Prosecutions of drug dealers who sell fatal doses of fentanyl remain scarce in Colorado nearly a year after state lawmakers enacted harsher penalties for fentanyl sales that end in death.
Since the law became effective July 1, Colorado prosecutors have filed nine cases against people suspected of dealing fentanyl that killed someone, court data shows. In that same time, at least 611 Coloradans have died of fentanyl overdoses, state health data shows.
During the debate over the 2022 bill, prosecutors and law enforcement officials said the creation of a criminal charge of fentanyl distribution resulting in death would give them another needed tool to stem the flow of the synthetic opioid into communities and hold dealers accountable.
Families of people who died of fentanyl also asked for change and criticized police for not investigating their loved ones’ dealers under existing drug distribution laws.
But criminal cases under the new law remain rare. Only three of the state’s 22 district attorneys have filed cases. Law enforcement officials say they are overloaded by the sheer number of fentanyl deaths and prosecutors note the cases are complex and often require many resources to prove who sold the exact drug that killed someone.
“I hope that as more agencies become more committed to this that it becomes more widespread,” said Fourth Judicial District Attorney Michael Allen, whose office has filed four cases of fentanyl distribution resulting in death — the most in the state.
Despite the minimal use of the 2022 statute and research that shows the severity of punishment does not impact drug use or sales, lawmakers are considering expanding the law to apply to overdose deaths from all drugs. The bipartisan bill, SB23-109, passed out of the Senate and will next be considered by the House Judiciary Committee.
The state’s law enforcement and prosecutors support the bill, arguing it will deter drug use and sales. But mental health experts, addiction treatment providers and harm reduction advocates oppose the bill, arguing that increasing criminal penalties does not deter drug use and tying criminal charges to overdose deaths can deter people from calling 911 for help.
“A tool to what end?” said Taylor Pendergrass, director of advocacy at the American Civil Liberties Union of Colorado. “Whether prosecutors are able to prosecute nine people for drug-induced homicide or 90, it will do nothing to impact the supply of drugs or the sale of drugs”
Long, complex investigations
The 2022 law, HB22-1326, made it a level-one drug felony to distribute fentanyl that kills someone. Level-one drug felonies carry maximum sentences of up to 32 years in prison and a fine of up to $1 million.
Federal law already included a charge of distribution resulting in death, but law enforcement and prosecutors said there were not enough resources at the federal level to handle all the overdoses in Colorado.
Of the state’s 22 judicial districts, prosecutors in three have filed cases of fentanyl distribution resulting in death: four in El Paso County, three in Larimer County and one each in Douglas and Arapahoe counties, which are represented by the same district attorney.
The victims included a 24-year-old who moved to Colorado to fulfill her dream of living near the mountains, a 44-year-old avid Rollerblader, a 31-year-old welder who loved his dog, and three teenagers — ages 14, 15 and 18.
Investigators often used the victims’ phones and social media accounts to connect the deaths to dealers. Two victims used Snapchat to communicate with their suppliers. Police also used monitored drug purchases by undercover officers, GPS trackers and surveillance to solidify their cases.
“In a lot of ways it’s really just a drug distribution case,” Allen said.
None of the nine cases have gone to trial yet and all remain open.
Opponents of both the 2022 law and the 2023 bill said harsher criminal punishment for dealers is not an effective method to stop drug use. Research shows that the severity of a potential punishment does not work as a deterrent to drug use or sales, though the certainty of getting caught can.
Lawmakers repeatedly stated people who use drugs need treatment and people who deal drugs need punishment — but advocates say those people are often one and the same.
“They target people with substance-use disorders who use drugs and deserve care, just like the person who died,” said Jennifer Dillon with the Colorado Drug Policy Coalition.
At least four of the nine defendants also struggled with addiction, court records show. The girlfriend of one of the defendants said she and the defendant “do drugs and basically sell drugs in order to obtain more drugs.”
“There’s too many of them”
One of the challenges of investigating fentanyl deaths is the overwhelming number of them, law enforcement officials interviewed for this story said.
At least 916 people died of fentanyl in Colorado last year — more than 10 times the 81 people who died of the drug in 2017. Fentanyl deaths outpaced the number of Coloradans who died in homicides or car crashes last year, though state health data shows the meteoric increase in fentanyl deaths may be leveling off. After years of rapid increase, Colorado only recorded four more fentanyl deaths in 2022 than in 2021, according to provisional data provided by the Colorado Department of Public Health and Environment.
“Just because of the sheer volume we really do have to respond to specific ones,” said Denver police Cmdr. Paul Jimenez of the strategic investigation bureau, which includes the fentanyl overdose investigation unit. “There’s too many of them for the number of detectives we have.”
Despite the creation of a five-detective fentanyl overdose investigation unit, Denver police have not yet brought any cases of fentanyl distribution resulting in death to prosecutors. At least 146 people have died of fentanyl in Denver since the law went into effect. Since the department stood up the unit in February, detectives have investigated 67 fentanyl deaths.
Denver police triage fentanyl deaths and focus on cases where they think they will have the highest likelihood of success. They will also prioritize juvenile victims or cases involving multiple deaths, Jimenez said.
“If we don’t have witnesses and we don’t have a phone, that case is unlikely to go anywhere from an investigation perspective,” he said.
Most cases require multiple search warrants, law enforcement officials said. The toxicology reports that are needed to prove the person died of a fentanyl overdose can take weeks to complete. Data downloads from victims’ phones can take weeks, as can sifting through hundreds of text and social media messages.
In one filed case in Larimer County, investigators needed a wiretap, a GPS tracker, a phone extraction, cellphone tower records and hours of in-person surveillance to make an arrest. The investigation took five months.
Seven of the nine filed cases took more than a month between the overdose and the filing of the charges. Two cases took more than five months.
Even if a phone is recovered, prosecutors have to prove beyond a reasonable doubt that a suspect sold the exact pill that killed the victim. Many people have multiple dealers, said Denver police Sgt. Jeffrey Masciangelo, who heads the fentanyl unit.
“There are so many sources of fentanyl out there that identifying a specific dealer that sold the drugs that killed the victim is very challenging,” said 17th Judicial District Attorney Brian Mason, who represents Adams and Broomfield counties.
That’s what kept prosecutors from charging anyone in connection to the overdose deaths of five people in a Commerce City apartment last year, he said.
“It’s not a one-size-fits-all solution — and I never expected this to be the solution to the fentanyl crisis,” Mason said.
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