Tagged: Controlled Substances Act
With Massachusetts and the country facing a rising opioid overdose epidemic, lawmakers are looking to some controversial measures to curb overdose deaths. One of those measures being considered is supervised injection sites, also called safe injection sites or safe consumption spaces. Safe consumption spaces, of which there are 100 worldwide, are clean spaces where people can legally use pre-obtained drugs with supervision from healthcare professionals who aim to make injections as safe as possible while providing health care, counseling, and referral services to addicts. While safe injection sites have been successfully implemented in Canada, Australia, and Europe over the past 30 years, attempts to create such sites in San Francisco, Seattle, Boston, and more U.S. cities have not yet been successful. Beyond policy arguments as to whether these sites are effective, sites in the United States also face significant legal hurdles under federal law.
According to supporters of safe injection sites around the country and the world, the policy is an effective and relatively low-cost way to prevent overdose deaths and manage harm with no demonstrated consequences of increased drug use or increased crime. Opponents of safe injection sites, including Massachusetts Governor Charlie Baker, have pointed to increased opioid deaths in
recent years in Vancouver, which established its supervised consumption site Insite in 2003, to argue that safe injection sites are not actually effective in preventing overdose deaths. However, those arguments are misleading, as experts have stated that the increase in overdose deaths in Vancouver are due to the influx of fentanyl being added to drugs, and that Insite actually saw a 35% reduction in overdose deaths around the facility in the two years after it opened. While there are also studies questioning the efficacy of safe consumption sites—calling into question whether they have a significant impact on reducing deaths and reaching a significant amount of drug users—even the negative studies generally criticize safe consumption sites as being relatively ineffective as opposed to actively harmful. There are dozens of peer-reviewed scientific studies that have found that safe injection sites actually do significantly benefit those who are addicted to opioids and prevent opioid deaths. Notably, no death has ever been reported in an injection site, and a review of studies concluded that injection sites were associated with less outdoor drug use and did not appear to have any negative impacts on crime or drug use.
Despite the strong evidence backing the societal benefits of implementing and supporting safe injection sites, the policy faces significant legal and political obstacles in the United States. Perhaps the biggest hurdle that advocates of safe injection sites face is the potential legal liability of such sites under federal law and opposition from the Justice Department. The Controlled Substances Act makes it illegal to “knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance,” as well as to knowingly manage such a place. The plain language of that law may render implementation of safe injection sites impossible without some change or exception carved out in federal law.
However, advocates of safe injection sites do have a glimmer of hope that, once the first U.S. site is created, it will pass judicial muster through a creative legal argument proposed by law professor and drug policy expert Alex Kreit. In his paper, Kriet argues that a provision in the Controlled Substances Act providing immunity to state and local officials who commit drug crimes while enforcing local laws could protect safe injection sites from a crackdown by the federal government. Kreit has stated that the infrequently cited rule has previously been used in situations where authorities have seized marijuana and then returned it in states where marijuana has been legalized. Under this theory, those involved in safe injection sites would be protected so long as they were acting in accordance with a city ordinance or state law supporting safe injection sites. Other experts have expressed skepticism that such an argument would pass muster, however, with some stating that Kreit’s argument is a “stretch,” and that any path toward legality for safe injection sites lies in convincing the federal government not to target safe injection sites on public health grounds.
If cities and states cannot find a legal workaround protecting those involved with the safe injection sites, advocates likely face an uphill battle in convincing their communities and the Justice Department to accept injection sites. Attempts at establishing sites have not been politically palatable, as demonstrated by efforts in San Francisco and Boston. California Governor Jerry Brown vetoed a bill that would have allowed supervised drug consumption sites in the state and went so far as to describe it as “enabling illegal drug use.” In Massachusetts, in addition to Governor Baker’s opposition to the idea of safe injection sites, the Senate ultimately stripped a provision authorizing safe injection sites from its comprehensive opioid bill this past legislative session, instead replacing the pilot program with a commission to study the feasibility of establishing such sites. In addition to opposition from state Governors and a lack of strong state government support, it seems highly unlikely that the current federal administration would turn a blind eye to safe injection sites on public health grounds. In addition to a statement from the Vermont U.S. Attorney’s Office criticizing the policy and affirming that the United States Attorney would impose ramifications under federal law, there have been multiple other instances indicating the administration’s hostility towards safe injection sites and similar policies. In August, Deputy Attorney General Rod Rosenstein wrote an op-ed in the New York Times opposing safe injection sites and emphasizing the fact that they violate federal law. The Justice Department also “promise[d] [a] crackdown” on supervised injection facilities on an NPR radio show.
While there is scientific and global community support for safe injection sites, their future in the United States is still unclear, especially under the current federal administration. Until there are more assurances that sites could operate without intervention from federal law enforcement, it seems that most cities and states that have been at the forefront of the push for safe injection sites do not have the political will or capital to open the country’s first site and become the guinea pig of the movement. Philadelphia, however, may be the one city willing to go first. In August, Philadelphia Health Commissioner Dr. Thomas Farley said that Rosenstein’s opposition and warnings from the Justice Department would not prevent Philadelphia officials from further exploring the idea. Currently, Philadelphia seems to be going forward with its plan to allow, but not publicly fund, a non-profit site called Safehouse, which could serve as a jumping off point for litigation determining the legality of the sites and potentially creating more certainty for other interested cities and states. As for Massachusetts, it seems unlikely that the Commonwealth will be establishing any safe injection sites in the near future, though the members of the commission created in last session’s opioid bill will no doubt keep a close eye on Philadelphia as its safe injection site plan comes to fruition.