Fentanyl and the Republican Attack on the Right to a Jury Trial
Many Republicans pretend to care about the Bill of Rights—except when it comes to the drug war.
In my recent article, “Why Colorado Should Not Refelonize Fentanyl Possession,” I discussed one of the problems with the effort to reintroduce felony penalties for possession of under four grams of fentanyl: Prosecutors say they want to bust dealers, but they don’t want to be bothered with meeting the legal burden of proving that someone distributed the drug to others. This violates due process (in fact if not according to the courts).
Drug warriors also seek to undermine the promise of the Sixth Amendment, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .” In discussing the effort to lower the quantity threshold for felony charges, Denver Post reporter Elise Schmelzer noted:
Some DAs [district attorneys] say they need the felony charge as leverage in plea deals. That’s similar to an argument we heard when Colorado lawmakers were trying to abolish the death penalty.
Here is the problem: When legislators empower district attorneys to threaten criminal defendants with extraordinarily unjust overpunishment should they go to trial and lose, that profoundly erodes Sixth Amendment protections (as well as Eighth Amendment protections against “cruel and unusual punishments”). In my view, such practices very obviously and directly violate the Sixth Amendment, although many judges refuse to admit the obvious. Not that judicial corruption excuses prosecutorial corruption. Clark Neily discusses the general problem.
Thankfully, the legislature did abolish the death penalty in Colorado despite the argument about plea bargains. As I wrote at the time:
Jury trials don’t exist for our convenience. Republicans take seriously the Constitution’s principles about the free exercise of religion and the right to keep and bear arms; they should take equally seriously the principles about punishments and jury trials.
John Kellner, the district attorney for the 18th Judicial District and now the Republican candidate for Attorney General (against incumbent Phil Weiser), explicitly admits that his office does not typically pursue harsh felony penalties for drug possession when it is able to. What, then, is the purpose of having those penalties at hand? Obviously it is to coerce criminal defendants into surrendering their right to a jury trial. Kellner writes (April 13):
For those saying that felony drug possession leads to mass incarceration, here are some facts: Using 2019 data (before [the governor and the legislature] decriminalized [sic] possession of drugs like heroin, meth, fentanyl), only 1.46% of felony possession cases in the 18th had prison sentences. That’s 11 cases out of 756. In all 11 the prison sentence was driven by something else, like committing another felony while on probation or a parole revocation for another crime. We’ve made a lot of progress in the justice system over the years, especially in how we handle drug cases. In the 18th we have a drug diversion program and specialty courts for addiction. The vast majority of drug cases result in sentences centered on treatment and rehab.
As I explained in my previous article, calling the creation of misdemeanor criminal penalties “decriminalization” is . . . let’s just say misleading.
On April 20 I asked Kellner:
Please clarify: Are you saying you [your office] went ahead and stuck the person with a felony record for drug possession, despite the light sentence, or are you saying you let the person plead to a misdemeanor?
Kellner (graciously) replied:
Typical felony drug possession cases resulted in misdemeanor pleas with treatment and probation. Or deferred judgments where if they completed treatment and stayed clean the case was dismissed.
As a prosecutor, then, Kellner wants to be able to threaten people with a felony conviction for drug possession, but typically he does not want to actually follow through on that threat. Instead, he wants to use the threat of severe penalties as leverage to coerce a plea bargain. And that, precisely, is the problem at hand. (Kellner joined the 18th in 2013 to work cold cases and started as DA in 2021. He sounds sympathetic to the practices of his office prior to his leadership.)
That said, Kellner does get partial moral credit for not wanting to subject most drug abusers who end up in “the system” to severely unjust overpunishment.
Meanwhile, we can wonder why hacks such as GOP chair Kristi Burton Brown, who continuously screams about Weiser’s alleged soft-on-crime stance and who demands that all fentanyl possession be a felony, is at the same time so tolerant of Kellner wanting to take it so easy (relatively speaking) on drug abusers by backing away from tough felony penalties when available.
An aside: Kellner is a very strong candidate whose work I respect in most ways. Given Weiser also called for felony penalties for any level of possession, I’ll likely vote for Kellner, given his other policy stances.
