The Golden Raspberry Awards, aka the “Razzies,” is a satirical annual farce spoofing the most god-awful movie tarnishing the silver screen. The Golden Skunkweed Awards, aka the “Stinkies,” could be an analogous annual award identifying the most noisome ruling handed down by the Colorado Supreme Court (Court). The recent decision of People v. Beverly (Beverly) whittled legislation enhancing the penalty for the distribution of fentanyl attended by death of the user. The case merits the 2025 Stinkies Award. Its pungent smelly scent wafts of judicial overreaching. Beverly may be better understood by sniffing a synopsis:

Beverly initially acknowledged that fentanyl surpasses heroin as the drug responsible for the most opioid-related deaths nationwide. Fentanyl is roughly 50 times more potent than heroin. It accounts for two-thirds of drug overdose deaths in the United States. In 2022 the Colorado General Assembly enacted a law enhancing the penalty to be imposed against those convicted of distributing fentanyl by four times if the distribution is the proximate cause of the death of another person who used or consumed the fentanyl. The Court created a judicial exception to the enhancement if the jury finds that 1) the fentanyl was used or consumed with the intent to commit suicide, 2) the individual died as a result, 3) the fentanyl distributor did not participate in the suicide, 4) the suicide was not reasonably foreseeable, and that 5) but for suicide, the user’s death would not have occurred. The penalty enhancement then should not be imposed.

A preliminary consideration in analyzing Beverly is to recognize that the penalty enhancement for fentanyl distribution resulting in the death of the user is not subject to a “strict scrutiny” test applicable to laws which target a suspect class, or unduly compromise fundamental rights. The enhancement is justified on its own merits by the inherent lethality of the drug itself. Just a few grains of fentanyl can be deadly. Licit fentanyl is usually administered in a hospital setting permitting close monitoring of the patient. The risk of death resulting from taking illicit fentanyl is statistically off the charts, indisputable beyond a reasonable doubt. It is clandestinely concocted by criminal cartels using chemical precursors, mostly from sources in China. According to DEA’s 2024 National Drug Threat Assessment, the Sinaloa and the Jalisco New Generation Cartel (CJNG) are the primary and “most dangerous” transnational criminal organizations (TCOs) in Mexico. TCOs engage in the mass production of illicit fentanyl. They use pill presses to produce fentanyl. The dosage per pill is not precisely regulated in compliance with pharmaceutical protocols. Pills are frequently disguised as other drugs, including cocaine, heroin, methamphetamine, and date-rape drugs. The lethality of illicit fentanyl moreover may be influenced by the physiological vulnerability of the user.

Those who distribute illicit fentanyl should be strictly accountable, irrespective of the user’s intent or state of mind. Strict liability should be borne from cartel bosses to pushers along the deadly chain of distribution. Two principles of mens rea (criminal intent) should be considered. The risk of death resulting from use of illicit fentanyl has been widely publicized. Its distribution should invoke strict liability, as with statutory rape. Defendants are held responsible for sexually violating a child, regardless of whether they knew, should have known, or were misled about the victim’s age. Strict liability focuses on protecting the child, not the pedophile’s intent or belief about the child’s age. The enhanced punishment imposed when illicit fentanyl results in death should focus on the hazard confronting the user irrespective of a suicidal intent or state of mind.

Some laws impose enhanced penalties for crimes committed against “at-risk” individuals, such as those who are 60 years of age or older, or anyone suffering from a designated disability. An individual who takes illicit drugs is “at-risk” per se. The fact alone that they consume a drug furnished by the criminal underworld is akin to playing Russian Roulette with chemical bullets. Suicidal thoughts may also be the manifestation of physical and psychological ravages as a consequence of taking dangerous illicit drugs. It behooves the Colorado General Assembly to clarify that distributing fentanyl, including any articulated penalty enhancements, is a strict liability offense, irrespective of the suicidal intent of the user.

Ralph Josephsohn is a longtime resident of Longmont and a semi-retired attorney.