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Is Colorado Bringing Back the War on Drugs?

Yessenia Chavez died on July 16, 2021, after ingesting a Percocet pill that, unbeknownst to her, was laced with fentanyl. “Her life could have been saved if anyone in that house knew how to prevent the situation,” her mother, Jessica Chavez, told Colorado lawmakers on April 12 during the first public hearing over the Fentanyl Accountability and Prevention bill. “[The police] did not question anyone in the house about the drugs. They took nobody [into] custody.”

Chavez’s testimony was followed later in the day by Laura Cash, whose son also died of an overdose. She warned against instituting harsher penalties that could lead to felony murder charges for an overdose victim’s friends and family. “My son would have never wanted another life ruined because of his choices,” Cash said.

Chavez’s and Cash’s children are only two of the 1,436 Coloradans who have died after overdosing on a deadly synthetic opioid known as fentanyl since 2020, according to data from the Colorado Department of Health and Environment (CDPHE). It’s an alarming statistic that inspired members of the Colorado House of Representatives to introduce a piece of legislation entitled Fentanyl Accountability And Prevention, or HB22-1326, this session. The bill seeks to enact tougher punishments for fentanyl possession while also putting money toward treatment and harm reduction.

Debate around the bill intensified after the April 12 hearing, when lawmakers considered, and ultimately passed, an amendment to make the law more punitive: Now, should the bill pass the General Assembly, it would be a felony to knowingly possess one gram or more of fentanyl (or a one gram compound with just a smattering of the deadly opioid) for personal use. For addiction and drug policy experts alike, the change begs the question—who will be impacted by the proposed legislation and widened police drag net?

Critics, including Elisabeth Epps, executive director of the Colorado Freedom Fund and a candidate for Colorado House District 6, testified that the bill would essentially reignite the “war on drugs,” which disproportionately impacted Black communities through aggressive policies of policing, prosecution, and sentencing. State Representative Rod Bockenfeld, a Republican member of the Judiciary Committee, took issue with Epps’ characterization: “You mentioned the ‘failed’ war on drugs. However, what we’re seeing is that, once we started defelonizing possession, that our use and deaths have doubled, tripled, maybe quadrupled in this country? Is it possible that maybe the war on drugs had some check and balance?”

It’s likely no shock that politicians on opposite sides of the aisle come down on opposite sides of the issue. What is surprising to many on Epps’ side is the number of Democrats who are crossing the aisle to join Bockenfeld. “People are putting their seats or their votes before peoples’ lives,” says Democratic state Representative Leslie Herod, who questions the amendment’s potential to harm vulnerable communities for generations to come.

In the end, the Judiciary Committee voted 7 to 4 to allow the amendment. Five Democrats voted in favor. On Monday, April 25, the Colorado House voted 42 to 20 to pass the bill, which will now move to the Colorado Senate for consideration before the legislative session ends May 11. “There are strong political forces weaponizing criminal justice reform,” says ACLU of Colorado’s director of advocacy and strategic alliances Taylor Pendergrass. “It’s not a good faith debate about how to protect people from harm or save lives, but really just a wedge issue during a very highly charged political year.” In other words: Fix the fentanyl problem, or lose the election.

A Brief History of the War on Drugs

Former President Richard Nixon declared war on drugs in June 1971, calling drug abuse “public enemy number one.” He allocated funds to strengthen federal drug control agencies and pushed through mandatory sentencing, “stop and frisk,” and no-knock warrants, which allowed police officers to enter a suspect’s home without first announcing themselves.

But historians say U.S. drug prohibitions have been as much about the people who use substances as the substances themselves. America’s first opioid crisis began just after the Civil War—Union Army doctors issued nearly 10 million opium pills to wounded soldiers, and an untold number went home addicted.

Opioids in the 1890s continued to go unregulated and were prescribed for a wide range of maladies, including menstrual cramps, according to historian David T. Courtwright, author of Dark Paradise: A History of Opiate Addiction in America. It wasn’t until the 1870s, when Chinese immigrants introduced opium smoking to the United States, that popular sentiment regarding opioid use changed. No longer a soothing tincture for little old ladies, the drug instead was associated with young toughs who frequented Chinese laundries. That association fueled a wave of anti-Chinese immigration laws and, by 1914, recreational use of opium was banned nationally.

