Attorney General Weiser’s testimony before the Senate Judiciary Committee on the Fentanyl Accountability and Prevention bill (HB22-1326)
April 26, 2022 (DENVER)–Attorney General Phil Weiser delivered the following testimony to the State Senate Committee on the Judiciary regarding House Bill 22-1326, the Fentanyl Accountability and Prevention Act:
Chairman Lee and members of the Committee, thank you for this opportunity to testify in favor of House Bill 22-1326 (“HB 22-1326”). This bill is foundational to our state’s response to the growing presence of a deadly substance that, every day, harms our communities.
Let me start by stating that each of us in this room is here to save lives. We are here for our communities. We are here because people are dying. As we act to address this crisis, we must do so with a sense of urgency, vigilance, and continuous improvement. Our response will not be a one-time response, but rather will be ongoing and adaptive as this threat evolves
The Moral Imperative
In 2021, the United States reached a terrifying threshold—over 100,000 lives lost to drug overdoses in a single year. That exceeds the deaths from car crashes and gun violence deaths combined for that year. We face an addiction crisis—and it is a deadly one. The majority of these overdose deaths are from opioids and, increasingly, those deaths are due to fentanyl. Over 800 Coloradans died from fentanyl overdose deaths in 2021.
Those 800 deaths are losses of loved ones—children, siblings, parents, friends, co-workers, and others we cherish. To bring these losses into context, I want to share the stories of two moms—Tami and Tricia, who lost their children to fentanyl. As we do the work of responding to this crisis, stories like theirs must guide and inform our actions.
I met Tami at a Substance Abuse Trend and Response Task Force meeting, where she told me about the death of her son Braden. She agreed last fall to join me and other law enforcement leaders to call for action on fentanyl. She shared that her son Braden died because he purchased what he thought was an oxycodone pill, presumably to help him sleep. That pill contained fentanyl. And that pill killed him. Braden’s death is not what we have in mind when we call a death an overdose—Braden thought he was purchasing a widely used prescription drug. It’s more accurate to describe this horrible situation as fentanyl poisoning.
Recently, I met another mother—Trisha. Trisha told me about her son Keith, who struggled with an addiction that led to his involvement with the criminal justice system. When Keith was incarcerated for a crime and awaiting disposition of his case, he went through withdrawal, a painful experience that many drug users experience during incarceration. He requested medication assisted treatment and access to a program upon release to support his recovery. But he was in a jail that offered neither. When released to his parents, he surrendered his phone and said he wanted to get help and stay clean. He could not, however, resist the temptation to use again and he contacted a drug dealer using an interactive video game console. Like many struggling with addiction after leaving jail, he took what previously was a normal dose of fentanyl for him and died because his system lost its prior tolerance for the drug during his time of detox.
How Did We Get Here?
The opioid crisis, which continues to devastate so many families and communities, is 25 years in the making. It started in the boardroom and, in particular, with Purdue Pharma. That company and others pushed opioid prescription pills through deceptive and misleading marketing campaigns. The campaigns focused on physicians who over-prescribed, falsely suggesting drugs as not addictive. This led to easy and wide availability of dangerous drugs. As a result, millions became addicted, and their lives were harmed or destroyed.
Over the last four years, our Department held accountable those bad actors who pushed out prescription pills and fueled our nation’s opioid epidemic. One important response to this epidemic was to restrict the flow of these addictive prescription pills. But restrictions on these pills were not coupled with an increase in the availability of drug treatment and recovery options. As a result, drug cartels moved in to fill this vacuum with synthetically produced opioids such as fentanyl. Today, cartel-trafficked fentanyl flows into our communities—a supply chain that must be stopped.
Former U.S. Attorney Jason Dunn and I highlighted in a guest column last year that fentanyl is 100 times more potent than morphine and 50 times stronger than heroin. Many take this drug and are unaware they are ingesting it. This is because victims like Braden purchase counterfeit versions of prescription pills like Xanax, generic oxycodone, and Adderall—that contain deadly fentanyl. Moreover, we are increasingly witnessing deaths from fentanyl when it is placed in other widely used illicit substances, including heroin, cocaine, and methamphetamines. This means more people struggling with addiction are at risk of dying by drug overdose if they don’t receive treatment.
Estimates on our current level of drug treatment capacity vary, but it is fair to say that we have far too little available. We must do much more for those seeking treatment services.
Without more resources, far too many Coloradans will continue to struggle with their addiction due to stigma and a lack of treatment and recovery options. To provide more treatment and recovery services in Colorado, our Department secured $400 million in settlement dollars for our communities via a framework with every county and region in our state. But this investment is only a start.
How Should We Respond?
We must act quickly to respond to this crisis and create pathways for saving lives. HB 22-1326 is a comprehensive bill that addresses this crisis through public health, education, prevention, harm reduction, and law enforcement strategies. This may not be a perfect bill that achieves universal support. It does, however, provide valuable tools and critical resources at a time when we need it most. I’m very grateful to Senator Pettersen and Senator Cooke, as well as Representatives Garnett and Lynch, for their leadership in tackling this problem and for their partnership.
