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Home » Brauchler: Make the possession fentanyl a felony – The Denver Post

Brauchler: Make the possession fentanyl a felony – The Denver Post

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More than 180 Coloradans — an average of at least two per day — have passed away from a fentanyl overdose since the beginning of the 2022 General Assembly 90 days ago, including five people in Adams County, two teens in Highlands Ranch, and a toddler.
And our legislators have not yet passed a single law to address the unabated death count, despite having broken the system in 2019.
In 2019, over the objection of prosecutors and law enforcement, a bipartisan group of legislators passed — and Gov. Jared Polis signed without hesitation — the decriminalization of the possession small amounts of drugs including fentanyl by making it a misdemeanor.
Each year since then, the number of fentanyl deaths has doubled. The prevailing view at the time, and the one that continues to cripple the legislature from fixing the obvious and now demonstrated mistake, is that Colorado should not be felonizing or imprisoning people merely for addiction. Of course, that is not what was happening at the time, but our legislature has long now been driven more by anecdote than reality, by emotion more than facts.
To be clear: nobody is in prison for a single conviction of possessing useable amounts of drugs, even if they had used those drugs during their sentencing hearing in front of the judge.
The law before the legislature broke it provided both a carrot and a stick to incentivize addicts to engage in rehabilitation, therapy and recovery. Because possession of fentanyl and other dangerous drugs was a felony, law enforcement could arrest addicts and remove them from the environment that fed their addiction and risked their lives via overdose.
The addict would then have a court-imposed bond with court-imposed conditions to abstain from illegal drug use, monitored sobriety, and even participate in drug treatment. Before the legislature changed the law, someone convicted of felony possession of fentanyl or any other controlled substance could have that conviction automatically converted to a mere misdemeanor by successfully completing court-ordered treatment. That is called incentive.
As well, each jurisdiction in the metro area had its own drug court, designed to provide intensive resources and addict-focused treatment. The stick to encourage addicts to volunteer and stick with such a challenging program is the ability to avoid incarceration. Once Polis and the legislature permanently reduced fentanyl to a misdemeanor, those tools — those incentives — disappeared overnight. Drug courts have been devastated.
Currently, under significant pressure to stem the tide of fentanyl deaths, the legislature has proposed “fix it” legislation that — amazingly — does not reclassify possession of the deadliest drug to hit our community in decades as a felony. Instead, the legislation proposes increased funding for treatment and therapy — good stuff — but ineffective unless addicts are compelled and incentivized to participate. With a felony class charge, that process can happen immediately with bond conditions that follow an arrest.
With a misdemeanor there is no arrest. No bond. No bond conditions. No monitored sobriety or treatment. Instead, the “non-violent’ addict will be given the equivalent of a traffic ticket and released back to the fentanyl-laced streets to continue drug roulette and likely skip their court date. They will skip again and again and if they survive to come to court, their public defender will insist on a plea bargain from the already reduced misdemeanor, with even fewer consequences. The system facilitates addiction, rather than discourages it.
The portions of the proposed bill that seemingly increase the penalties on fentanyl dealers only do so if those drug dealers can be tied to deaths their drugs cause. That is so difficult to prove. There are only a handful of cases in the state to which this law would apply. Bizarrely — inexplicably — the level of accountability for killing someone with fentanyl is tied not to the death or even the number of deaths, but the quantity of fentanyl the poison pusher has on them. Under the legislature’s bill, a drug dealer who possesses up to 4 grams of fentanyl — enough to kill 2,000 Coloradans — and actually kills all 2,000 Coloradans would be probation-eligible.
That is crazy.
As the legislature continues its turtle-like pace to address this growing life-or-death issue this coming Tuesday, they owe it to Coloradans — including the growing number of people facing addiction — to do something that will make an impact. Unbreak the law.
Make possession of any amount of life-taking fentanyl a felony. For those who deal illegal drugs — any illegal drugs— that kill, there must be the promise of prison. Deterrence, hopefully. Accountability, definitely.
Colorado cannot wait one more day (two more deaths).
George Brauchler is a former district attorney from the 18th Judicial District in Aurora and is a regular columnist for The Denver Post.
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