GUEST COLUMN: Fentanyl crisis needs stronger legislation

Colorado is in the midst of an epidemic, and the fight against fentanyl is truly life and death.

Since 2015, Colorado has suffered 1,578 fentanyl deaths — a number equivalent to the enrollment at Denver South High School — and amounts to a staggering 1,008% increase. Since 2019, the increase in fentanyl deaths in Colorado has outstripped every state except Alaska — surging 382% during that time. Nationally, overdose deaths from opioids exceeds homicides by 307%. In 2021 alone, more than 800 Coloradans lost their lives to fentanyl.

The Centers for Disease Control recently announced that fentanyl is the leading cause of death among adults aged 18 to 45. The U.S. Drug Enforcement Agency reports that nearly half of counterfeit pills they tested contain a lethal dose of fentanyl, and Colorado has seen a 403% increase in the number of pounds of fentanyl seized between 2017 and 2021 on Colorado highways.

Unfortunately, the bill introduced fails to meet the moment. Fentanyl is flooding into our state and the number of Coloradans dying from this poison is growing exponentially. This bill will not change either of those facts.

As the elected district attorneys serving nearly a third of Coloradans, we’ve seen the devastation caused by fentanyl. We’ve worked closely with our state and federal law enforcement partners to disrupt and dismantle drug trafficking organizations who bring fentanyl and other illicit drugs into our communities. With that experience and background, we can confidently say that the bill put before the Legislature is not enough to turn the tide on Colorado’s fentanyl epidemic for three key reasons.

First, it does not treat fentanyl like the incredibly dangerous drug that it is. In 2019, Governor Polis signed a bill into law that lowered possession of 4 grams or less of fentanyl from a felony to a misdemeanor. Every year since Polis touched his pen to paper on that fateful day, Colorado has seen fentanyl overdose deaths double. This bill does nothing to reverse that horrific mistake. Under this proposed new law, fentanyl possession of up to 4 grams — an amount sufficient to kill 2,000 people — will remain a misdemeanor.

Second, for the first time in Colorado history, the bill extends what the drafters call a “Good Samaritan” immunity to drug dealers. The immunity created by this bill enables a dealer to sell fentanyl to someone who then dies from an overdose to avoid prosecution so long as they report the incident and “cooperate” with the investigation. This broad immunity is not an abstract concept — it has real consequences that will protect dealers who peddle this poison.

Third, despite bipartisan support to the contrary, this bill fails to materially increase penalties on dealers whose poison ends up killing someone. Rather than creating a sentence enhancer for dealing drugs that kill, it ties such enhancers to the amount of the drug sold. Under this bill, selling less than 4 grams of poison that kills someone is still a probation eligible offense. Whether their victim dies from 2 milligrams of fentanyl or 5 grams, the penalty should be a mandatory prison sentence. Anything less devalues the life lost.

Most Coloradans are familiar with two recent fentanyl horrors that the gaps in this bill and the immunity it creates would only make worse. Only a month ago, five people in Commerce City were killed by a dealer who provided them with less than 4 grams of fentanyl. In Colorado Springs, a dealer sold less than 4 grams of fentanyl to three high school students, killing one of them and hospitalizing the other two. Under the provisions of this bill, both drug dealers would be immune from prosecution if they had called the police to report the overdoses and cooperated with authorities. After answering a few questions, they would be free to go and would never spend even one night in jail for the lives they took and the drugs they sold. In fact, neither dealer would face more than a misdemeanor if they had been caught in possession before selling the poison that killed those six people.

Colorado’s Legislature has waited too long to address this frightening epidemic. While some aspects of the bill are helpful — including increased funding for education and tools for DAs to implement treatment options rather than imprisonment for addicts — it is a far cry from the legislation we need to address Colorado’s significant fentanyl crises. Coloradans deserve more.

Michael Allen is the district attorney for Colorado’s 4th Judicial District in El Paso County. John Kellner is the district attorney for the 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties.

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