The Bill of Rights is among the most (maybe the most) profoundly pro-liberty legal document ever produced. The right to due process matters. The right to a jury trial matters. The right to be free from cruel and unusual punishments matters. These embody core principles of a just and free society. Prosecutors should not abuse these rights just because the courts let them get away with it. They have a moral and a legal responsibility to respect and protect people’s rights. The felonization of drug possession (in general and in the case of fentanyl) violates at least the spirit of the Bill of Rights in the ways discussed. I think it also very obviously violates the letter.
An Update on Bill 1326
Previously I discussed bill 1326. As introduced, the bill did not affect criminal penalties for possession, but only for distribution. Schmelzer and Alex Burness offer the update:
Colorado lawmakers made their bill to combat fentanyl more punishing by approving an amendment to make possession of more than a gram of the deadly synthetic opioid a felony. . . .
The amendment includes the caveat the charges could apply only to anyone who “knew or reasonably should have known” they possessed fentanyl, and it does not discriminate between possession of pure fentanyl and drug mixtures that contain fentanyl. Current law sets the felony threshold at four grams, and this amendment means the bill now proposes to treat someone who has one gram of pure fentanyl the same as someone whose one gram of Xanax or cocaine is laced with a mere dusting of fentanyl.
As Schmeltzer points out, how the “reasonably should have known” provision will work in practice is tricky. As I understand things, virtually any drug a person gets illegally has a good chance of containing fentanyl.
As Schmelzer and Burness suggest, one reason for the trace-amount provision is that there is apparently no good way to determine how much fentanyl a given portion of drugs contains. I don’t know the details, but apparently it’s easy to tell if some portion of drugs contains fentanyl but hard to tell how much fentanyl it contains. So there’s no easy way to adjust for the quantity of pure fentanyl when it’s mixed (as it almost always is) with other drugs.
Despite the trace-amount provision, setting the bar at a gram at least is marginally less-bad than setting it at zero. But a gram is a very small amount; as I noted previously, a quarter weighs about 5.7 grams. So a great many cases of fentanyl possession will again become a (potential) felony, should the legislation proceed.
Various parties continue to debate the bill and negotiate its provisions. Colorado Politics reports:
Law enforcement advocates are pursuing a compromise to make possession of any amount of fentanyl a felony but allow for the expungement of the criminal record upon completion of certain programs, such as drug treatment or diversion.
This group, too, wants prosecutors to be able to threaten people with a felony conviction but doesn’t actually want to saddle drug abusers with a felony record in most cases.
Meanwhile, conscious of the profound harm that saddling someone with a felony record does to the person, legislators in other ways are looking to seal records of various felony convictions after a set number of years.
As originally drafted, recall, the fentanyl bill covers distribution. Alex Burness reports (April 20):
Nonpartisan legislative staff has released an updated fiscal analysis for Colorado’s fentanyl bill, now factoring in the felony possession amendment. Staff projects the bill adds 152 more felony possession cases per year, and projects $8.7M needed for increased prison space.
I haven’t read the details on the assumptions behind these numbers.
Reply to the Gazette
Here is how an April 15 editorial from the Gazette begins:
It’s the leading killer of people 18-45. It kills instantly. Fentanyl should be a major crime deterred by felony charges.
By making it a minor crime with a careless new law in 2019, Colorado became the red-carpet state for fentanyl dealers. The law reduced to a misdemeanor the possession of 4 grams or less. That’s more than enough to deal. It’s enough to kill more than 2,000 people.
As shown by the scientific research of Golden-based economist Tim Reichert, Colorado’s lenient drug law has caused—yes, caused—the deaths of nearly 700. The law correlates with a 529% increase in fentanyl deaths. (See the Perspective Section on Sunday for a detailed report.)
This editorial dishonestly conflates possession of fentanyl with the dealing of fentanyl. If someone is dealing fentanyl, then all prosecutors need do is prove that fact to make a felony stick. Somehow the Gazette considers it absolutely outrageous that prosecutors might have to actually prove in a court of law that someone committed an actual harm to others.
