Why Colorado Should Not Refelonize Fentanyl Possession

Despite the frequent deadliness of the drug fentanyl, the Colorado legislature should not increase penalties for possession from a misdemeanor to a felony. Doing so would be unjust and counterproductive.

What Is Fentanyl

Fentanyl is a highly potent synthetic opioid sold legally for anesthesia and pain management. When sold in the black market created by drug prohibition, fentanyl often is sold in unlisted and unknown doses and laced, often without disclosure, with other drugs, including heroin, cocaine, and methamphetamines. Hence, because drug users often have little idea what they are taking, and because fentanyl is so potent, the drug can be deadly in a a nonmedical context.

Background on Bill 1263

In 2019, the Colorado legislature passed, and the governor signed, House Bill 1263, which makes possession of “any material, compound, mixture, or preparation that contains not more than four grams of” various “schedule I” and “schedule II” drugs, including fentanyl, a “level 1 drug misdemeanor” rather than a “level 4 drug felony.” (Exception: The “fourth or subsequent offense” remains a felony.)

By comparison, a U.S. quarter-dollar weighs about 5.7 grams; the following photo shows a quarter next to various gram weights.

Despite the frequent misstatements of various Republicans (including the chair of the state GOP), the bill does not “decriminalize” possession of fentanyl. A misdemeanor is a criminal matter. True, the bill explicitly seeks to impose “limited incarceration penalties” for most drug possession. But probation, jail time, fines, and mandatory treatment remain in effect. Threatening to lock people in cages or to place them under years of close government scrutiny hardly constitutes “decriminalization.”

Notably, when Colorado Democrats imposed misdemeanor criminal penalties for possession of “high capacity” gun magazines, Republicans did not run around saying that was fine, because misdemeanor-level penalties count as “decriminalization.” To the contrary, I recall many Republicans (along with me) squawking very loudly to the effect that those misdemeanor penalties constituted a very serious criminalization of non-rights-violating behavior.

Although most of the bill’s sponsors were Democrats, they were joined by Republicans Shane Sandridge, Vicki Marble, and Kevin Priola.

Efforts to Refelonize Fentanyl

In the wake of increased drug-related deaths during the pandemic, many involving fentanyl, various Colorado activists, legislators, and other elected officials have called for the refelonization of fentanyl possession.

Next week, the Colorado legislature will take up a measure to consider reimposing felony penalties for possession of fentanyl. Another proposal “would lower the felony threshold from four grams to two,” CPR reports.

Note that it matters very much whether the relevant weight is of pure fentanyl or of any “material, compound, mixture, or preparation” that contains fentanyl. Where the law specifies some sort of compound, even a trace amount of the drug in question can trigger the penalties at hand.

Criminal Penalties for Drug Possession are Unjust

The government should criminalize only actions that violate others’ rights. Possessing fentanyl does not inherently violate anyone’s rights; hence, government should not criminalize it.

Consider some comparisons:

• “An estimated 95,000 people . . . die from alcohol-related causes annually, making alcohol the third-leading preventable cause of death in the United States.” Nevertheless, possessing alcoholic beverages does not inherently violate anyone’s rights and so should not be criminalized. (Neither does selling alcohol where the concentration of the drug is indicated.)

• The first cause of preventable death is tobacco (same source), yet possessing cigarettes does not inherently violate anyone’s rights and so should not be criminalized.

• The second cause of preventable death is “poor diet and physical inactivity” (same source), yet possessing junk food does not inherently violate anyone’s rights and so should not be criminalized.

• Covid-19 has killed nearly a million Americans, and yet possessing anti-vaccine propaganda does not inherently violate anyone’s rights and so should not be criminalized. (Refusing to get vaccinated also violates no one’s rights.)

• In 2020, “45,222 people died from gun-related injuries in the U.S.” Nevertheless, possessing guns and ammunition does not inherently violate anyone’s rights and so should not be criminalized.

Locking people in cages, or otherwise subjecting them to government-inflicted punishments, when they have violated no one’s rights, is immoral and unjust. There simply is no reasonable argument that possessing fentanyl inherently violates others’ rights, so there is no good case for criminalizing it.

Criminal Penalties for Drug Possession are Harmful

Bring Our Neighbors Home argues:

50 years of failed carceral drug war policies shows us the re-felonization of fentanyl will not make us safer, but WILL harm low-income people, people of color, and people experiencing drug addiction.

