Fentanyl bill shouldn’t criminalize addiction

The bill to restore felony penalties for the possession of relatively small quantities ( when considering physical weight not killing power) of fentanyl is an incredibly challenging and nuanced piece of public policy.

Write the bill too harshly, and doctors and addiction counselors say the war on drugs will return. The outcome will punish people with severe addiction instead of the bad guys who bring this dangerous drug to our streets.

Write the bill too forgiving, and police and prosecutors say savvy criminals will avoid meaningful repercussions for their dangerous and selfish actions. Drug dealers will carry just under the trigger weight for a felony or use the legal defense that they didn’t know it was fentanyl.

Meanwhile, Coloradans are dying.

If you take nothing else away from this editorial, please talk to your loved ones, especially teens, about the dangers of fentanyl. The drug is now ubiquitous in the market tainting even pills that look like pharmaceutical created opioids. Our children are dying. No pill or drug is safe. People facing addiction need support and treatment.

Lawmakers made a mistake in 2019 when they reduced the penalty for possession of small amounts of many common street drugs, including fentanyl, to a misdemeanor. Fentanyl is not any drug. A small amount of fentanyl is enough to kill hundreds of people and a gram of pure fentanyl would almost certainly indicate an intent to distribute.

Fentanyl must be treated differently.

But how do we also not lock up addicts who have a gram of drugs for personal use that contain trace amounts of fentanyl?

Colorado’s lawmakers are understandably torn by this conundrum. Long debates have stretched for hours into the early morning light. The bill’s bipartisan sponsors — Rep. Alec Garnett, Rep. Mike

Lynch, Sen. Brittany Pettersen, and Sen. John Cooke — have shown a willingness to listen and compromise.

The Denver Post editorial board comes down on the side of the bill sponsors on this issue. They are urging their colleagues to not allow people who didn’t know that fentanyl was in their drugs to be charged with a felony.

Prosecutors are not wrong about their concerns. Without the amendment, it is possible that a dealer would be able to avoid felony charges if the prosecutor doesn’t have direct evidence of knowledge that the drug was fentanyl. The amendment took out “knowingly” from the bill.

However, we find it more likely that users, people in the depths of addiction desperate for their next fix, will be caught up inadvertently in a punishing criminal justice system. America has been down this road before, and we know that locking up drug users does not stem the flow of drugs, nor does it provide the users with the treatment they need to recover. America’s justice system should default to “innocent until proven guilty,” even during a public health crisis that is being manufactured by criminals.

We hope lawmakers will take House Bill 1326 back to the pre- amended version as it was introduced in the Senate.

The 2022 Colorado General Assembly is about to convene for the year, and we are grateful to the lawmakers who have spent long days and late nights trying to solve Colorado’s problems. If only our nation’s Capitol operated under such genuine good faith principles.