The claim that four grams of pure fentanyl is “enough to kill 2,000 people” is probably an exaggeration, as I previously discussed (although fentanyl really is very potent and, in an uncontrolled setting, extremely dangerous). As a practical matter, fentanyl possessed in small quantities almost always is mixed with other drugs. The legislation at hand imposes felony penalties for possession of over a gram of any drug that contains even a trace of fentanyl.
The Gazette here also fails to mention here that, oh, by the way, Reichert, in addition to being a “Golden-based economist” (as a part of a consulting business), also is a Republican candidate for Congress. That doesn’t mean his numbers are wrong, but it is a detail that goes to his motives. Why leave it out?
But let’s move on to Reichert’s claims. . . .
Reply to Reichert
When we read Reichert’s April 17 op-ed, we find that he did not perform the “scientific research” himself. Reichert writes:
A friend of mine is a statistician and demographer. His name is Dr. Stephen Cranney. I asked him, along with a few other colleagues, to collect data on fentanyl deaths in Colorado and surrounding states. I then asked him to perform an analysis of the effect of House Bill 19-1263 on fentanyl deaths in Colorado.
Cranney is a serious data analyst who works at the Catholic University of America. However, it is safe to say that Reichert and Cranney started their project already knowing roughly the results they were looking for and (in Reichert’s case) already intending to use those results for partisan political ends. Again, that doesn’t mean the numbers of wrong, but we should approach them with initial skepticism. (Is Cranney converting this work into a journal article or something where it can be peer-reviewed?)
Here is what Reichert reports:
Dr. Cranney did this using a state-of-the-art econometric method called “difference in differences” [which has been used for decades]. This methodology is designed to do two things. First, it determines whether one thing caused another—in this case whether House Bill 19-1263 caused deaths in Colorado. Second, it identifies the number of deaths caused (if any).
Dr. Cranney’s analysis establishes two things. First, as a statistical matter, we can say with an extremely high level of confidence that HB 19-1263 did in fact cause deaths in Colorado. We can say this both because of the statistical tests that Dr. Cranney performed, and because his result is confirmed using two different data sets and several different statistical models.
Second, we can also quantify, with an extremely high level of confidence, the number of deaths that HB 19-1263 caused. That number is between 600 and 700 deaths.
I don’t have the raw data that Cranney used or the statistical models that he ran. (He’s welcome to send me the files.) But I think there are good reasons at the outset to be skeptical of Cranney’s findings. Reichert can express all the “extreme” confidence he wants, but the results depend on the quality of the model, and lots of statistically significant findings turn out not to hold up on review. At any rate, the interpretation of statistical modeling hardly is as straightforward as Reichert implies; for example, as Reichert no doubt knows, economists have been sparing over the effects of minimum wage laws for years. Here are my specific concerns:
Minneapolis police killed George Floyd in 2020, and Aurora police killed Elijah McClain in 2019, resulting in widespread protests (including in Denver and Aurora), other police reforms, extreme scrutiny of police work, and internal changes in policing. Aurora, Denver, and Boulder police departments all have suffered staffing shortages. It seems plausible that changes in police practices completely unrelated to the law in question probably explain a lot more than the law does (and perhaps the entire result). Does Cranney’s modeling adequately take into account all those other important changes?
The pandemic broke in the U.S. in early 2020, and clearly that had a large impact on many people’s emotional state. Does Cranney’s modeling adequately take into account how the pandemic impacted different regions?
The housing market in Colorado is crazy, and very-high housing costs are associated with higher rates of homelessness and risks thereof. Does Cranney’s modeling adequately take into account those trends?
What happened to other trends in drug and alcohol use? Can the law in question really explain the rise specifically in fentanyl-related deaths?
In what ways did prosecutorial conduct change specifically in response to the law in question? As Kellner’s remarks indicate, just because prosecutors can hang a felony around someone’s neck doesn’t mean they are inclined to do so. Does Cranney’s modeling account for the on-the-ground impacts of the law?
Regardless of the details of the causes, Colorado clearly has a serious problem with fentanyl. Some combination of problems is causing it. But the one-dimensional (and politically self-serving) focus on the one law is unhelpful.
