this route, defendants would have to take their case to trial and present evidence that they were unaware of the fentanyl. A jury can then choose to reduce the conviction to a misdemeanor. In most cases, defendants do not opt to go to trial.
In Denver alone, about 380 people per year are expected to be charged with the new fentanyl felony, according to state analysts. The bill also includes harsher felony consequences for people caught dealing smaller amounts of fentanyl.
A new requirement: treatment in jails
The bill includes several changes to the treatment system. Perhaps the biggest: County jails will have to offer medication-assisted treatment by July 2023.
After people are arrested, jails will be required to assess them for substance-use disorder and officials may then prescribe medications like buprenorphine or methadone.
Those medications can reduce withdrawal symptoms — and studies have found that they can lower the chances of an overdose after a person is released.
Originally, the bill did not require jails to participate in the programs — it only provided money to help them do so if they chose. But lawmakers pushed to make treatment mandatory — a longtime goal for reformers like Sen. Brittany Pettersen, a sponsor.
“It’s devastating for me that when people come in contact with our system, with law enforcement, that they’re stigmatized even more, they don’t get the help they need,” said Democratic state Sen. Brittany Pettersen, a sponsor of the bill.
Money for treatment, but one major request left out
The bill adds $10 million for emergency treatment services. Cities and counties would be required to work with “managed service organizations” to provide crisis stabilization and detox. Democratic Rep. Jennifer Bacon was a driving force to get the money.
“All of our data shows that the most effective tool in helping people quit is voluntary treatment,” she said during a floor debate.
But the bill leaves a major request by substance-use treatment providers unfulfilled.
They wanted the state to dedicate several million dollars per year to increase the rates paid by Medicaid for addiction services. That reimbursement is typically about 20 percent lower than the rates paid for other behavioral health services, according to the Colorado Providers Association. The group argues that has contributed to a shortfall in treatment capacity in the state.
Pettersen said she supported increasing reimbursements but that this bill wasn’t the right way to do it; such rates are normally set through a different process.
“It was a pretty unorthodox way to increase provider rates,” she said. She urged treatment advocates to start preparing now for another effort next year.
“Build momentum together, organize early on for the money and work that we need, and to get better at voicing your coalition’s demands to help fill the significant gaps that we continue to see,” she said.
Additionally, the bill dedicates new money to harm reduction strategies:
- Nearly $20 million for distributing opiate antagonists, sometimes known as overdose reversal drugs, like Narcan
- $600,000 for testing strips to help users identify drugs laced with fentanyl
- $5 million for a three-year education campaign
Separately, lawmakers set aside $5 million to create treatment capacity for adolescents with substance addictions.
Daniel Darting, CEO of the managed care organization Signal, said that treatment providers are holding out hope for next year. They expect the state’s new Behavioral Health Administration will make substance use a priority.
“Everything I see is that this is an intentional and sincere priority to move forward,” he said.
Eyes on what’s next
The new bill requires Colorado to study several topics related to fentanyl, including the overall impact of the legislation; the online sale of opioids; and the specific effects of the new felony possession penalties.
The bill also encourages, but doesn’t require, local agencies to submit data to the state’s overdose tracking project.
The goal of collecting data on felony prosecutions in particular, said Rep. Leslie Herod, a Democrat, is so “we can ensure that we are not having adverse consequences or disproportionate impacts, especially on people of color or low-income people, as we've seen in the past.”
In future sessions, she said, lawmakers would focus “on the path toward true reform … not just prison. Prison can’t solve all of our society’s problems.”
