The bill to combat Colorado’s fentanyl crisis is being hammered by police, Republicans and some Democrats for not including stiffer criminal penalties, specifically for those who possess the drug. It’s also being criticized by progressives and harm reduction experts and advocates for relying too heavily on criminalization when handcuffs and jail cells have proven ineffective at treating drug addiction and stopping drug trade.
Now, just before the bill debuts for its first committee hearing at the Capitol Tuesday, it seems clear which side is more likely to get its way. Conversations with more than a dozen lawmakers, including almost all of the House Judiciary Committee, reveal the question is not whether progressives can succeed at removing criminalization from the bill, but whether they can hold the line against an upcoming push to make it a felony to possess fentanyl in any amount.
As written, the bill proposes an array of tougher criminal penalties and millions for fentanyl test strips and other harm-reduction tools. Notably absent from the criminality section of the bill is a change to a 2019 law that defelonized drug possession below four grams. Neither that policy nor the pending bill discriminate between includes pure fentanyl and compound mixtures — meaning that they regard someone in possession of fentanyl pills the same as someone in possession of cocaine that happens to contain a dusting of fentanyl.
Police chiefs and sheriffs have been pushing the bill’s architect, Democratic House Speaker Alec Garnett of Denver, to make possession of any amount of fentanyl a felony. He has all along said he doesn’t believe that’s a reasonable policy and that he does not want the state to lock people up for minor possession. He’s consistently characterized War on Drugs policies as failures.
But ahead of Tuesday’s committee hearing, lawmakers said Garnett is discussing with them to accept an amendment to reduce the possession threshold from four grams to one, with the caveat that the felony charge could apply only to those who knew they had fentanyl, or who should have known better. It’s unclear how, specifically, that caveat would be spelled out in law, but the basic idea, lawmakers said, is to exempt the many people who are unaware they have fentanyl in their possession.
“There has been a hyperfocus on the issue of possession,” Garnett told The Post in an interview Monday. “It has forced me to spend an enormous amount of time thinking about this particular issue, and what I’m trying to navigate this question of, essentially, a societal appetite for not felonizing personal use, … and this understanding that four grams of it is a lot.
“What I’m trying to figure out is how can we move forward in a way that allows the judicial system to continue to weigh these decisions on an individual basis, while at the same time recognizing that fentanyl is very, very dangerous.”
There are 11 members of the House Judiciary Committee, and five of them — Democratic Reps. Adrianne Benavidez, Lindsay Daugherty, Kerry Tipper and Dylan Roberts, and Republican Rep. Mike Lynch, Garnett’s cosponsor — told The Post they would vote for this amendment.
Though Lynch’s name is on the bill, he feels possession in any amount should be a felony, and said Monday he’ll vote for the one-gram amendment because it’s closer to zero than the current policy is.
The committee chair, Democratic Rep. Mike Weissman, said he’s undecided, and two progressive Democratic members of the committee, Reps. Steven Woodrow and Jennifer Bacon, said they oppose felony penalties for possession. The remaining members, Republican Reps. Terri Carver, Matt Soper and Stephanie Luck, are expected to seek to lower the threshold for felony possession to zero.
“You can absolutely expect” an amendment on those lines, Carver told The Post Monday.
Woodrow said he’ll miss Tuesday’s hearing as he prepares for surgery. Garnett has the power to appoint his replacement, which means it’s likely there will be a majority on the committee willing to pass an amendment reducing the threshold for felony possession from four grams to one, should such an amendment surface. If it doesn’t, it would be discussed once the bill leaves committee and moves to a vote of the entire House of Representatives.
Garnett said he doesn’t believe this amendment will win over the police.
“They’re 100% opposed,” he said. “It doesn’t move them at all.”
But he and others are hoping it makes for some degree of compromise with that side on the most hotly contested aspect of one of the most hotly contested policies of the 2022 legislative session. If Democrats don’t come up with some kind of change to the possession threshold, then it’s possible an amendment to bring the threshold to zero could pass instead.
Several lawmakers told The Post they think there are at least 33 votes in the 65-member House — controlled 41-24 by Democrats — to approve such an amendment, and the four-grams-to-one proposal is an attempt to thwart that outcome. The partisan margin is even narrower in the Senate, where Democrats have a 20-15 edge and where the bill would head after the House.
Bacon, perhaps the leftmost member of the House Judiciary Committee, said she’s disappointed in how this bill looks now and in how it’s evolving.
“I have not seen any data to suggest that felonizing possession will bring the number of overdoses down,” Bacon said. “There are two-dozen states that have felonized possession that have higher OD rates than we do.
“What we do know is what happens when we felonize possession. It means more people in jail, more people to contend with the criminal justice system. We know it’s going to have a disproportionate impact (by race), which is why myself and other members of the Black caucus have said we will not support zero or one” as the gram threshold for a felony.
Tuesday’s hearing is sure to run for many hours, possibly close to or beyond midnight. Possession won’t be the only subject of amendments; Garnett said he’s working on other changes, including a requirement that the state study data and outcomes of this bill and a plan to increase the amount of money in the bill dedicated to harm-reduction tools like fentanyl test strips and lifesaving Narcan and naloxone.
The speaker has staked his political reputation on an ability to bring diverse perspectives together and build consensus. He is aware that may not be possible this time.
“The people who want to always criminalize drugs and the people who want to have clean drug supplies and no limitations on drug use have been in the trenches fighting each other for 30 years. Both of them say my way is the only way,” he said. “What I’m trying to figure out is a way to help move Colorado forward to help save lives.”
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