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Colorado Law Making Lethal Doses Of Fentanyl A Misdemeanor Blamed for Fentanyl Crisis

DENVER (CBS4) - The deaths of five people in Commerce City, allegedly from fentanyl, has renewed calls by police and prosecutors to change a state law that makes possession of four grams or less of most drugs a misdemeanor. The law applies to hard drugs like cocaine, heroin, meth and fentanyl.

Many district attorneys begged lawmakers to carve out fentanyl when they passed the law in 2019 saying two milligrams of fentanyl can kill you and four grams is equal to 13,000 deadly doses.

As CBS4 reported at the time, they refused. Representatives Leslie Herod and Shane Sandridge, sponsors of the law, still stand behind it.

"Many District Attorneys need to start doing their job. It's always been a felony to sell this poison to our community. The DAs need to do the work, stop looking for the easy plea, go to court, get the conviction, and put these dealers away for a long time. Very similar to people pushing new gun regulation laws. How about you start using the laws you have before asking for new ones," said Sandridge.

RELATED: Names Of The 5 People Who Died In Commerce City Released, Fentanyl Use Suspected

Tom Raynes, Executive Director of the Colorado District Attorneys' Council says while lawmakers may have had good intentions, the law was a mistake.

"True leaders know when to admit mistakes and correct that. That time is here and the laws need to reflect the lessons learned over the last two years. Many legislators on both sides of the aisle want to see responsible changes to the law this session to deal with the death and destruction fentanyl is causing in our communities. Failure to support such needed legislation is complicity in the ongoing crisis caused by this poison," Raynes said.

Denver Police Chief Paul Pazen says last year's record number of overdose deaths backs up the need for a change in law. In 2019, he says Denver recorded about 200 drug overdose deaths.

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Last year, he says, that number more than doubled and, he says, lawmakers bear some responsibility after making possession of lethal doses of fentanyl a misdemeanor.

"The effort was to try to help people. The effect is people are dying."

He says the law makes it difficult to hold their killers responsible. Dealers, he says, purposefully carry just under four grams to avoid felony charges.

Because fentanyl is often mixed with other drugs, Boulder District Attorney Michael Dougherty says, proving a dealer knew what they were selling is difficult.

"... to figure out who is responsible for that death is incredibly important. We need more resources for law enforcement, and we need those resources now."

Tristan Gorman with the Colorado Criminal Defense Bar says most dealers are addicts, and they don't respond to a war on drugs.

"Arrests, prosecution and incarceration do not save lives."

She says increasing penalties will make people who use drugs reluctant to get help.

"You increase the penalties on fentanyl, you're actually increasing the penalties on any drug containing any amount of fentanyl whether the user knows it's in there or not. So we need  to be funding harm reduction, prevention, treatment."

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Dougherty agrees that more treatment is needed, saying Colorado ranks in the bottom ten states for funding of treatment, but he says more accountability is also needed. He's charged a dealer in connection with a fentanyl death in Lafayette with manslaughter but says he could get probation if convicted.

"We have to acknowledge that small amounts of fentanyl are killing people. We have to account for that in laws and penalties that we have."

Under the current law, Pazen says, there's no incentive for defendants to agree to treatment.

"You need some leverage, some form of consequence to get people the help they need."

Some lawmakers plan to bring a bill to provide more funding for overdose investigations and a public awareness campaign. Speaker Alec Garnett says he is also working on legislation to increase penalties.

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