At a high level, there are several components of the bill I want to highlight. First, the dedication of resources to education and prevention is essential. We continue to learn of overdoses by those who unknowingly ingest the substance or children who come into contact with fentanyl after adults leave pills within reach. By informing the public of the extreme dangers of this substance, including how to identify it, this bill promises to save lives. Our Department looks forward to supporting and collaborating with those seeking to protect the public through education on this risk.
Second, the inclusion of greater penalties for those who deal fentanyl is essential for law enforcement to arrest and prosecute those who sell this poison. Importantly, the bill makes the crime of distributing fentanyl resulting in a person’s death a level one drug felony. Fentanyl is an incredibly deadly opioid and our criminal laws must reflect the heightened risk of death that dealing this drug poses. The unlawful distribution of fentanyl in the form, for example, of a counterfeit Xanax pill is, in effect, a poisoning. Those responsible for deaths by poisoning should be held accountable. In Braden’s case, for example, the only reason that such a prosecution took place is because the federal prosecutors—who have such a charge available to them—took on his case and held the person responsible for his death accountable.
Third, HB 22-1326 provides millions in funding for harm reduction resources and behavioral health services. These are sound public health strategies and resources that must be deployed to ensure we comprehensively address the fentanyl crisis.
It merits note that the first chamber made two key improvements that I’ve previously stressed should be made to address the fentanyl crisis.
One, we must devote significant resources to interrupt the supply chain of fentanyl. By preventing fentanyl from reaching our state and removing pills before they ever reach the street, we can save thousands of lives. Take, for example, a trafficking ring in which my department partnered with 17th Judicial District Attorney Brian Mason and federal law enforcement. By working together, our team confiscated 77,000 fentanyl-laced counterfeit oxycodone pills as well as hundreds of pounds of methamphetamine, heroin, and cocaine. By removing this magnitude of pills from the supply chain before they reached the public, this work undoubtedly saved lives. By working with family groups and the House sponsors, we crafted an amendment that was added in the House to strengthen the bill by adding trafficking, investigation, and supply chain interruption tools. This amendment ensures new resources for law enforcement agencies and DAs to further bolster this work, and it significantly strengthens the bill before you today.
And second, the House’s inclusion of language updating the state’s drug possession laws to account for the deadliness of fentanyl is a necessary improvement to the bill. Due to its potency, fentanyl kills people at rates far greater than heroin or cocaine. Four grams is simply not a user-level of fentanyl. Changing the legal threshold to allow a felony charge for someone possessing any level of pure fentanyl and lowering the gram level for fentanyl compounds is a needed update to our criminal code. I believe this can be done in a way that, with the state’s DAs, creates more tools for holding accountable those who deal this deadly poison in our communities without incarcerating or placing permanent felony records on those struggling with addiction.
But the bill’s approach to possession needs further improvement.
- First, regarding possession of pure fentanyl, I recommend the Committee consider removing the trigger for its possession to become a felony. The current draft doesn’t allow this section to take effect until certain equipment and testing technology exists and is held by the CBI, which is now more likely given the trafficking and investigations amendment we worked to include in the House. Testing solutions will continue to evolve and, in all events, the burden is on prosecutors to demonstrate that an individual possessed a substance that is pure fentanyl (or at least 60% fentanyl, as provided for in the bill). Removing this trigger language to allow this section to take effect on the bill’s signature is appropriate.
- Second, regarding possession of fentanyl compounds, the House included a requirement—a threshold showing that a person possessing the drug “had reasonable cause to believe” the presence of fentanyl. Under current law, prosecutors must already prove that a defendant knowingly possessed a controlled substance unlawfully. But the House added a second mental state for also knowing the fentanyl purity level or mixture of drugs. Adding this new element makes it much more difficult to prove that the individual possessing the drugs has committed a crime; as a result, this change makes it far less likely that a DA may hold those with non-user level amounts of fentanyl accountable. To avoid this result, the mental state assigned to this possession crime should be the same as that assigned to all other drug possession laws.
It is imperative that we address this crisis in a holistic manner now. If we fail to act, not only will the fentanyl crisis become worse, but we will also be overtaken by the next opioid crisis already on the horizon, opioids that are 1.5 to 40 times more potent than fentanyl and are already causing deaths across the U.S. and Canada. We must use all tools and resources we can muster to address this crisis and prevent the next one.
I recognize that the members of this Committee and the sponsors are working hard to address a challenging and critical issue. Thank you for your commitment to that work with the goal of saving lives. And I appreciate the level of citizen engagement on this topic, realizing that everyone here and all experts involved in this conversation—from public health, law enforcement, and those with lived experience—are focusing on how we save lives and learn from tragedies like what happened to Braden and Keith.
Thank you for the opportunity to submit these comments to you today. I appreciate your consideration and am happy to answer any questions the Committee may have.