A bipartisan bill to create a new Level 1 drug felony for peddling drugs that results in death squeaked out of a Senate committee on Monday on a bipartisan vote.
But that might be its last hurrah, given that the measure is opposed by both the top Democratic leaders in the chamber.
At its core, Senate Bill 109 sought to mirror what lawmakers did last year, when they made distribution of drugs containing fentanyl or its derivatives a Level 1 felony if it weighs more than a certain amount — subject to an aggravated range penalties if it resulted in death.
The hearing expectedly brought up sharp divisions over how to confront Colorado's fentanyl crisis, with some insisting that a tough stance doesn't solve the problem and others maintaining that peddling fentanyl is pernicious it must be met with the same level of severity.
SB 109, which the Senate Judiciary Committee heard in a five-hour hearing, received little love from committee Democrats but got a 3-2 vote only after Sen. Dylan Roberts, D-Eagle — who is also an assistant district attorney in Eagle County — voted with Republicans to send it to the full Senate.
SB 109, which now heads to the full Senate, faces opposition from Senate President Steve Fenberg and Senate Majority Leader Dominick Moreno, who both told reporters on Tuesday they are "no" votes on the bill.
The bill's supporters say under current laws, drug dealers are getting off on a technicality because prosecutors are in a bind over how to prosecute cases when fentanyl and another substance are found in the blood of a person who had died of an overdose.
Sen. Kyle Mullica, D-Thornton, one of the bill's sponsors, told the committee he's advocating for the measure because his community has been clear that, if someone comes into the community and deals in drugs that kills someone, there should be a significant consequence.
"They do not want us to throw our hands in the air and do nothing," he said.
SB 109 provides a path to justice, he added.
Sen. Byron Pelton, R-Sterling, the bill's other sponsor, said his district is dealing with a significant meth problem and is trying to find resources to provide treatment.
However, "there must be consequences when someone dies," he said.
Lawmakers significantly amended the bill during the hearing to change the drugs regulated from compounds containing fentanyl — and similar drugs — to all Schedule I or Schedule II drugs and to add a new section regarding smaller amounts of fentanyl that are shared and would make the person sharing those drugs probation-eligible.
Stakeholders are "asking for consistency in our laws," Mullica said, adding individuals are dying from fentanyl, meth and heroin, but there are different levels of justice depending on what caused the death.
Sen. Julie Gonzales, D-Denver, who had been a "no" vote on the fentanyl bill in 2022, pointed out that part of the discussion last year was that fentanyl is different — that it's a "poison," not a drug.
That's not the discussion around SB 109, she said.
No matter what drug causes the overdose, people are still dying, Mullica replied. He said people want legitimate consequences for those who deal and cause a death.
SB 109 is backed by the Colorado District Attorneys' Council, law enforcement and a handful of county human services officials.
"This bill will put drug dealers on notice that they will be held accountable for what they sell," said District Attorney Brian Mason of the 17th Judicial District.
Mason said drug dealers are mixing one kind of drugs with another and that now shows up in autopsy reports. And because current law deals differently with dealers based on what they're peddling, that mix can be a hindrance to prosecution. Mason said SB 109 would resolve that situation.
That's the experience for the Denver District Attorney's office, too, said Thain Bell, the chief deputy district attorney.
He said drug users aren't just using fentanyl — they're also showing up with cocaine or other drugs in their system. The medical examiner in his county, he said, cannot tell him whether the cause of death is an overdose from fentanyl or meth. But, as a prosecutor, he has to prove which one caused the death under the way the law, including last year's HB 1326, is written.
Drug dealers are getting off on a technicality, Mason and Bell both indicated.
Critics of SB 109 who showed during the hearing well outnumbered supporters, including from advocates of intervention rather than incarceration, mental and behavioral health experts, and dozens of people who have lost loved ones to overdoses.
Ember Gren said she was flabbergasted that SB 109 would be viewed as a solution. Two of her children battled drug addiction: one got treatment, the one who didn't got jail time. If a person goes to prison for 32 years, taxpayers will pay more than $1 million for that inmate, and that money should go to treatment, she said. Drug addiction is being treated through punishment, and that's not working, she insisted.
