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
| Initiative 85 on the November 2026 ballot would change Colorado’s penalties for fentanyl-related crimes. | ||
Who | ||
| 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. | ||
What | ||
Initiative 85 increases criminal penalties for certain fentanyl and synthetic opiates offenses including:
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Background
| Fentanyl Use |
| Synthetic opiates are lab-made drugs that produce effects like pain relief and euphoria. They work similarly to drugs like heroin or morphine but are often much stronger. Fentanyl is the most prominent example and is up to 100 times more potent than morphine and about 50 times more potent than heroin, according to the Centers for Disease Control and Prevention. Even a tiny dose of fentanyl can be lethal, making accidental overdose a particular risk, including when fentanyl is mixed into other drugs. |
| In Colorado, illicit fentanyl use, overdose deaths, and arrests began to increase in 2018, accelerated sharply in the early 2020s, and peaked in 2023. Overdose deaths then fell steeply in 2024 before the decline reversed. Data from Colorado’s Vital Statistics Program show fentanyl overdose deaths in Colorado falling from 1,097 in 2023 to 761 in 2024, before rising to 980 in 2025, even as deaths nationally continued to fall. [2] In 2025, Colorado was one of only three states where total overdose deaths rose 10 percent or more, and state data show 1,765 overdose deaths for the year. |
| How the measure changes current law |
| Colorado established its current drug offense sentencing structure in 2013, creating tiered levels for both drug felonies and misdemeanors with penalties that generally increase based on the type and amount of drug involved. In 2020, Colorado reduced penalties for many low-level possession offenses, reflecting a broader move toward treating drug possession as a substance use and treatment issue rather than primarily a felony offense. In 2022, as fentanyl-related deaths spiked, lawmakers created fentanyl-specific penalties, increasing penalties for higher amounts of fentanyl, partially reversing the 2020 policies, and paired those changes with treatment, harm reduction, and prevention provisions. |
Under current law, fentanyl penalties follow the tiered approach: distribution, manufacturing, dispensing, sale, and possession with intent are punished more seriously than simple possession. Higher amounts carry higher felony levels, while lower-level possessions are treated less severely and, in some cases, are connected to treatment or other public health approaches, including overdose prevention. Current law [3] also includes overdose-reporting immunity protections designed to encourage individuals to seek medical help during a fentanyl-related emergency. |
The measure moves away from the tiered approach and applies more uniformly severe penalties to crimes involving fentanyl. Most significantly, any amount of fentanyl distribution, manufacturing, dispensing, sale, or possession with intent becomes a level 1 drug felony, Colorado's highest level drug felony, regardless of amount. Possession penalties also increase, and three current-law protections are removed:
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Proponents argue that fentanyl’s lethality justifies treating the distribution of any amount as a serious offense, since even a small quantity can contain many potentially fatal doses. They also argue that the certainty of a severe charge may change dealer behavior in ways that population-level studies are not designed to detect, and that pairing higher penalties with a treatment-mandated pathway holds people accountable while offering a path to recovery. |
Opponents argue that felony convictions and long mandatory sentences will fall largely on people struggling with addiction rather than on major traffickers, and that removing overdose-reporting immunity will discourage bystanders from calling for help when a life is at stake. They also point to the cost of expanded incarceration and court-ordered treatment, and to Colorado’s experience under the 2022 fentanyl law, as reasons to doubt the measure will reduce deaths. |
These are the central claims on each side, and the sections that follow test them against the available evidence. |
States vary widely in how they treat fentanyl offenses, and the measure would place Colorado closer to states that treat fentanyl as a high-penalty drug category. The table below shows how specific penalties and provisions change under the measure. |
| Fentanyl Activity/Legal Provision | Current Law | Proposed Under Initiative 85 |
|---|---|---|
| Distribution, manufacturing, dispensing, sale, and possession with intent | Penalties increase based on amount: not more than 4 grams → level 3 drug felony (2–4 years); more than 4 grams to 50 grams → level 2 drug felony (4–8 years); more than 50 grams → level 1 drug felony (8–32 years) | Any amount → Level 1 drug felony (8–32 years, mandatory) |