The organization argues that drug addicts don’t respond to threats of prosecution anyway, that drug-related deaths are not tied to the lowering of criminal penalties, that police still can arrest people for possession (I don’t regard that as a point in favor of the status quo), and that “the risk of a felony will drive people who use drugs away from health services and result in riskier drug-using activity to avoid detection and prosecution.”

See also the brief on fentanyl by the Colorado Criminal Justice Reform Coalition, an op-ed in Colorado Newsline, an interview by 9News, and a reform-friendly article in the Denver Post. Also, CCJRC released poll results indicating that most Coloradans do not favor reimposing the felony for possession.

Still, some people argue that the potency of fentanyl means possession of it should be harshly criminalized. Let’s look at surrounding claims.

Lethal Doses of Fentanyl

The conservative site Colorado Peak Politics claims that four grams of fentanyl “is enough kill thousands of people.” From what I can tell this is correct. The Drug Enforcement Agency says, “Two milligrams of fentanyl can be lethal depending on a person’s body size, tolerance and past usage.” Four grams of pure fentanyl, then, would contain 2,000 potentially lethal doses. Usually overdose is measured by “LD50,” or “the amount of a material, given all at once, which causes the death of 50% (one half) of a group of test animals.” So I take it the FDA’s claim is that administering 2 mg of pure fentanyl to 2,000 average people would result in around 1,000 deaths.

Data from the FDA indicate the potency and potential lethality of fentanyl. “A dose of 100 mcg (0.1 mg) (2.0 mL) is approximately equivalent in analgesic activity to 10 mg of morphine or 75 mg of meperidine.” So we can say fentanyl is 100 times more potent than morphine. In terms of lethality, “The intravenous LD50 of fentanyl is 3 mg/kg in rats, 1 mg/kg in cats, 14 mg/kg in dogs and 0.03 mg/kg in monkeys” (via Wikipedia). I’m pretty sure no one has done a formal LD50 study on humans, so I take it that the 2 mg estimate is someone’s educated guess. But I’m not sure where that figure came from. It seems reasonable. By comparison, the maximum recommended dose of Sublimaze, a brand-name version of fentanyl, is 0.05 mg, which can be administered repeatedly during a medical procedure.

Obviously someone possessing 4 grams of pure fentanyl will not necessarily kill 1,000 people, and it might not kill any people. Possessing a trace amount of fentanyl won’t kill anyone. By comparison, my liquor cabinet currently contains enough alcohol to kill several people by overdose, but, in fact, my alcoholic beverages will kill zero people. Gun owners often possess thousands of rounds of ammunition, each of which is “potentially lethal,” but generally Republicans do not wish to criminalize the possession of ammunition even into the thousands of rounds.

Does the potency of fentanyl, then, mean that possession of it inherently violates others’ rights? No. Therefore, it should not be criminalized.

Prosecutorial Corruption

Should the legislature criminalize the possession of fentanyl because the possessor might sell or give portions of the drug to others? No. Even if government rightly criminalizes the nonauthorized distribution of drugs (a matter I’ll consider later), it still should not criminalize the possession of drugs on grounds that they might be distributed.

Most prosecutors disagree. Consider this reporting from Colorado Public Radio:

Tom Raynes, executive director of the Colorado District Attorneys Council, said the 2019 law has led to more overdose deaths by making it harder to punish dealers. While that law didn’t change the punishment for dealing drugs, it did take away an easier route for prosecutors: In the past, they could still get a felony charge for simple possession, without having to prove intent to distribute.

In other words, Raynes wants prosecutors to be able to prosecute people for distribution of drugs, even if prosecutors have zero evidence that someone distributed drugs, and even if, in fact, the person did not distribute any drugs. This is corrupt and a violation of basic principles of justice.

When Drug Distribution is Rights-Violating

When the local liquor store sells me whiskey, beer, wine, or the like, I have complete confidence that the products I am buying are accurately labeled. If someone intentionally or negligently sells or distributes tainted alcohol or alcohol of dangerous unmarked potency, government rightly considers that a crime. So, for example, when federal agents intentionally poisoned alcohol in the 1920s, those agents should have been criminally prosecuted for murder. (Of course they weren’t.)

