Harm Reduction or Criminalization: Two Opposing Legislative Approaches to Overdose Deaths

The state’s response to this overdose epidemic has become a contest between two schools of thought — criminalization of drugs and harm reduction. Across the political spectrum, Colorado legislators want to respond to the overdose epidemic. They have spent the past few months hotly debating both approaches, with some debates lasting until the early hours of the morning.

Democratic legislators have been more likely to support bills that promote harm reduction — practices that aim to keep drug users alive and healthy without requiring them to stop using drugs — while Republicans have favored a criminal justice approach. But this has not been an entirely party-line issue. A small number of moderate Democrats may align with Republicans to either pass criminalization bills or kill harm reduction bills.

Viewpoints on Criminalization

It’s not just conservative Republicans who support increased criminalization of drug use and possession. Many legislators say that Colorado should be doing anything possible to discourage substance use and that increased criminal penalties for possession will help. They sometimes use anecdotes to argue that arresting people with substance use disorders can effectively connect those people with treatment.

Even more legislators support stronger penalties for selling or giving away drugs based on the same theory — that criminalization equals deterrence. But others want stiffer penalties on drug sales because they see drug dealers as guilty of manslaughter or murder and therefore deserving of punishment.

Opponents of criminalization also have some varied underlying assumptions, but their arguments generally fall into one or more of several categories.

Some legislators and advocates argue that they would support criminalization if there was data proving it worked, but that the bulk of data shows that stricter criminalization does not decrease rates of either substance use or overdose. Some say that incarceration actively worsens the health of people who use drugs and increases their overdose risk. People who use drugs are disproportionately likely to die from an overdose in the weeks after leaving a prison or jail.

Others have argued that it is immoral to imprison people for nonviolent actions — especially for illnesses such as substance use disorders. When discussing penalties on drug sales, opponents say that many of the people arrested for dealing drugs are themselves drug users who are selling to friends and family or are selling drugs to use together or are selling drugs to sustain their own substance use.

Legislation on Criminalization

The legislature has considered two bills to strengthen criminal penalties on either drug sale or possession.

Senate Bill (SB) 23-109 would broaden existing law, which makes it a level 1 felony to sell any substance containing fentanyl if the person who uses the drug dies of an overdose. This bill would expand that law to make it a level 1 drug felony to sell any schedule 1 or 2 controlled substance, if that sale results in death. This offense generally carries a sentence of eight to 32 years in prison.

To assuage the concerns of some opponents, the sponsors amended the bill to grant immunity for anyone who calls 911 to report an overdose and remains at the scene until emergency responders arrive. It also exempts those who share drugs with others to use together, provided that the person sharing the drugs is not paid for the drugs they share. These amendments are meant to lessen the chance that those sharing drugs with friends or family are penalized under this law.

After lengthy debate, SB 109 passed the Senate when seven Democrats voted with Republicans. The bill’s future in the House, where Democrats hold a much larger majority, is uncertain.

House Bill (HB) 23-1164, Opioid Harm Reduction, would have criminalized drug possession, despite its title. Under current law, criminal charges for drug possession can be lessened if defendants can prove they did not know that their drugs contained fentanyl. This bill would have taken away that provision. The bill would have also created a $2 million fund to distribute naloxone to schools. This week, HB 1164 was postponed indefinitely in its first hearing in committee at the sponsor’s request. It would have faced a nearly impossible path to passage.

Viewpoints on Harm Reduction

Opponents of criminalization often favor another approach — harm reduction. Most harm reduction proponents say the approach gives power and autonomy to people who use drugs — and that years of data show that it works. This legislative session, proponents have argued that overdose prevention centers and Good Samaritan laws are evidence-based ways to reduce rates of fatal overdose. Overdose prevention centers, or supervised use sites, are monitored sites where people can use pre-obtained drugs, and staff will intervene if they see signs of an overdose. Good Samaritan laws provide criminal immunity on certain drug charges if people call 911 and stay at the scene when someone they are using with overdoses.

Many harm reduction advocates say that drug use will always occur, regardless of its legality, and that Colorado should work to decrease the risks of drug use for people who cannot or do not want to seek treatment or to stop using drugs.

Opponents of harm reduction often argue that harm reduction tactics enable people to continue using drugs and thus enable the risks associated with substance use disorders. They also argue that harm reduction policies signal implicit government acceptance of drug use, which may lead to increasing rates of drug use in the future.

Perhaps unsurprisingly, legislators who are most wary of harm reduction approaches tend to be the most supportive of increased criminal penalties.

Legislation on Harm Reduction

HB23-1167, Reporting of Emergency Overdose Events, expands Colorado’s existing Good Samaritan law. The current law provides immunity for certain drug possession, distribution, and use charges, if those calling 911 stay until emergency responders arrive. This bill will expand the cases for which people would receive immunity for possession and distribution charges. It would also expand the list of people who qualify for immunity from just the person overdosing and the person calling 911 to also include anyone else who helps respond to the overdose. Of the bills discussed, this one was the least controversial and is on its way to the governor to be signed into law.

HB23-1202, Overdose Prevention Center Authorization, is one of the most progressive harm reduction measures proposed in Colorado, and it has already faced controversy and long debates. This bill would allow local governments to authorize the opening of overdose prevention centers, or supervised use sites. In Colorado, Denver is the only city with plans to authorize an overdose prevention center. But the argument may be moot, because both remaining candidates for Denver mayor oppose overdose prevention centers.

These centers are generally considered cutting-edge, untested policy among American legislators. There are only two sanctioned overdose prevention centers in the U.S., both of which opened in New York City in 2021. Globally, however, there are more than 100 overdose prevention centers, and these centers have been operating in Europe for over 30 years. No one has ever died from an overdose in an overdose prevention center.

Many Republicans have particularly disparaged this bill as enabling drug use. HB 1202 passed the House after hours of contentious debate on both the data and underlying morality of overdose prevention centers. However, it faces a difficult path in the more moderate Senate. And if it passes the Senate, Gov. Jared Polis has signaled that he may veto the bill.

The Future of Substance Use Policy in Colorado?

This tension between harm reduction and criminalization is not new. Many of these same arguments and pieces of data were brought up during last year’s debate about HB22-1326, Fentanyl Accountability And Prevention, which ultimately passed despite opposition both from some Republicans and some Democrats. As long as rates of overdose remain high, this debate is likely to continue, particularly as data from the bill passed last year becomes publicly available. However, given Colorado’s recent trend to the left, future sessions may see more focus on harm reduction policies.