Colorado Lawmakers move forward with Fentanyl Accountability Bill

According to a recent report, a rising number of deaths in the US continue to come from overdoses involving fentanyl. This alarming trend is particularly concerning for vulnerable populations such as those with co-occurring mental health and substance abuse disorders.

Fentanyl Deaths on the Rise

According to recent data from the Centers for Disease Control and Prevention, US deaths involving synthetic opioids, largely fentanyl, rose to approximately 71,000 in 2021 from 58,000 in 2020.

Fentanyl is a white powder, making it easy to combine with other drugs, including opioids like heroin. The drug can also be added to substances like methamphetamines and cocaine and made into counterfeit pills for anti-anxiety drugs like Xanax. Such combinations can be deadly if a user is unaware that they are taking fentanyl or are unsure of the dose.

Dually Diagnosed Individuals at Increased Risk of Fentanyl Overdose

Dual diagnosis is a term used to describe a person diagnosed with a mental illness and substance use or abuse and disorder. Over 50% of persons with serious mental illness also have a substance use or abuse disorder. Dual diagnosis is sometimes referred to as co-occurring disorders or comorbidity. According to the National Survey on Drug Use and Health, in 2020, 17 million US adults simultaneously had a mental illness and substance abuse disorder.

Recent research has revealed that “those with mental disorders appear to be at increased risk of intentional and unintentional fatal and non-fatal opioid overdose, with both prescription and non-prescription opioids.” These overdoses have been found to exist in a wide variety of subpopulations.

Depending on the individual’s diagnosis, symptoms, and course of treatment, dually diagnosed individuals using illegal substances may not be in a state of mind to assess risk, thereby inhibiting their ability to protect themselves from a fentanyl-related overdose. Additionally, research indicates that individuals struggling concurrently with mental disorder and opioid use experience higher levels of complexity in symptoms, face more pronounced exclusion, require more integrated treatment, have poorer outcomes, and incur higher costs.

Colorado’s “Fentanyl Accountability Bill”

After months of debate between Colorado lawmakers, harm reduction advocates, and law enforcement groups, Colorado Governor Jared Polis signed the “fentanyl accountability bill” (HB22-1326) into law. The new law creates tougher penalties for fentanyl possession. However, it also provides some funding for drug treatment, harm reduction, and other related services.

In effect, HB22-1326 lowered the threshold amount for felony possession of fentanyl or drugs that have been combined with fentanyl. The new law will make it a felony to possess more than one gram of fentanyl compound/mixture.

Further, first-time offenders could get up to six months in jail and two years' probation. However, unlike other felonies, those convicted for the first time of this offense would not be sent to prison. In addition, if a convicted person completes their probation and court-ordered substance abuse treatment, their charge can be reduced to a misdemeanor on their record.

Treatment Options and Prosecutorial and Judicial Discretion

Although ordering a fentanyl offender to attend substance treatment is an option, according to a recent report, treatment is not equally available across the state. Further, individual prosecutors and judges will have discretion over how to apply the felony. Consequently, people in different communities may face vastly different consequences for fentanyl possession. It is also unclear how this disparity will impact dually diagnosed individuals.

Harm Reduction

Although the new law provides harsher penalties for those in possession, it also requires that county jails offer medication-assisted treatment by July 2023. Jails will also have to assess those arrested for substance abuse disorder and may have to prescribe those individuals medications like buprenorphine or methadone. Cities and counties must also work with managed care organizations to provide detox and stabilization services. The state is also required to study fentanyl and several related topics. However, the new law does not mention how local governments and these entities will incorporate mental health initiatives for those who are dually diagnosed.

Addiction and Mental Health

When an individual is dually diagnosed, they can suffer from symptoms that interfere with their ability to function, cope with stressors, and assess risk. Further, mental health and substance abuse disorders impact one another. When a mental illness goes untreated, individuals with substance abuse disorders often increase their use of drugs or alcohol. As substance abuse increases, mental health issues usually increase as well. For those who are using drugs such as heroin, cocaine, and methamphetamines to self-medicate for mental health symptoms, the risk of encountering fentanyl is likely to increase.

The Criminal Justice System and Dual Diagnosis

According to recent research, dually diagnosed patients perpetrate crime more often than healthy individuals. Further, those with serious mental illnesses such as schizophrenia, anxiety disorders, major depression, and bipolar disorder have a high comorbidity with substance abuse disorders. Consequently, “the legal corepercussions and destabilizing effects of drug and alcohol use on the course and treatment of psychiatric illness, many individuals with a dual diagnosis become involved in the criminal justice system.”

Increased penalties for fentanyl possession, such as those in the new Colorado law, could adversely impact this group and lead to more arrests and convictions. Once incarcerated, these individuals often become more symptomatic and have less favorable outcomes due to a lack of mental health and substance abuse treatment in jails and prisons.

If you or a loved one has a mental disability and has been arrested or convicted of a crime, you need an experienced criminal defense attorney on your side. Elizabeth Kelley specializes in representing individuals with mental disabilities. To schedule a consultation, contact us or call (509) 991-7058.

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