In today’s world of black-market drugs, dealers often sell inherently dangerous drugs (either because tainted or of unknown potency), which government rightly regards as rights-violating behavior. (At the same time, we should not lose sight of the agency of the people purchasing and consuming drugs, a point that obviously does not apply when a child accidentally consumes a drug.)

Also, when minors are involved, what constitutes an inherently dangerous item often is different. Hence, government properly restrict the sales and distribution of a variety of dangerous materials to minors, including alcohol, tobacco, explosives, and guns.

That government rightly cracks down on the sale and distribution of inherently dangerous materials is a different issue from appropriate penalties. I think that overpunishment is a serious problem in the U.S. criminal justice system. In particular, low-level drug dealers, who often suffer from profound problems of addiction, often get absurdly overlong prison sentences.

Prohibition Causes Almost All Fentanyl Deaths

Dealers of inherently dangerous drugs are immoral and criminal. Yet the government agents who imposed drug prohibition indirectly created the dangerous and violent black market in drugs that causes most drug-related deaths and almost all fentanyl-related deaths. Prohibitionists also deserve moral blame, even assuming they did not intend the harm but only negligently produced it.

Consider these remarks from the DEA, a major agency tasked with enforcing drug prohibition:

Illicit fentanyl, primarily manufactured in foreign clandestine labs and smuggled into the United States through Mexico, is being distributed across the country and sold on the illegal drug market. Fentanyl is being mixed in with other illicit drugs to increase the potency of the drug, sold as powders and nasal sprays, and increasingly pressed into pills made to look like legitimate prescription opioids. Because there is no official oversight or quality control, these counterfeit pills often contain lethal doses of fentanyl, with none of the promised drug.

There is significant risk that illegal drugs have been intentionally contaminated with fentanyl. Because of its potency and low cost, drug dealers have been mixing fentanyl with other drugs including heroin, methamphetamine, and cocaine, increasing the likelihood of a fatal interaction.

Producing illicit fentanyl is not an exact science. Two milligrams of fentanyl can be lethal depending on a person’s body size, tolerance and past usage. DEA analysis has found counterfeit pills ranging from .02 to 5.1 milligrams (more than twice the lethal dose) of fentanyl per tablet. . . .

Unless a drug is prescribed by a licensed medical professional and dispensed by a legitimate pharmacy, you can't know if it’s fake or legitimate. And without laboratory testing, there’s no way to know the amount of fentanyl in an individual pill or how much may have been added to another drug. This is especially dangerous because of fentanyl's potency.

The prohibition of drugs has not stopped fentanyl-related deaths but instead has caused almost all of them.

As a result of prohibition, people often buy fentanyl when they are trying to buy other drugs.

Dr. Josh Barocas points out (lightly edited), “Fentanyl is ubiquitous and . . . people often don’t KNOW they have it. I haven’t seen a urine toxicology report without fentanyl in years.”

Dr. Sam Wang said, “What’s going on right now is specific in that we’re getting overwhelmed by these fake counterfeit pills that look like oxycodone.”

The dangerous black market in drugs caused by prohibition has killed many Coloradans. Here are a few examples.

1. The deaths of five people in Commerce City are “likely linked to fentanyl” that was “possibly masked as cocaine,” reports CPR. These people probably thought there were taking cocaine, not fentanyl.

2. 9News reports:

A father in Monument is warning other parents about the dangers of fentanyl, and wanting them to have conversations with their kids. Both of [the man’s] sons [ages 19 and 21] died the same night after taking a counterfeit pill in July. He isn’t calling this an overdose, but rather a poisoning, because he said his sons didn't know the drug they were actually taking.

The father says the men thought there were taking “oxy pills.”

3. A sixteen-year-old Lakewood girl “died from an accidental drug overdose laced with fentanyl,” according to the girl’s school (via the Gazette). Although details are scant, apparently the girl did not know she was taking fentanyl.

4. A seventeen-year-old Highlands Ranch boy was found at home dead from a fentanyl overdose. The Gazette reports,

Investigators found blue pills with an “M” on one side and “30” on the other at the crime scene, Spurlock said. Authorities believe the pills contained fentanyl, which often is manufactured in Mexico.

According to the DEA, “counterfeit oxycodone M30 tablets” often contain fentanyl.

