After many hours of debate, including a narrow decision against adding a new felony charge for possession of any amount of fentanyl, the Colorado House voted to pass a bill meant to limit the spread of the lethal synthetic opioid fentanyl.
The bill, HB22-1326, relies heavily on tougher criminal penalties. It promises more severe charges for people who both use and sell fentanyl, which is most commonly found in compound forms mixed with filler or with other illegal drugs. It also promises to force people into mandatory drug treatment, and to fund harm-reduction tools like test strips and lifesaving Narcan and naloxone.
“We have to get this bill passed,” House Speaker and bill sponsor Alec Garnett, a Denver Democrat, told the chamber before the vote. The greatest failure of all is the failure to act when action is needed, and action is desperately needed. I know it’s not perfect, but please support House Bill 1326.”
Forty-two House members joined him in supporting the bill. Twenty opposed it. Most of the votes in favor came from Democrats and most opposing votes came from Republicans, but several members from both sides crossed over.
This bill will move next to the Colorado Senate. The dynamics there are different from those in the House; for one, Democrats have a much narrower advantage there, owning 20 of 35 seats. Further amendments are guaranteed, after more than 160 were introduced in the House. The first Senate vote is expected Tuesday in the Judiciary Committee.
It’s a highly controversial bill. Harm reduction and addiction experts, doctors and attorneys who work with people disproportionately likely to face criminal drug consequences have begged this legislature to resist further criminalization as a tool to fight fentanyl. Some in this camp find the bill well-meaning, but say it’s based on flawed assumptions about how to treat addiction and thwart drug use and sales. Many experts have testified that no matter how government leaders legislate, Colorado and the nation cannot arrest or incarcerate their way out of the fentanyl crisis, nor force healing among people who use the drug.
“You can lead a horse to water but you can’t make them drink,” said state Rep. Serena Gonzales-Gutierrez, a Denver Democrat, just before Monday’s House vote. “Unfortunately that’s what happens with this disease, with substance use disorder. You can set up all the things in place for somebody to get services, but until they’re ready to accept and internalize, you’re not going to see the success you think you would, by forcing them to be there.”
On the other side, law enforcement leaders, plus the governor and a lot of lawmakers, think the bill is not harsh enough. Republican lawmakers have brought repeated amendments to try to make it a felony to possess any amount of fentanyl. A bipartisan House coalition — mostly Democrats, plus a handful from the GOP — defeated one such amendment by a 34-29 vote on Friday.
State Rep. Alex Valdez, a Denver Democrat, was one of a half-dozen in his party to vote for an amendment to make possession of any fentanyl into a felony, before the House agreed to felonize possession at one gram or above, and only in cases in which someone knew or “reasonably” should have known they were in possession of fentanyl.
“We know the stuff is poison,” Valdez said. “We know this (bill) gives some tools, they’re good tools, but at the end of the day I’m going to do this because maybe some lives will be saved. Maybe I’ll have less chance of walking by a dead body in my neighborhood.”
One Republican who opposes blanket felonization for possession, former police officer Rep. Shane Sandridge of Colorado Springs, told his colleagues in a speech last week that criminal penalties aren’t the answer.
“This has been tried. Didn’t work. The data is clear on that,” he said.
Added Lakewood Democratic Rep. Chris Kennedy, “When you’re talking about people that are addicted to a substance,” deterrence from the threat of a felony charge “is not how it works.”
“You can hear from people on both sides of the aisle that they don’t think this is a perfect bill, and I understand that,” Garnett said. The bill, he added, is about “much more than possession,” which is the main thing dividing his caucus and the legislature.
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