Fentanyl possession a misdemeanor in Colorado. Will this change?

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A bipartisan bill passed in 2019 with near unanimous support made most possession of fentanyl a crime. Will Colorado change course?

DENVER (KDVR) — The apparent overdose deaths of five people in Commerce City has Colorado lawmakers discussing whether to toughen penalties for possession and distribution of fentanyl.

Whoever supplied the drugs that killed five people in an apartment on Sunday is unlikely to be charged with murder. Proving murder requires showing an intent to kill, Adams County District Attorney Brian Mason told FOX31. That means manslaughter charges could be the most he could file – if he ever identifies a suspect.

“But it’s not strong enough, and it’s not enough of a deterrent to these drug dealers,” Mason said.

Mason said he was more interested in holding drug dealers accountable than drug users, particularly in a case where five people died with no idea their narcotics were likely mixed with fentanyl.

“I don’t want to lock up someone who uses drugs and has a small amount of drugs that they use to feed their addiction. I want to ask them for help,” Mason said.

That thinking was part of the motivation for House Bill 1263, passed in 2019 with near-unanimous support from Democrats and Republicans alike.

The measure reduced drug possession of 4 grams or less of most drugs – including cocaine, heroin, methamphetamine and fentanyl – from a felony to a misdemeanor.

Several Colorado prosecutors, including Mason, have said that when it comes to fentanyl, 4 grams is still too much.

“2 milligrams is a lethal dose, so 4 grams of fentanyl could potentially kill over a thousand people. It’s a problem, and it’s clearly more than a crime,” Mason said.

Rep. Leslie Herod (D) sponsored HB 19-1263 with Rep. Shane Sandridge (R) and told FOX31 she isn’t convinced that reducing many drug possessions to misdemeanors is a mistake.

Herod said the goal is to craft laws that provide treatment and recovery for drug addicts while providing jail for dealers.

“We have to deal with the dealers who supply this deadly drug to our community, and we have to throw the book at them. We need to allow people who want treatment access to treatment so that they don’t die from this poison,” Herod said.

House Speaker Alec Garnett (D) said anyone would be wrong to politicize the 2019 bill passed with bipartisan support.

“There’s a lot of work going on on fentanyl and there will be more on this soon,” Garnett said in a virtual call with reporters Tuesday morning.

On Tuesday afternoon, State Senator Barbara Kirkmeyer (right) released a statement calling on her colleagues to reverse the 2019 bill that decriminalized many cases of fentanyl.

“Since 2019, in just two short years, Colorado has had the second-fastest growth rate in fentanyl deaths in the nation. We went from 147 deaths in 2019 to 709 deaths in 2021, an increase of 382%,” Kirkmeyer said.

“I call on my fellow lawmakers, anyone who wants to right this wrong, please join me. Let’s work together, get overdue bill status, recriminalize fentanyl, and put the safety of Coloradans first,” a she declared.

A spokesperson for Governor Jared Polis released the following statement:

“The Governor looks forward to working with the Legislature on a thoughtful package on how we can reduce fentanyl abuse and deaths, including increased penalties. Saving lives is not a partisan issue, which is why the Governor’s comprehensive public safety plan has the support of district attorneys, community and law enforcement officials.

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