| Possession of not more than 1 gram | Generally a Level 1 drug misdemeanor (up to 18 months in jail) | Level 4 treatment-mandated drug felony (6–12 months in prison) |
| Possession of more than 1 gram and not more than 4 grams3 | Level 4 drug felony (6–12 months in prison) | Level 3 drug felony (2–4 years in prison) |
| Overdose-reporting immunity | Immunity from prosecution if a person reports an overdose, stays at the scene, identifies themselves, and cooperates with police — covers low-level fentanyl distribution (not more than 4 grams) in addition to possession | Removed for fentanyl distribution offenses, including the existing protection exempting low-level distributors from mandatory minimum sentencing when their conduct caused a death |
| Ability to reduce certain felony convictions | Certain fentanyl possession felony convictions may be vacated and replaced with a misdemeanor after successful completion of a community-based sentence | Removed |
| Habitual criminal sentencing | Individuals with certain prior fentanyl possession felony convictions are not subject to increased sentences that otherwise apply to repeat offenders | Reinstated — repeat offenders with three or more prior felony convictions could face sentences up to four times the normal maximum |
The table above shows statutory sentencing under Colorado law and the measure. Courts may also impose fines depending on the circumstances of the case. The table below provides information on the sentencing and fine ranges for each offense level referenced above. Actual sentences and fines depend on the circumstances of the case, criminal history, and judicial discretion. Courts may impose longer sentences when aggravating circumstances apply, and fines are not required in every case.
| Offense Level | Prison or Jail Range | Potential Fine Range |
|---|---|---|
| Level 1 drug misdemeanor | 6 to 18 months in jail | $500 to $5,000 |
| Level 4 drug felony | 6 to 12 months in prison | $1,000 to $100,000 |
| Level 3 drug felony | 2 to 4 years in prison | $2,000 to $500,000 |
| Level 2 drug felony | 4 to 8 years in prison | $3,000 to $750,000 |
| Level 1 drug felony | 8 to 32 years in prison | $5,000 to $1,000,000 |
Source: Colorado Revised Statutes § 18-1.3-401.5.
What Does the Evidence Say?
Initiative 85 aims to reduce fentanyl-related harm in Colorado by increasing criminal penalties for distribution and possession, creating a treatment pathway for some low-level possession offenses, and removing three current-law protections related to overdose reporting, repeat-offender sentencing, and the ability to reduce a felony after completing treatment. This section examines what the research says about whether these approaches are likely to achieve those goals and identifies areas where the evidence remains uncertain. Evidence level ratings follow the Institute's framework described in the Appendix.
| Question | Impact | Evidence Level/ Certainty |
|---|---|---|
| Distribution penalties | Mixed. Severe penalties can deter some repeat offenders and remove convicted distributors from the market, but no study has directly linked fentanyl penalty escalation to reductions in availability or overdose deaths. | Levels 2-3; Low–Moderate |
| Possession penalties | Colorado's 2022 fentanyl law did not show clear reductions in overdose deaths or improvements in treatment access. | Levels 1-3; Low |
| Treatment under criminal justice supervision | Strong evidence when voluntary and medication-based; weaker when compulsory or treatment infrastructure is limited. | Levels 4-5; High (voluntary MOUD); Low (compulsory) |
| Good Samaritan law (GSL) protections | Evidence generally supports arrest-protection GSLs; one credible study found null effects. | Levels 3-5; Moderate |
| Drug-induced homicide (DIH) laws | Little credible evidence of population-level overdose reductions; the accountability rationale is a separate question. | Levels 1-3; Insufficient |
| Distribution Penalties |
| Question: Can stricter penalties for fentanyl distribution deter repeat offenders or others from selling fentanyl? |
| Evidence Level: Levels 1-3, Theory informed |
| Evidence Certainty: Low to Moderate |
Evidence |
| Initiative 85 would make any amount of fentanyl distribution a Level 1 drug felony, Colorado's highest, with a mandatory sentence of 8 to 32 years and would reinstate habitual criminal sentencing for repeat possession offenders. These changes are intended to deter trafficking, reduce fentanyl availability, and lower overdose deaths. [4] That evidence applies to repeat offenders in general crime contexts rather than fentanyl distribution specifically and provides indirect support for these provisions. Broader deterrence research consistently concludes that the certainty of punishment has a larger effect than sentence length alone. |
Research also supports a modest incapacitation benefit: incarcerating convicted distributors removes them from the market during their sentence. Whether that translates to reduced drug availability at the market level is less clear. Researchers note that fentanyl's high potency and small physical volume make supply disruption harder than for plant-based drugs. Policy analyses and a federal Government Accountability Office (GAO) report conclude that enforcement has not clearly reduced fentanyl availability or overdose deaths. |