Other narcotics have a similar social history: Cocaine was banned when it became commonly used by Black Americans. (In February 1914, the New York Times highlighted the racial hysteria in an article titled, “Negro Cocaine Fiends Are A New Southern Menace.”) Marijuana took on a similar racial bias in a 1917 U.S. Treasury Department report concerned that, “Mexicans and sometimes Negroes and lower class whites” who smoked marijuana might assault upper-class white women while under the influence. These fears coincided with an influx of war refugees and political exiles seeking safe harbor in the U.S. during the Mexican Revolution.

And then there were the Reagan years, when Congress passed the Anti-Drug Abuse Act of 1986. The law established the first mandatory minimum sentences based on specific quantities of cocaine, and put in place tougher criminal sentences for offenses involving crack cocaine than powder cocaine. For example, a person distributing five grams of crack received the same amount of jail time as someone distributing 500 grams of blow. Because crack was relatively cheap and accessible for poorer drug users, the sentencing disparity hit Black communities hardest. Before the 1986 law, the average drug sentence for African Americans was 11 percent higher than for whites. Four years later, it had jumped to 49 percent higher.

Republicans weren’t the only ones to enact such policies. Former President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994, which ushered in new statutes for gang-related crime and instated the three strikes rule, which mandated life imprisonment after three felony convictions. The law only served to accelerate the imprisonment of Black Americans: Although Black Americans make up 13 percent of the population, they represent 40 percent of all prison inmates, according to the Massachusetts-based think tank, Prison Policy Initiative.

Criminal justice reformers saw the pendulum swing their way beginning in 2010, when Congress passed the Fair Sentencing Act. Signed into law by former President Barack Obama, the law eliminated a five-year mandatory sentencing for simple possession of crack cocaine over its powder form—ending a distinction that legal scholars assert led to the disproportionate arrest and incarceration of Black drug users.

That same year, harm reductionists celebrated when Congress reversed a decades-long ban on federally funded needle exchange programs—a concept that involves providing unused, sterile syringes to people who inject drugs—which public health advocates have long pushed as an effective way to prevent the spread of HIV and hepatitis C. A reversal in that ban only highlighted its effectiveness: In 2012, a Republican-led Congress reinstated the ban in response to the growing number of heroin overdoses, as people who had been overprescribed prescription painkillers like OxyContin turned to injecting the drug. Just two years later, more than 200 people contracted HIV after sharing syringes in one Indiana county alone.

Harm Reduction vs. Punishment: What Works and What Doesn’t

Now, state Republicans and many members of law enforcement, including Denver Police Chief Paul Pazen, assert that Denver’s rise in car thefts, homicides, and overdoses spanning the past two years is due to several statewide criminal reform laws passed in 2019. Those statutes, which include a bond reform and a law reclassifying the possession of less than four grams of schedule I and II drugs (like heroin and cocaine) as a misdemeanor, were meant to reduce human and financial costs associated with the mass incarceration of nonviolent offenders.

Those statutes may have been the victim of bad timing. Drug reclassifications went into law on March 1, 2020, just as the novel coronavirus sent the country into lockdown. Though murders spiked that summer, a 2020 crime data analysis by the Brennan Center for Justice concluded that jumps in crime occurred across the country, including in cities that had not implemented any reforms. Crime analysts point to possible contributing factors, including the economic and mental health toll of the pandemic, as well as civil unrest after a Minnesota police officer murdered George Floyd. Ultimately, the Brennan Center for Justice concludes, the reasons for the crime increase “can’t be squared with any one narrative.”

Fear sparked by rising crime in Colorado and the alarming rate of fentanyl overdoses, however, has obscured much of that nuance. It’s a source of frustration to lawmakers intent on pursuing less-punitive measures. “This is not a new conversation,” says Democratic state Representative Leslie Herod, who previously voiced support for the bill before the amendment felonizing fentanyl possession was added.

