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Colorado passed the in May 2022. The legislation made the possession of small amounts of fentanyl a felony, rather than a misdemeanor.

Felonies are more likely than misdemeanors to result in a prison sentence.

Time in prison is associated with an . People with felonies on their record often .

In 2023, passed legislation similar to Colorado's. They introduced more than 600 bills related to fentanyl criminalization and enacted over 100 other laws to attempt to curb the opioid epidemic.

Possession of small amounts of , and other criminalized drugs is also a felony in Colorado.

I'm an assistant professor of medicine, who studies . I am a member of the , which advocates for community rather than criminal-legal responses to behavioral health needs in Colorado. Recently, my work has focused on how increasing criminal penalties for fentanyl possession in Colorado affects the individuals and communities most impacted by such laws.

Our team conducted 31 interviews with Colorado policymakers, peer support specialists, law enforcement, community behavioral health providers and people providing behavioral health in prisons and jails to and the role of the criminal-legal system in addressing substance use and overdose.

Most of our interviewees agreed that criminalization alone wouldn't solve the opioid epidemic.

"You can't incarcerate yourself to sobriety," said a rural law enforcement officer. "You can't incarcerate yourself out of the drug problem in America."

Criminalization of drug use

Incarceration and substance use are deeply intertwined. The U.S. houses one-quarter of the world's incarcerated population—" of the 1980s. The war on drugs included and that lengthened sentences after multiple charges.

Today, one-fifth of the U.S. incarcerated .

Incarceration is often seen as a deterrent, but research shows it is not actually . Instead, people recently released from incarceration are and face a .

Perspectives of front-line workers

All 31 of the participants in supported policies to prevent fentanyl overdoses. However, most thought that use of police and incarceration as avenues to do so was misguided.

We spoke to some individuals who felt the bill was appropriate, but most felt that against people who use drugs. They also saw the law as ignoring the root causes of , which include a lack of . They also said the law creates stressful law enforcement encounters that can perpetuate drug use as a coping mechanism.

"It just seems like there's no getting away from [the police], they're everywhere," said an urban . "I got arrested by the same cops, I don't know how many times. And then it makes you want to try to be avoidant or run because they're not going to help you."

Participants worried that the policy , deterring individuals from calling 911 when an overdose occurs.

"Most people with substance abuse are not trying to report anything or get help for fear of going to jail," one rural provider said. "It's so stigmatized that everyone's just scared to do that."

Participants largely thought that counties were using incarceration as a and that it wasn't an ideal solution.

"(I) don't want to see (people) incarcerated, but I don't want 'em to die either," said an urban peer support specialist.

The people we interviewed pointed to a lack of community-based care options that could come before people are incarcerated. Those options include , and .

Substance use treatment

Colorado's fentanyl bill did more than just increase penalties. It also provided additional funding for and required that all jails provide medications for opioid use disorder.

These medications include , and . All are part of an established public health strategy shown to and . They're also shown to and .

However, and based in one's community play a large role in which medications are offered and to whom. For example, only with a in the community that can dispense methadone. Therefore, , or only offer medications to individuals with an active prescription or to certain populations such as pregnant people.

Investing in community solutions

Based on our study's findings, my study co-authors and I believe increased criminal penalties for linking individuals to treatment. Instead, there should be more investment in long-term community solutions.

One such solution is . The program sends behavioral health specialists to emergency calls to prevent legal involvement when someone is experiencing distress related to mental health, poverty, homelessness or substance use. In many cases, those individuals are then routed to services rather than jails.

Our findings also lead us to believe there is a need for more when it comes to fentanyl legislation, and that policymakers should work more closely with the people who will be most impacted by new legislation. Most of our participants agree.

"(I) don't think that (the) state realized how difficult it is," said a rural provider about giving medication-assisted treatment in jail, an increasing need as more people are arrested for fentanyl possession. "They probably should come here and visit us."

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