Research on sentencing enhancements states that severe penalties can deter some repeat offenders. One frequently cited study of California's three-strikes law found that offenders facing a sentence enhancement reduced their felony arrest rates by roughly 17 to 20 percent. [5] No study has directly established that escalating state-level fentanyl distribution penalties reduces trafficking or overdose deaths, a limitation that reflects the state of the literature, not a finding of ineffectiveness. Penalty policies are also inherently harder to study than treatment interventions, because sentencing laws cannot be tested through randomized trials and researchers must rely on observational comparisons across states and time periods. |
Colorado experience |
No Colorado study has directly evaluated the effects of distribution-level penalty escalation on trafficking or overdose deaths. The research cited above provides the most relevant context available. |
Evidence takeaway
Research supports some deterrence and incapacitation effects from stricter distribution penalties, but whether escalating these penalties reduces availability or overdose deaths remains an open empirical question.
| Possession Penalties and Treatment |
| Question: Does Colorado Initiative 85's restructuring of fentanyl possession penalties by increasing sanctions for larger quantities while creating a treatment-mandated pathway for smaller amounts reduce fentanyl use, recidivism, and overdose mortality compared to the prior penalty structure? |
| Evidence Level: Possession penalties - Levels 2-3, Theory informed; Treatment - Levels 4-5, Evidence informed and proven |
| Evidence Certainty: Low (penalty escalation); High (voluntary MOUD and court-supervised treatment); Low (compulsory treatment) |
Evidence |
| Initiative 85 would increase the penalty for possession of more than one gram and not more than four grams of fentanyl from a Level 4 to a Level 3 drug felony and would create a new Level 4 treatment-mandated drug felony for possession of not more than one gram. Defendants under the treatment-mandated provision would be eligible for court-ordered treatment and, upon successful completion, could have their conviction vacated. The measure would also eliminate a current provision allowing certain fentanyl felonies to be vacated and replaced with a misdemeanor after completing treatment. |
Colorado's 2022 fentanyl law, House Bill 22-1326, provides the closest available comparison. Several evaluations found no clear reductions in overdose deaths or meaningful improvements in treatment access following implementation. [6] Longer-term effects remain uncertain. An important caveat applies to Provision 3: those evaluations primarily assessed the transition from misdemeanor to felony status, while Provision 3 creates a within-felony escalation from Level 4 to Level 3 that has not been studied. The absence of evidence on this specific change reflects a gap in the literature, not a finding of no effect. |
The treatment evidence is considerably stronger. Research consistently finds that medication for opioid use disorder (MOUD), particularly buprenorphine and methadone, is among the most effective interventions for opioid addiction. Studies of correctional MOUD programs and drug courts report substantially better retention and much lower post-release overdose risk when treatment is voluntary and evidence based. [7] The key distinction is between voluntary or court-supervised treatment, for which the evidence is strong, and compulsory treatment imposed under criminal threat without adequate support, for which evidence is considerably weaker and in some studies is associated with increased overdose risk. Whether Initiative 85's treatment-mandated felony produces outcomes closer to the effective voluntary model depends on how it is implemented. |
Colorado experience |
Colorado enacted a jail MOUD mandate in July 2023, but implementation remains incomplete in some parts of the state. Initiative 85 would add hundreds of individuals annually to the pool requiring court-mandated treatment, and existing capacity may not fully accommodate that volume, resulting in new costs for the State. |
The costs of expanded treatment capacity should be weighed against the documented returns to treatment investment. A National Academies of Sciences, Engineering, and Medicine consensus review concluded that medications for opioid use disorder save lives and that most people who could benefit from them do not receive them, and a cost-effectiveness analysis of publicly funded treatment in California found that medication-based treatment produces net savings relative to no treatment. [8] |
Evidence takeaway
The passage of Colorado House Bill 22-1326 fentanyl law did not show clear reductions in overdose deaths; the strongest evidence supports voluntary, medication-based treatment, which depends on implementation conditions not yet fully in place.