Herod is chairwoman of the Black Democratic Legislative Caucus of Colorado, whose nine members will take individual positions on the bill as it evolves. “What I will say is the Black caucus stands united in fighting against punitive measures that just relive the war on drugs and the failed policies of the past,” Herod says. When asked if her support for the bill had shifted after the amendment, she responded that lawmakers were “still working through additional amendments.” The reduced possession threshold in House Bill 1326 was passed through the House Appropriations Committee—which is chaired by Herod and received her yes vote—on Friday.

Increasing the penalties for fentanyl possession isn’t the only goal of the legislation—the bill currently earmarks $26 million for harm reduction efforts like Narcan and fentanyl testing strips. Several Democrats have said it was these measures that earned their support. Democratic state Representative Kerry Tipper told 5280 via email that her yes vote was solidified with “adding robust guardrails and off-ramps for people to get the help they need.” For state Representative Adrienne Benavidez, who also gave 5280 her statement via email, her yes vote was contingent upon “including language that requires that the individual knew or should have known that they were in possession of contained fentanyl.”

Democratic Speaker of the House Alec Garnett, who is in support of HB22-1326, believes the harm reduction aspects of the bill are being overshadowed by the felony amendment. “It’s kind of amazing how much attention the possession piece is garnering,” Garnett says. “In low level drug possession cases, you know, one [gram] is still 10 pills, but [the statute] provides space for a plea down to a misdemeanor and flexibility on how the system goes about focusing on that drug felony.”

Elisabeth Epps and Lisa Raville give individual testimony at a Colorado House Judiciary Committee public hearing on House Bill 1326, held on April 12, 2022. Photo by Melanie Kessler

Still, both Epps and Herod expressed fears that the legislation’s more punitive measures would disproportionately impact the Black community. Those concerns aren’t unfounded—racial disparities in drug-related charges remain in the Centennial State. A Department of Public Safety report released in 2021 showed that even after legalization, Black Coloradans were still twice as likely as whites to be arrested on marijuana-related charges. Such disparities have led to higher incarceration rates for Colorado’s Black community: A 2017 report by the ACLU of Colorado found that Black Coloradans, who made up only four percent of the state population, consisted of 13 percent of those imprisoned.

Should the fentanyl bill follow this trend, it would mean the very community most harmed by the dangerous drug would also see the worst punishment. In February 2022, the nonprofit advocacy group Families Against Fentanyl found that in the past two years, fentanyl-related deaths had increased five-fold in Colorado. The same report also found that Black and Indigenous Americans are more likely to die from fentanyl-related overdose than any other racial groups.

Activists and academic literature on the war on drugs say it is enforcement, not possession amounts, that yield disparities. “The worry is that police and prosecutors, because of biases and because of other social factors, are just going to be more likely to use these criminal statutes against defendants from marginalized communities,” says Benjamin Levin, associate professor of law at the University of Colorado Boulder. Levin contends that statutes that use criminal law to regulate drug use indicate that the war on drugs is very much alive.

“The worry is, if you continue to use possession crime as a way of addressing these issues, you’re just creating incentives for police to stop more people,” says Levin. “Based on decades of evidence, there’s reason to think that that’s less likely to happen to white students at CU than it is to happen to Black drivers or pedestrians in lower income communities.”

The data backs him up: A 2020 study by social scientists in New York University’s Steinhardt School found that Black drivers were about 20 percent more likely to be stopped than white drivers. The same study found Black drivers were searched twice as often as white drivers—even though they were less likely to be carrying drugs, guns, or other illegal contraband compared to their white peers.

Black pedestrians don’t fare any better. When the Vera Institute analyzed 125,000 pedestrian stops by police in New York City, they found Black New Yorkers were stopped more than 23 percent more often than white New Yorkers, representing over half of the stops and only 26 percent of the city’s population. Some activists say pretextual stops—when police stop a driver or pedestrian for a minor violation and use that stop to investigate something else, without a warrant—give law enforcement too much leeway in whom to stop. Police insist it’s a useful tool to investigate drug possession, hoping to catch that big dealer.

According to Levin, concerns about disparities in enforcement scale up to every step of the criminal justice system, from surveillance and arrest, to prosecution and sentencing. Black defendants tend to be treated worse than white defendants, and are more likely to face sentencing enhancements. There’s an immense reliance on individual discretion at the policing level, the prosecutorial level, and in the sentencing phase with judges. “If we’re relying on that kind of discretion, and we accept the fact that people have biases,” says Levin, “there’s always going to be a risk that defendants perceived as scarier, or riskier, or less sympathetic are going to be people from an outgroup.”

