Initiative 85 will appear on Colorado’s November 3, 2026 ballot. The Secretary of State certified the measure after proponents submitted 187,699 signatures—enough to qualify a constitutional amendment eliminating prosecutorial discretion in fentanyl cases.
The initiative answers a question Colorado’s experience already settled: prosecutors won’t enforce laws they have discretion to ignore. HB 22-1326 gave them tools in 2022. They filed nine Level 1 felony cases in the first ten months. During those same ten months, 912 Coloradans died from fentanyl overdoses.
A University of Colorado study published in JAMA Health Forum analyzed overdose trends from January 2018 through November 2023 using time-series forecasting. The finding: “There was no difference between the observed and expected overdose deaths for the overall population following the enactment of HB 22-1326.” The study noted one detail prosecutors won’t like—methadone treatment retention dropped by half after the law passed, suggesting criminalization drove users away from treatment.
HB 22-1326, signed May 2022, created three enforcement tiers. Possession of 1-4 grams: Level 4 felony. Distribution of 4-50 grams: Level 2 felony. Distribution resulting in death: Level 1 felony, mandatory minimum eight years, maximum thirty-two years.
The General Assembly’s legislative declaration stated prosecutors should prioritize “drug dealers who manufacture, distribute, dispense, or sell fentanyl” over “low-level drug possessors.” The bill mandated post-enactment review tracking prosecutions and outcomes.
Nine cases filed. 912 deaths.
New York City proved enforcement works when actually applied. Overall crime dropped 56% from 1994 to 2001 under Mayor Rudy Giuliani. Murders fell 66%. Robberies declined 67%.
The difference wasn’t harsher penalties—New York already had those. The change was consistent enforcement at every level. The NYPD’s CompStat system tracked crime weekly and held commanders accountable for results in their precincts. Street-level dealers faced arrest. Mid-level distributors faced investigation. Major traffickers faced prosecution.
Colorado passed a law. Prosecutors ignored it.
Initiative 85 removes the choice.
Any amount of fentanyl becomes a felony. Possession under one gram remains Level 4 but requires court-mandated substance abuse treatment. Complete treatment successfully: felony reduces to misdemeanor. Fail treatment: Level 4 felony conviction stands.
Distribution of any amount becomes Level 1 felony. Mandatory minimum eight years. Maximum thirty-two years. No exceptions.
The initiative eliminates the “reasonable mistake of fact” defense in HB 22-1326. That provision allowed defendants to present evidence they didn’t know the substance contained fentanyl. Initiative 85 removes it. Possessed it or distributed it: face the full penalty. Senator Barbara Kirkmeyer, running for governor, calls fentanyl “the number one killer in Colorado.”
Three days before the signature submission, the DEA Rocky Mountain Field Division seized 1.7 million counterfeit fentanyl pills and 12 kilograms of powder from a Highlands Ranch storage facility—the largest fentanyl seizure in Colorado history and sixth-largest single pill seizure in U.S. history. The powder alone could produce an additional six million pills. Douglas County Sheriff Darren Weekly: “Let me send a strong and unmistakable message: fentanyl and illegal narcotics will not be tolerated in Douglas County.”
Fentanyl deaths nationwide declined 26.9% from peak in June 2023 through 2024—approximately 30,000 lives saved compared to prior trajectory. Public health experts attribute the decline to naloxone distribution, expanded treatment access, and possible shifts in drug supply.
What they can’t claim is that the decline proves prosecution doesn’t matter. Colorado’s experience proves the opposite. HB 22-1326 increased penalties but prosecutors didn’t enforce them. The JAMA study confirmed it: no change in overdose trends.
The study can’t tell us what would have happened if prosecutors had enforced the law. Nine prosecutions across the entire state over ten months isn’t enforcement. New York’s experience suggests actual enforcement changes outcomes.
Initiative 85 eliminates prosecutorial discretion through mandatory minimums. Prosecutors can’t decline to charge. Can’t reduce charges through plea bargains. Can’t exercise the discretion that produced nine prosecutions while 912 died.
Treatment remains available for possession under one gram—complete the program, charges reduce. Distribution faces no mercy: eight years minimum, any amount, no exceptions.
The question for Colorado voters in November 2026 isn’t whether mandatory minimums work in theory. The question is whether Colorado will continue allowing prosecutors to ignore laws while people die, or force accountability through sentencing that removes the discretion that failed.
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