Colorado’s New Fentanyl Law Isn’t Effective.
Colorado lawmakers and prosecutors rejoiced when HB22-1326, also known as the Fentanyl Accountability and Prevention Act, was passed earlier last year to combat the alarming rate of fentanyl overdose deaths in the state.
However, as the law approaches its first full year in effect, it is already facing major roadblocks that could render it ineffective in achieving its intended purpose.
"It's not working out the way I thought it would," said Denver District Attorney Beth McCann. "I don't think any of the DAs anticipated this issue."
One of the main issues with the new law is the unexpected conflict between prosecutors and coroners' offices. Due to the high number of fentanyl-related deaths in the state, the 2022 law was designed to give prosecutors the ability to charge fentanyl dealers with felonies if their product caused a death. However, prosecutors are facing resistance from coroners who are hesitant to label fentanyl as the sole cause of death if other substances are found in the victim's system.
Denver District Attorney Beth McCann, a supporter of the law, expressed her disappointment with the unanticipated challenge, stating, "It's not working out the way I thought it would. I don't think any of the DAs anticipated this issue." Without a clear cause of death, prosecutors are unable to convict any dealers under the new law, rendering it essentially useless.
The bill, HB22-1326, Fentanyl Accountability and Prevention, was highly contentious before passage. It was the final bill to clear the legislature before the session gaveled out. At odds was always how much fentanyl would trigger the law. Because negotiations went south in the final hours, now Minority Leader Rep. Mike Lynch (R-HD65) pulled his name from the bill.
“You know this, you see it every day in the community as a prosecutor. You see the prevalence, the penetration of this drug into our world. It's worse than anything we've ever seen. There's a reason why we are here debating this drug,” then Minority Leader Rep. Hugh McKean.
Then Minority Leader Rep. Hugh McKean (R-HD51) gave one of his most impassioned speeches from the floor in favor of HB22-1326. A few months after giving this speech this memorable agreement from the well, McKean would pass on October 30th at the age of 55 of a heart attack.
But perhaps the most concerning aspect of this law is the incorrect assumption that it would lead to harsher penalties for fentanyl dealers.
HB22-1326, Fentanyl Accountability and Prevention: Concerning measures to address synthetic opiates, and, in connection therewith, changing the criminal penalties associated with synthetic opiates; using a substance abuse assessment to direct appropriate treatment at sentencing; providing opiate antagonists in the community; providing synthetic opiate detection tests in the community; creating immunity for furnishing synthetic opiate detection tests; providing treatment for persons in the criminal justice system; developing a fentanyl prevention and education campaign; providing funding for substance use and harm reduction; evaluating the substance use and harm reduction needs across the state; requiring a post-enactment review of the implementation of this act; and making an appropriation.
In reality, due to the complications with coroners' reports, many cases are falling through and sentences are not being handed down as expected. Tricia Otto, who lost her son to a fentanyl overdose, assumed that the dealer responsible would face severe consequences under the new law. However, due to other substances being found in her son's system, the coroner could not conclusively label fentanyl as the sole cause of death, leading to the potential prosecution falling through.
Despite the clear issue with this law, some prosecutors continue to push for its strict enforcement.
Arapahoe County coroner Dr. Kelly Lear, who also works as a prosecutor, stated, "If the law isn't allowing prosecutions to move forward the way it was intended to, perhaps the law needs to be revised."
However, this overlooks the basic principle of medical accuracy and honesty that coroners must adhere to. They cannot simply tailor their reports to fit the agenda of prosecutors.
READ MORE:
Colorado Lawmakers Take Action To Combat Drug Use and Overdose Crisis
Fentanyl Trafficking Crisis Ramps Up Overdose Cases in Colorado
Colorado’s Rising Fentanyl Crisis Sparks Statewide Educational Campaign
In the end, the Fentanyl Accountability and Prevention Act is not only facing practical issues, but also a fundamental flaw in its design. Without a clear cause of death, prosecutors are unable to carry out the intended consequences for fentanyl dealers.
It's time for liberal Democrat controlled Colorado legislature to face the reality of their ineffective legislation and make changes that will actually address the growing fentanyl crisis in the state and pass laws that save lives.