Community members working in harm reduction, an umbrella term for a suite of public health policies that decrease the dangers of drug use, believe there are better ways to reduce fentanyl deaths. They have been working behind the scenes since last November to convince lawmakers to only rely on evidenced-based approaches while crafting the bill. “What we should be talking about is safe supply and managed use,” says Lisa Raville, executive director of Harm Reduction Action Center, a nonprofit that provides resources to users in a non-judgmental space and advocates for evidence-based drug policy at the local and state levels.

Both strategies have seen success: Safe supply, providing substance users with a product that isn’t laced with any unknown adulterants with a known potency, was shown to be effective when it was used in Vancouver. And managed use, a harm reduction principle that acknowledges that people have and will always use drugs, has led to policies like safe injection sites. At these facilities, a person may use drugs under the watchful eye of a person trained to respond to an overdose. One such site opened in New York City last year and has seen zero deaths from an overdose.

To Raville, safe supply and managed use are no different to how we currently administer cannabis, or even alcohol proof. “But people have a very hard time talking about that if you’ve never had a good conversation about those drugs. It’s always reefer madness.”

And that “reefer madness” has led to policies that most evidence says simply do not work. A 2018 policy analysis of state corrections and public health data by the Urban Institute found no relationship between imprisonment rates and rates of drug use, overdose deaths, or arrests for drug law violations. In other words, evidence shows the ineffectiveness of felony convictions to deter drug use or mitigate the harm it can cause. Decades of research points in the opposite direction, according to the National Institutes of Health, which stated in May 2021 “that addiction is a medical condition—a treatable brain disorder—not a character flaw or a form of social deviance.”

Unfortunately, some say this expert advice continues to go unheeded. “It’s not about the policy, it’s about politics,” says Denise Maes, policy analyst for Servicios Sigue, a behavioral health organization serving the Denver Latino community. “I think there is the sense that the Dems have to pass something now for their political survival in November.”

Lawmakers, regardless of political affiliation, have expressed that they want to see an end to the overdose crisis. While tough-on-crime policies have long been associated with Republicans and conservatives, Levin is quick to remind us that it isn’t so red or blue: “It’s really important to recognize that one of the reasons we’re in this place, in terms of incarceration and criminal law in this country, is because of a lot of support from Democrats.”

But public opinion among Colorado voters is changing. The Colorado Criminal Justice Coalition released a poll this month that found most voters oppose law enforcement officials’ recent calls to re-felonize simple drug possession. A majority believe lawmakers should focus more on prevention and treatment and less on punishment and incarceration. “I think the voters are ahead of the legislators in some respects on this,” says the ACLU’s Pendergrass. “And I think people whose lives have been directly impacted by substance use know in their bones that jail doesn’t work. They want to see prevention and treatment prioritized, and I hope that the legislature can catch up to them.”

Maes and Raville also take issue with language that creates an additional criminal charge if they “introduce” or “dispense” any drug with any amount of fentanyl that leads to death. “It’s a drug-induced homicide piece that essentially makes every overdose death a murder investigation,” says Raville. “That’s only going to increase overdose deaths because no one’s gonna want to call 911.” The bill also requires a court to order a defendant into drug treatment, something Raville says doesn’t work. “That’ll be incredibly problematic, too. So, no. I am not a fan of this bill at all.”

While Herod, Maes, and Pendergrass expressed support for the bill before it was made more punitive, all agreed the public debate would have been better spent giving air to progressive harm reduction efforts.

Whether House Bill 1326 becomes law with harsher penalties for fentanyl possession remains to be seen. The question of whether the criminal statutes will deter substance use and sweep the Centennial State of large amounts of fentanyl is yet unanswered. One thing is certain: Coloradans will soon know for certain if harm reduction efforts will take a backseat to politics in an election year. And in November, legislators will find out for themselves at what cost these efforts came. But the bearers of the most collateral damage in this crisis will continue to be those communities most at risk of overdose death—Black and Indigenous communities.

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