The Department of Health estimates that Colorado suffered 540 fentanyl deaths in 2020 and 803 in 2021, for a total of 1,343. The Criminal Justice Reform Coalition reminds us the law in question took effect in March of 2020. I don’t know whether Cranney is using data extending into 2022. Apparently, though, he’s saying that this one law is responsible for maybe half of Colorado’s fentanyl deaths. That’s implausible on its face. The world is complicated. A lot of crazy things have been going on since 2019. Drug abuse is complicated. I doubt that most causal drug users even knew about the change in the law, and the law did not pertain to drug dealers. I think it far more likely that Cranney’s modeling is incomplete.
Even if it turns out that the 2019 law helped drive up fentanyl abuse and related deaths, would that be a reason to impose harsh felony penalties (or the threat thereof) for possession now? No.
Here is a simple test for Kellner and Reichert: Would they repeal the Fourth Amendment, with its protections against warrantless searches, given that doing so almost certainly would cut crime and save lives? I hope their answer is no. In a free and just society, we do not unleash government to violate people’s rights in the name of public safety. Instead, we figure out how to keep people safe, consistent with the protection of people’s rights.
Notably, Republicans do not generally say that government should violate people’s rights to keep and bear arms in the name of public safety. Instead, Republicans almost always say that government should leave peaceable people alone and go after only people who violate others’ rights. (There is no reasonable argument that the mere possession of fentanyl or any other drug violates anyone’s rights, as I’ve discussed previously.)
With respect to fentanyl, Republicans should not in the name of public safety violate people’s rights as codified in the Fifth, Sixth, and Eighth Amendments.
What should they do instead? As I’ve argued, people who knowingly or negligently distribute inherently dangerous drugs (because they fraudulently contain fentanyl or contain a dose of unknown potency) do violate others’ rights. Government rightly holds those people accountable.
At the same time, given that drug prohibition causes almost all fentanyl-related deaths (because actors in the prohibition-induced black market often supply drugs that are fraudulently labeled, tainted, or of unknown dose), government should repeal drug prohibition. Of course Kellner and Reichert won’t consider that.
Given the status quo of prohibition, we should look to a number of other strategies (including some relayed by Elise Schmelzer): educate the public about the dangers of fentanyl; get people off the streets and into housing (a complex topic); and make more readily available treatment for drug addiction, fentanyl test strips, and the overdose treatment Naloxone (Narcan). I certainly don’t have the full solution ready at hand. But the moral solution is not to threaten to lock drug abusers in a cage and saddle them with a felony record.
Polis’s Misstep
There’s nothing that softens up a Democrat’s spine quite like the charge of being “soft on crime” during an election year.
Ryan Warner reports:
Comparing fentanyl to the poison anthrax, [Governor Jared Polis] says “I’m for felonizing any possession of fentanyl. It’s deadly.” He doesn't think criminal penalties alone will make the problem go away.
Of course former DA George Brauchler applauded Polis for his remarks.
Chase Woodruff replied:
It’s unclear from his comments here whether Polis grasps the basic fact that fentanyl is a synthetic opioid used by people with opioid use disorder (and hospitals!)—very dangerous because of its high potency but plainly not a “poison” or comparable to anthrax. Absolutely wild!
Former Speaker of the House Terrance Carroll replied:
I have a great deal of respect for [Polis] but here he is absolutely wrong. I’ve personally seen the impact of drug policy used [as] a sledgehammer and not scalpel. This fentanyl crisis can’t be fixed through over-criminalization.
I’m with Carroll.
Update on Alcohol Deaths
In my previous article I mentioned alcohol-related deaths. I wrote that, despite rising alcohol-related deaths nationwide, “no one is suggesting that government relaunch alcohol prohibition or ramp up punishments of any kind for the sale or possession of alcohol.”
Now we have Colorado-specific numbers at least for 2020, from the Denver Post:
Colorado’s alcohol-related deaths increased by about 27% in the first year of the pandemic, from 2,405 deaths in 2019 to 3,051 in 2020, according to a study by researchers at the National Institute on Alcohol Abuse and Alcoholism. . . . The increase in Colorado is roughly in line with the national average. . . . All states recorded an increase in alcohol-related deaths in 2020, ranging from 11% in Delaware to more than 50% in Mississippi.
Again, the focus on one (reasonable) law pertaining to one drug is unhelpful.