| Overdose Reporting and Drug-Induced Homicide |
| Question: What effects would the removal of Good Samaritan overdose-reporting immunity and the expansion of drug-induced homicide liability for fentanyl distribution under Colorado Initiative 85 have on overdose mortality and on emergency help-seeking? |
| Evidence Level: Levels 3-5 Theory informed to proven |
| Evidence Certainty: Moderate (Good Samaritan laws); Insufficient (drug-induced homicide deterrence) |
Evidence |
| Initiative 85 would remove overdose-reporting immunity for fentanyl distribution offenses under current Good Samaritan law (GSL) protections and expand drug-induced homicide (DIH) liability to cover any fentanyl distribution that leads to death with the possibility of a second-degree murder penalty with sentences of 16 to 48 years or potentially life. |
| Studies find that states with arrest-protection Good Samaritan laws have had lower overdose mortality than states without them, though findings are not uniform. The effect in positive studies is specific to arrest protection rather than prosecution immunity, identifying fear of arrest as the deterrent effect. Some analyses indicate these protections are associated with overdose death reductions of roughly 9 to 11 percent. [8] The evidence is best understood as generally supportive rather than conclusive. |
Initiative 85 removes arrest-protection immunity for fentanyl distribution offenses, while leaving possession-level GSL protections unchanged. Together, these provisions substantially increase potential criminal exposure for an overdose. The combined effect is more consequential than either provision alone. |
Regarding drug-induced homicide laws, the principal published study showing a deterrence effect has been challenged on methodological grounds in subsequent peer-reviewed work. The largest study of these effects covers 42 prosecutorial districts in North Carolina and found no statistically significant association between drug-induced homicide charges and overdose deaths.⁶ Studies in other states find that a substantial share of prosecutions involve acquaintances or family members of the deceased rather than commercial distributors, and racial sentencing disparities are common. |
Colorado experience |
| As with the distribution provisions, no Colorado study has evaluated these provisions directly. Research from other states provides the best available context and should be applied to Colorado's circumstances with appropriate caution. |
Evidence takeaway
Studies generally support overdose-reporting protections as reducing barriers to emergency help-seeking; the accountability case for drug-induced homicide liability is independent of deterrence evidence, which does not support population-level overdose reductions.
| Evidence Summary |
The evidence supports three conclusions with the greatest confidence:
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Whether increasing fentanyl penalties reduces availability or overdose deaths at the population level is less certain. Colorado's 2022 fentanyl law, the most relevant comparison, did not show clear reductions in overdose deaths or treatment access, though it evaluated different structural changes than several provisions in Initiative 85 create. For several provisions, meaningful uncertainty remains because directly comparable policies have not been studied. |
Appendix
Levels of Evidence
This report uses an evidence framework consistent with the Oxford Centre for Evidence-Based Medicine (OCEBM) levels and the GRADE system, adapted for policy research contexts and aligned with Colorado Revised Statutes as established by House Bill 21-284.
Level 5 – Proven: High or well-supported confidence of effectiveness, based on one or more high-quality randomized controlled trials, multiple evaluations with strong comparison groups, systematic reviews, or meta-analyses.
Level 4 – Evidence-informed: Moderate or promising confidence, based on an evaluation with a comparison group, multiple pre- and post-evaluations, or equivalent measures.
Levels 1–3 – Theory-informed: Moderate to low confidence, based on performance tracking, pre- and post-intervention evaluation, or theory of change identification. Level 3 involves more rigorous quasi-experimental methods; Levels 1–2 are less rigorous.
No Level – Opinion-based: Low confidence, based on satisfaction surveys, personal experience, or absence of existing evidence.
Evidence Certainty is reported as high, moderate, low, or very low, drawn from the authors’ own characterizations and IEBP staff interpretation.