Colorado Evidence Analysis of the 2026 Ballot

Initiative 85: Penalties for Fentanyl Crimes


Why this Report?
Ballot measures reach voters through the General Assembly, known as referred measures, or when citizens initiate measures. Leading up to election day, Colorado voters typically receive information from the Blue Book voting guide, which provides a nonpartisan summary of the measure, and from supporters and opponents of these ballot measures through paid media and direct voter contacts. Each side makes claims about the positive or negative consequences that will result if the ballot measure is passed. Many of these ballot measures have significant consequences. But too often missing from the public discussion is an objective analysis of the evidence behind the supporters’ and opponents’ claims about the impact of the measures.
This report and other Romer Institute ballot measure reports are designed to fill that gap by equipping voters with the best available, unbiased information to make their decisions.
Fentanyl deaths in Colorado began rising in 2018 and accelerated sharply in the early 2020s, peaking in late 2023. Deaths then fell by 14 percent in 2024 before the decline reversed. In 2025, Colorado was one of only three states where overdose deaths rose 10 percent or more while deaths nationally fell by nearly 14 percent. More than 1,700 Coloradans died of drug overdoses in 2025, according to state data, and fentanyl remains the leading driver of those deaths. Initiative 85, on the November 2026 ballot, responds to that toll by increasing criminal penalties for fentanyl offenses.
This report explains what the measure would do and what the research says about its likely effects. It makes no recommendation. Some of what a voter needs to know here is settled. Much of it is not, and this report says which is which.

What the Measure Would Do?
Selling, making, or distributing any amount of fentanyl would become a level 1 drug felony, Colorado’s most serious drug offense, carrying a mandatory sentence of 8 to 32 years. Possession penalties would rise. Possession of one gram or less would become a new treatment-mandated felony, and a person who completes treatment could have the conviction vacated. Three current protections would end: immunity for people who call 911 at an overdose scene involving fentanyl distribution, the option to reduce certain possession felonies to misdemeanors after treatment, and an exemption from habitual-offender sentencing for people with prior drug possession convictions.

What the Evidence Shows?
Treatment works, and it is the best-supported provision in the measure. Medication-based treatment for opioid use disorder substantially reduces drug use and cuts post-release overdose deaths. One statewide correctional program reduced post-release overdose deaths by roughly 60 percent. The measure’s treatment-mandated felony could put more people on that path. Whether it does depends on capacity. Implementation of Colorado’s jail treatment mandate is still incomplete in parts of the state largely due to a lack of funding, and the measure would add hundreds of people a year to the pool requiring court-ordered treatment.
Tougher penalties have real effects, but the causal connection to fewer deaths is unproven. Long sentences deter some repeat offenders, and a convicted distributor in prison is not selling. Those effects are documented. What is not documented is the next link. No study has shown that raising state-level fentanyl distribution penalties reduces trafficking or overdose deaths. Fentanyl’s potency means a very large number of doses occupies a very small volume, which makes supply disruption harder than it was for plant-based drugs.
Colorado’s own recent experience is the closest available test, and it did not show gains. The 2022 fentanyl law raised possession penalties. Evaluations found no clear reduction in overdose deaths and no clear improvement in treatment access. That law changed different provisions than several of the ones in this measure, so the comparison is imperfect.
Removing overdose-reporting immunity carries a documented risk. People who witness an overdose often do not call for help because they fear arrest. States with arrest-protection Good Samaritan laws have generally seen lower overdose mortality, with estimated reductions in the range of 9 to 11 percent, though one credible study found no effect. Initiative 85 would remove that protection for fentanyl distribution offenses.
Holding sellers responsible for a death is a question of justice, and research cannot settle it. The measure would expand liability for distribution that results in death. Whether a person who sells a fatal dose should answer for that death is a moral and legal judgment, and it is a serious one. We do not treat it as an empirical question, because it is not one. The empirical question is narrower. Does this liability deter, and does it lower overdose deaths across a population? On that, the evidence is thin. The largest study, covering 42 prosecutorial districts in North Carolina, found no statistically significant relationship between drug-induced homicide charges and overdose deaths. Research in other states finds that roughly half of these prosecutions reach friends, partners, and family members of the person who died rather than commercial suppliers. That is worth knowing whichever way a voter comes out on the accountability question.

The Bottom Line
Initiative 85’s treatment element is supported by the strongest research in this report. The penalty provisions rest on general deterrence and incapacitation research that has not been tested for fentanyl specifically. Colorado’s 2022 fentanyl law, the closest available comparison, did not show clear reductions in overdose deaths, though that law mainly changed possession penalties, so it is an imperfect test of this broader measure.

Executive Summary

On the Ballot in 2026: Initiative 85

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Initiative 85 on the November 2026 ballot would change Colorado’s penalties for fentanyl-related crimes.

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Who

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This is a citizen-initiated measure sponsored by Suzanne Taheri and Michael Fields through the West Group. The West Group is a legal and government affairs firm. Michael Fields is the President of Advance Colorado.

