The Criminal Legal System Response to Deaths from a Toxic Unregulated Drug Supply and Drug Overdose

"The opioid overdose epidemic continues to evolve in the United States (US). While the epidemic began with prescription opioids in the 1990’s, it evolved to consist largely of heroin by 2010, and synthetic opioids by 2013, driven by high-potency illicitly manufactured fentanyl and fentanyl analogs (Centers for Disease Control and Prevention, 2023). By 2019, half of the 70,630 drug overdose deaths in the US involved synthetic opioids; from 2013 to 2019, the age-adjusted synthetic opioid-involved death rate increased 1,040% from 1.0 to 11.4 per 100,000 (Mattson et al., 2021). From 2018 to 2019 alone, Colorado, the setting for this study, experienced the largest relative increase in the age-adjusted synthetic opioid-involved death rate of any state (95.5%). Further, in 2022, Colorado’s drug overdose death rate was 29.8 per 100,000, and has continued to climb annually, with fentanyl-involved deaths increasing 18.4% in 2023 (Centers for Disease Control and Prevention., n.d.).

"Criminal penalties have long been a tool used to combat the overdose epidemic with more individuals being arrested for drug offenses than any other offense type in 2019, accounting for 1 in 10 of all arrests (Horowitz et al., 2022). However, increased criminal legal penalties - such as assigning felonies as opposed to misdemeanors for drug possession - are not associated with reductions in drug use or recidivism, but with worsened health and well-being, reduced job and housing opportunities, and increased risk of non-fatal and fatal overdose post-release from incarceration (Gelb et al., 2018; Wildeman & Wang, 2017). Further, these penalties, and their effects on health, employment, and housing, are applied in a racially disparate way. While Black individuals made up 12% of the US adult population in 2019, they accounted for 27% of drug-related arrests (Horowitz et al., 2022).

"In the midst of the growing and evolving overdose epidemic, many states have introduced legislation to increase criminal penalties for drug possession, particularly fentanyl possession (Hill, 2023). In May of 2022, Colorado passed House Bill (HB) 22-1326, The Fentanyl Accountability and Prevention Bill. The bill was signed into law in July 2022, with key components taking effect at that time. One such component was that the bill increased penalties for possessing drugs weighing 1–4 g that knowingly contain fentanyl from a misdemeanor to a felony (Fentanyl Accountability And Prevention, 2022). Misdemeanors in Colorado may not include an incarceration sentence but can include a sentence in jail (a county-run facility where individuals are often held pre-trial or when sentenced for less than one year) whereas felonies are more serious and are more likely to result in a prison sentence (a state-run facility where individuals are often incarcerated when they receive a sentence to one or more years) (McCann, 2024)."