Fentanyl bill may do more harm than good

It would be great if Colorado could rehab its way out of the fentanyl crisis, which kills more people ages 18-45 than any other cause — guns, car crashes, heart disease, cancer, etc. We cannot rehab our way out because fentanyl is so deadly in small doses that few of its victims will be identified as users or addicts in time to save them from death.

The Colorado Legislature passed a last-minute fentanyl reform bill Wednesday night that rightly funds more rehab but does little if anything to take fentanyl out of circulation. In fact, prosecutors tell us House Bill 1326 makes it harder to prosecute those possessing enough to kill thousands. This is a poison, not a drug, but we will treat it less seriously than cocaine.

Colorado’s rate of increase in fentanyl overdoses trails only Alaska’s. Our death rate will continue to soar because Rep. Shane Sandridge, R- Colorado Springs, wrote House Bill 1263 in 2019 to dramatically lower penalties for fentanyl and all other Schedule 1 and 2 drugs.

Democrats swooned over the Sandridge brainchild and helped him roll out the red carpet for fentanyl dealers. Predictably, fentanyl deaths began soaring the moment this law took effect.

“The bill that the Colorado Legislature passed (1326) is wholly inadequate to address this critical problem that is resulting in the death of far too many Coloradans,” said Colorado Springs Mayor John Suthers — a former district attorney, U.S. attorney, state corrections director and state’s attorney general.

Suthers said the bill, which Gov. Jared Polis plans to sign, makes fentanyl harder to prosecute than any other drug — despite the fact it is far more lethal. The bill establishes an easy defense for defendants who claim they didn’t know the drug was fentanyl.

“The Legislature, in almost every instance, is protecting the defendant from felony prosecution,” Suthers said.

That’s an enormous problem because it makes Colorado more attractive to fentanyl profiteers far and wide than the law this ostensibly improves. We have spoken with drug dealers. They say Colorado drug laws attract fentanyl dealers.

“Every one of my associates at the time (2019) knew the lesson (of HB 1263) was to carry less than four. If we need to take more than four, there’s four people in the car, everyone carries 4 grams,” said Colorado drug addict and former fentanyl dealer Marshall Weaver, in an interview with Colorado Politics.

Weaver said the Sandridge bill made possession a “slap on the wrist” and “we’re going home.”

“The stark reality remains that someone in Colorado can possess enough fentanyl to kill hundreds of people and avoid serious consequences by merely asserting they didn’t know it was fentanyl,” Suthers said of the new bill.

The mayor wants Polis to veto HB 1326 and call for a special session. As of noon Thursday, others were joining his appeal.

Fourth Judicial District Attorney Michael Allen, who serves Colorado Springs and the surrounding area, issued a statement asking for a veto and special session. George Brauchler, the former district attorney of the Douglas County-based 18th Judicial District and the man who convicted the Aurora theater mass killer, told The Gazette’s editorial board he recommends a veto and special session.

Former Second Judicial District (Denver) prosecutor and prosecutor of the year Mitch Morrissey wants a veto and special session, as does 18th Judicial District Attorney John Kellner, the Republican candidate for attorney general. These are just a few we reached out to; others are likely to join them.

Allen points to multiple flaws with HB 1326:

• A dealer who kills with fentanyl will be immune from prosecution if the dealer calls the police and cooperates with the investigation.

• Drug dealers who kill with less than 4 grams of fentanyl and are convicted in court will be probation eligible. (Two milligrams of fentanyl can kill an adult).

• The bill provides protection to low-level drug dealers and users who claim they did not know they possessed fentanyl.

• Possessing 1-4 grams of fentanyl will be harder to prosecute than any other illicit substance, despite fentanyl being the deadliest on our streets.

The Gazette editorial board spoke with Polis and House Speaker Alec Garnett on Wednesday about these concerns.

We asked the governor to consider a veto and special session. He ruled out a veto, saying he believes Suthers and Allen are wrong and the bill will reduce the death toll. He insists it gives prosecutors more ability to prosecute drug dealers and shut down fentanyl pill mills.

Polis said he would sign the bill and remain open to calling a special session if he sees at least three House members change their positions. The governor called later in the day to reiterate this commitment, so advocates of a more sensible bill should find three members to persuade.

Colorado just sent a message to fentanyl dealers everywhere. They know the rewards of dealing are high. Thursday, they knew Colorado had no intention of substantially raising their risks — which were and will remain the lowest in the country.

We hope Polis is right and the death toll declines, but it’s hard to see how we will get that result without a better bill. The governor could have and should have led his party to send him a better bill.

Having failed at this, he can and should call for a special session to improve it — whether he vetoes HB 1326. By doing so, he could improve his legacy and political prospects. More importantly, he would save lives.