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What

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Initiative 85 increases criminal penalties for certain fentanyl and synthetic opiates offenses including:

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·       making distribution, manufacturing, dispensing, or sale of any amount of synthetic opiates a level 1 drug felony instead of basing drug felony penalties on the amount of synthetic opiates involved;

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·       increasing possession penalties, and requiring treatment in some cases;

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·       removing certain provisions related to overdose-reporting immunity and the ability to vacate a felony possession conviction and replace it with a misdemeanor; and

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·       reinstating repeat criminal punishment provisions for certain drug felonies.

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Why

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Citizen-initiated measures require a petition verified by the Secretary of State’s office. To qualify for the 2026 ballot, the measure required 124,238 valid signatures, including at least 2% of registered voters in each of Colorado’s 35 state senate districts. Proponents submitted 187,699 petition signatures on November 20, 2025, and the Secretary of State certified the measure for the November 3, 2026, ballot on December 15, 2025.[1]

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[1] Colorado Secretary of State, “Proposed Initiative #85 Qualifies for General Election Ballot,” press release, December 15, 2025, https://www.sos.state.co.us/pubs/newsRoom/pressReleases/2025/PR20251215Initiative85.html.

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The report draws on three categories of sources, each with different strengths. Grouping them makes clear when a finding rests on objective data, on cross-state rankings, or on the perspective of an interested party.

  • Tier 1 — Independent government and academic data: U.S. Census/ACS, CDC, CMS, the Congressional Research Service, KFF, the Colorado Health Institute's Colorado Health Access Survey, and administrative data from HCPF, the Division of Insurance, and CIVHC's all-payer claims database.

  • Tier 2 — National rankings and cross-state indices: the Commonwealth Fund State Scorecard and independent composite rankings, useful for benchmarking but dependent on their own weighting choices.

  • Tier 3 — Colorado stakeholder sources: the Colorado Hospital Association, insurers, provider associations, and consumer and patient advocates, identified as such and calibrated against their interests.

Table 1. Cross-source agreement by finding, with supporting sources named
Finding Tier 1: independent government, academic, and nonprofit research Tier 2: rankings and composites Tier 3: Colorado stakeholder Confidence
Colorado covers ~94% of residents CHAS 2025; Census ACS 2024 Commonwealth Fund 2025 Connect for Health CO High
System performs well overall; access is the weaker domain HRSA shortage-area data; Chartis; HCPF network adequacy Commonwealth Fund (10th); MoneyGeek composite (commercial) CO Rural Health Center High
2026 federal changes raise premiums and reduce coverage DOI final 2026 rates; CRS; CBO n/a Connect for Health CO; CO Assn. of Health Plans High
Medicaid faces major fiscal risk under H.R. 1 HCPF; JBC; CBO; RAND; KFF n/a CHA; CCLP High (modeled range)
Underinsurance and medical debt burden the insured Commonwealth Fund survey; Urban Institute n/a CCLP; safety-net providers Moderate-high (mostly national)
Coverage losses track eligibility-processing capacity HCPF unwind reporting; KFF n/a CCLP Moderate-high
Provider consolidation raises prices GAO; Georgetown CHIR; HCPF facility-fee report n/a CHA (disputes conclusions) Moderate-high (contested)
Behavioral health mid-transformation with capacity gaps HCPF network adequacy validation; DOI parity report n/a BHA; providers Moderate
Scale of future coverage loss is uncertain CBO; RAND; HCPF (ranges differ) n/a Varies by sector Low-moderate
Medicaid spending growth outpaced enrollment and state revenue, with documented integrity gaps HCPF/Manatt MISO; HHS OIG audit; JBC n/a ABA providers (dispute remedy, not spending data) High (growth); moderate-high (scale of integrity failures)

Confidence convention: High = the finding is supported by at least two independent Tier 1 sources and is not contradicted by other tiers. Moderate-high = supported by Tier 1 evidence that is partly national rather than Colorado-specific, or contested by an interested party on interpretation rather than on the underlying data. Moderate = supported by a single Tier 1 source or chiefly by administrative reporting. Low-moderate = estimates diverge materially across credible sources. Named sources are those the report cites for the finding; where a stakeholder disputes a finding, that is stated rather than averaged away.

Tier 2 note: the MoneyGeek composite is published by a commercial personal-finance and insurance publisher and is used only as a secondary cross-check; the access finding rests on the primary measures in the Tier 1 column.

The converging federal and state changes analyzed in this report are summarized in Table 2. Projected effects are estimates and should be read as ranges.