"Who is to blame for hundreds of preventable deaths each year?" asked Taylor Pendergrass of the American Civil Liberties Union. SB 109 is one answer to that question, but it places an extraordinary amount of blame on the shoulders of people who share drugs with friends or family, he said.
SB 109 is the wrong answer, he concluded. No matter the depth of pain, it isn't right to threaten someone who's grieving a loss with life in prison. And it will disproportionately affect communities of color, he claimed, adding there is no justice in shoveling punishment on top of struggling people.
SB 109 is a cop-out, he said.
"You know who shares the blame for the overdose crisis? We do. It's a policy failure," he said, adding the crisis should be addressed with real policy solutions that save lives and reduce the drug supply chain.
When Racquel Garcia, who founded HardBeauty, a peer recovery coaching practice, lived in Palmer Lake 13 years ago, she shared drugs with a friend.
"We are extremely kind and caring to one another," she said of people in the "drug culture." "
I didn't want her to be left out," she said. Within 30 minutes of her sharing the drug, her friend, Shawna, stopped breathing. Garcia called 911 but it was too late.
"I promise you, I was not trying to murder my friend. I was sharing from the goodness of my heart," she said, adding her friend's death was the catalyst for Garcia getting clean.
She's spent the last 13 years trying to make amends for her death and to mend the broken heart of Shawna's mom and sister, but prison wouldn't help that, she said.
Travis Ayers from Advocates for Recovery in Sterling told the committee he has been in recovery for six years. If SB 109 was in place when he was actively abusing drugs, he would be sitting in prison and he wouldn't be the father, husband or son he is today, nor would he be able to do the lifesaving work he's doing now, he said.
This bill does not focus on the problem or help with the solution, he said, adding, "The opposite of addiction is connection, to like-minded people. Not incarceration."
"We are in a crisis in Colorado," countered Tim Lane of the Colorado District Attorneys' Council, who spoke in favor of the bill. "It's a crisis that can't be fixed by one solution."
But that crisis is causing more deaths than firearms every year, he said, arguing that when people get into the business of distributing drugs, they're aware they're in a dangerous business.
Lane noted that people have argued this bill would increase deaths because people won't report or that it would be used against family and friends, but he said he has looked at every case, and, in each one, someone made money and some even continued to peddle drugs after causing a death.
"They're not just selling to friends, they're selling to strangers," he said.
In one case in Colorado Springs, two people sold to an undercover agent after causing a death, and bragged on social media they were making more than $8,000 a month, Lane said, adding, "That's making profit on death."
"We haven't seen a single prosecution" of someone who is sharing drugs, Lane said.
Lane added that district attorneys can't prosecute the fentanyl cases under the 2022 legislation like they were be able to. The problem, he said, is that if a dealer laces a drug with fentanyl, they can't pursue the case because of the mix of drugs.
"It's an unintended error in HB 1326," he said, adding that needs to be fixed.
Gonzales attempted an amendment that would call for a study on sentencing for those who sell mixtures containing controlled substances, and whether that sale is the "proximate cause of the death of another person." The amendment failed on a 2-3 vote.
Roberts, in explaining his vote, said he believes the bill is narrowly tailored enough, and that few cases are being prosecuted under the 2022 law. When someone dies from fentanyl or other schedule I or II drug, there needs to be consequences, he said.
"We haven't seen more arrests. To the contrary, we're still witnessing an epidemic of addiction playing out in very brutal ways," Gonzales said.
The most compelling testimony last year focused on the five individuals in Commerce City who died of a fentanyl overdose, and no one had been brought to justice in that case, she said, adding said she places her trust with the people in public health or those who have experienced addiction themselves.
Two other bills intended to fix issues with the 2022 law. House Bill 1167, which seeks to make changes to the state's Good Samaritan law that were missed in last year's legislation, was adopted by the House on a 43 to 20 vote on March 3. It has been assigned to the Senate Judiciary Committee.
A hearing on House Bill 1164, which strikes the word "knowingly" as it pertains to possession of fentanyl, has not yet come up for a hearing in the House Judiciary Committee.