These cases follow the general trend. People who die of fentanyl overdoses generally are not trying to kill themselves and do now know they are consuming a potentially lethal dose of fentanyl. Instead, they either think they are taking a much lower dose of fentanyl, or they think they are taking some other drug entirely, but the drugs are fraudulent, impure, or tainted.

Again, drug prohibition creates the violent black market in drugs in which drugs often are tainted and of unknown potency. Yet, stunningly, the usual reaction of prohibitionists to the deaths caused by drug prohibition is to call for ramped-up prohibition. That prohibitionists cause people to die hardly ever makes them question their general tactics.

As indicated, government should prohibit rights-violating actions. Distributing dangerous substances to minors is rights-violating because minors do not yet have the maturity to rationally consent. So drug prohibition with respect to the distribution of drugs (including alcohol and tobacco) to minors should remain in place. If general prohibition were repealed, several things would happen. The market would not be flooded with especially dangerous, fraudulently labeled pills that can kill kids who make a single mistake. And law enforcement could focus its energies on keeping dangerous substances out of the hands of kids.

Below I’ll take up related matters.

Child Endangerment Is Still Illegal

Let us consider the horrific case of the Brighten toddler who died of fentanyl poisoning. According to 9News, the “parents smoked fentanyl and crack cocaine” as the child died, and obviously they let a toddler get ahold of a lethal dose of fentanyl. The parents “are both charged with child abuse resulting in death and distribution of a controlled substance.” (It’s unclear to me based on that story whether the parents sold illegal drugs.)

This was definitely a case where government properly could have intervened. Endangering a child is a crime. This child belonged in foster care or with some other responsible care giver. The case is not a point in favor of felonizing the possession of fentanyl across the board, any more than a case of a toddler dying by unintentional gunshot is a point in favor of felonizing the possession of guns across the board. The case is a point in favor of maintaining current laws that criminalize child endangerment.

The Pandemic Drove Up Deaths

A Denver Post article by Meg Wingerter offers helpful context. Colorado suffered 48,193 deaths in 2021, or “9,600 more than the average for the three years immediately preceding the pandemic.”

Over half of that increase, or 5,199 deaths (officially), are attributable to Covid-19.

“The state’s preliminary data showed 1,757 people died [from drug overdoses], which was about 700 more than in pre-pandemic years.”

“The state reported 1,322 people died by suicide, an increase of 71 from the three-year pre-pandemic average.”

By my count that still leaves around 3,600 extra deaths unaccounted for.

Although I don’t have Colorado-specific figures, nationally alcohol-related deaths also rose. Between 2019 and 2020, “deaths involving alcohol” increased from 78,927 to 99,017, a 26% increase, reports JAMA. (Some of these deaths involved mixed drugs; some resulted from “alcohol-associated liver diseases.”)

I’ll point out here that no one is suggesting that government relaunch alcohol prohibition or ramp up punishments of any kind for the sale or possession of alcohol. Obviously selling alcohol to minors remains a crime.

Bill 1326

House Bill 22-1326 was introduced on March 25 and is scheduled (as of April 9) for the House Judiciary committee on April 12.

The bill attempts to “thread the needle” by cracking down on fentanyl distribution while recognizing that drug addiction is fundamentally a mental-health issue. Note the coalition supporting it. Republicans Sandridge and Priola signed on (recall they also sponsored bill 1263); joined by John Cooke, a Republican and tough-on-crime former sheriff; reform-minded Democrat (and now candidate for U.S. Congress) Brittany Pettersen; Alec Garnett, Democratic speaker of the House; Republican Mike Lynch; and well-known criminal-justice reformer Leslie Herod. Partly, the Democratic support for the bill is a result of election-year politics in which Republicans attempt to paint Democrats as soft on crime.

There is a lot to this 43-page bill. (By contrast, 1263 as signed was 11 pages.) Amendments may matter very much. It is unclear to me whether this bill will be used as a vehicle to refelonize possession of fentanyl, and if so what the details will look like.

Legislators and the rest of us are right to be extremely concerned about fentanyl-related deaths. Parents should discuss with their children the potential dangers of drugs including alcohol. I have had many such conversations with my young child. But the legislature should not use fentanyl-related deaths as a pretext to violate people’s rights by imposing unjust criminal penalties on drug possession. We should not threaten to lock drug abusers in cages and destroy their lives with a felony record. We should offer them empathy, counseling, and treatment.