Table 2. Federal and state changes reshaping Colorado's coverage and costs, 2026-2027
Change Timing Who is affected Projected effect State response
Enhanced premium tax credit expiration Jan 2026 ~225,000 subsidized marketplace enrollees Net premiums ~+101%; ~75,000 may drop coverage Colorado Premium Assistance; reinsurance
Colorado Premium Assistance 2026-2027 176,000+ customers below 400% FPL ~$10.6M/month; avg net premium ~$131/month HB25B-1006; extended through 2027 by SB26-178
Reinsurance (state-funded for 2026) 2026 Individual market Reduces premiums 21.3% statewide (more rural) Fully funded by HB25B-1006
H.R. 1 work requirements Jan 2027 ~375,000 expansion adults (pre-exemption) Coverage loss mainly via administrative churn Screening tools; outreach
Six-month redeterminations Dec 2026 ~375,000 expansion adults Added churn; effect may be modest Quarterly income checks already in place
Immigrant eligibility limits Oct 2026 / Jan 2027 ~7,000 lawfully present immigrants Loss of Medicaid/CHP+/marketplace help Limited state options
Provider-fee reductions FFY 2028 Medicaid financing (CHASE; 427,000 covered) $900M-$2.5B annual loss by FFY 2032 Constrained by TABOR
Rural Health Transformation funds FFY 2026-2030 Rural hospitals and providers +$50B federal nationally; CO $200M+ first tranche Apply for and deploy funds

Appendix: Sources and Methodology

Source Categories

Sources fall into three tiers (see Evidence Base). Tier 1 (independent government and academic data) includes the U.S. Census/ACS, CDC, CMS, the Congressional Research Service, KFF, the Colorado Health Access Survey, and administrative data from HCPF, the Division of Insurance, and CIVHC. Tier 2 (national rankings) includes the Commonwealth Fund State Scorecard and independent composite rankings. Tier 3 (Colorado stakeholder sources) includes the Colorado Hospital Association, insurers, provider associations, and consumer and patient advocates, each identified and calibrated against its interests.

Peer-State Benchmarking

Colorado is compared with Arizona, Nevada, New Mexico, Utah, and Washington, selected for shared regional geography, overlapping rural and workforce challenges, and a range of policy approaches, plus the national average. Cross-state comparisons rely on consistent-methodology sources (Census/ACS, CDC, CMS, Commonwealth Fund) rather than Colorado-specific surveys, which is why some Colorado figures differ.

Key Informant Interviews: Method and Limitations

Qualitative evidence in this report comes from a structured key informant process. Informants were selected to span government, provider, payer, and consumer perspectives on the questions the report examines, and responded in July 2026 in writing to a common set of open-ended questions tailored to each informant's sector.

Three conventions govern how this material is used. Informants are identified by sector rather than by name, because responses were given on that basis. Each is an interested party — advocacy organizations, hospital representatives, and clinic operators all have institutional stakes — and their statements are treated as informed perspective calibrated against those interests, not as independent verification. And a claim made by a single informant is attributed as such in the text, rather than described as a finding; no assertion in the Executive Summary or in Table 1 rests on interview evidence alone. Where informants made factual claims, those claims were checked against documentary sources before use, and several were not carried forward because they could not be substantiated.

Limitations and Level of Evidence

Coverage figures from the 2025 CHAS predate the 2026-2027 federal changes and are self-reported and biennial. Claims data from CIVHC lag one to two years and omit the uninsured, most federally insured residents, and some self-funded plans. Federal-impact figures are modeled estimates that depend on implementation and CMS guidance and should be read as ranges; the 2026 premium figures are DOI final rates and Connect for Health Colorado projections that vary widely by age and geography. Coverage, enrollment, premium, and budget figures rest on strong primary-source evidence; projected federal impacts and the fault-line characterizations carry more uncertainty. The fault-lines and policy-considerations sections should be read as the current state of the evidence rather than as settled conclusions, and they will be updated as further interview evidence is incorporated. Two further limitations should be noted. First, several national findings — on underinsurance, medical debt, and provider consolidation — are drawn from national datasets and applied to Colorado where state-specific equivalents do not exist; they are labeled accordingly. Second, a small number of premium and carrier-count details are drawn from commercial insurance-brokerage compilations of marketplace data; these are used only for illustrative price levels, never for the report's material findings, which rest on Division of Insurance and Connect for Health Colorado sources. Per-capita spending comparisons use the CMS State Health Expenditure Accounts, whose most recent vintage is 2020 and therefore predates the period this report examines.

Key Terms Used in This Report

  • Health First Colorado — Colorado's Medicaid program; ~1.24 million members as of May 2026.

  • CHP+ — Child Health Plan Plus; low-cost coverage for higher-income children and pregnant people (>93,000).

  • Connect for Health Colorado — the state's individual insurance marketplace (exchange).

  • Colorado Connect — companion platform serving undocumented residents through OmniSalud.

  • Colorado Option — state-standardized plans with premium-reduction targets and a rate-setting backstop.

  • Colorado Premium Assistance (CPA) — state-funded premium subsidy for marketplace customers below 400% FPL; extended through plan year 2027 by SB26-178.

  • ACC / RAE — Medicaid’s Accountable Care Collaborative and its four Regional Accountable Entities.

  • LTSS — long-term services and supports; ~5-6% of Medicaid members but ~45% of spending.

  • CHASE — Colorado Healthcare Affordability and Sustainability Enterprise; the hospital provider fee manager.

  • Enhanced PTC — enhanced federal premium tax credits; expired December 31, 2025.

  • H.R. 1 — the 2025 federal reconciliation law (P.L. 119-21).