Is there any legal way to establish centers where people could use illicit drugs under medical supervision?
That is one of the top questions legislators will ask if they take up a bill to allow “safe consumption sites,” as the state’s Harm Reduction Commission has recommended.
And they won’t find an easy answer.
Federal prosecutors in Massachusetts and elsewhere have said federal law prohibits such facilities. But other legal experts interpret the law differently and say it doesn’t apply to these sites, which are intended to prevent overdose deaths and provide medical care.
Advocates also note that authorities have broad leeway in choosing which laws to enforce and could easily opt against fighting safe consumption sites.
“Every prosecutor has to apply some discretion: Is this where we want to spend taxpayer dollars?” said Daniel Raymond, deputy director of planning and policy for the Harm Reduction Coalition, a New York-based group that supports overdose prevention. “Why would the Department of Justice be so invested in overriding the will of state legislatures and public officials?”
Safe consumption sites, also called supervised injection facilities, are places where people can inject or consume illicit drugs they’ve obtained elsewhere. Trained staff will revive anyone who overdoses, and staffers also provide medical care, clean needles, counseling, and referrals to treatment programs.
More than 100 centers have opened in 66 countries, including dozens in Canada, but federal authorities in the United States have declared them illegal. Opponents fear an increase in crime and say such sites “normalize” drug use. But advocates call them life-savers.
The Massachusetts Legislature rejected a proposal to authorize a safe injection site last year, instead creating the Harm Reduction Commission to study the issue. The commission decided Tuesday to recommend that the state open one or more centers on a pilot basis.
Governor Charlie Baker, in a sometimes testy exchange with reporters Wednesday, held fast to his opposition to safe consumption sites, insisting they “can’t happen.”
“The US attorney here has made absolutely crystal clear that he will prosecute anyone who tries to open up a safe injection site in Massachusetts,” Baker said. “I want to focus on stuff that we can do. We can’t do it. It’s against the law.”
Advocates point out the same could be said of cannabis. Despite threats, the federal government has done nothing to stop pot dispensaries throughout the state, even though federal law classifies marijuana as a dangerous drug with no medical use.
“A cannabis dispensary breaks the same laws that a safe consumption site would break — and more,” said Leo Beletsky, a law and health sciences professor at the Northeastern University School of Law and a member of the Harm Reduction Commission. “And yet we have a fully functioning and growing cannabis industry in this state.”
In opposing safe consumption sites, Department of Justice officials cite the Controlled Substances Act, which prohibits maintaining a premises for the purpose of using illegal drugs. This provision was written to combat “crack houses” where users gathered to buy and take drugs.
“That statute was never intended to apply to a public health intervention, the purpose of which is to save lives,” said Lindsay LaSalle, director of public health law and policy for Drug Policy Alliance, a New York group that opposes “the war on drugs.” It could be argued, she said, that safe consumption sites further the goals of the act by providing education and opportunities for treatment to people who use drugs.
But no court has ruled on the matter, so whether the Controlled Substances Act applies to safe consumption sites remains unclear, Beletsky said.
Portions of the Controlled Substances Act might actually allow safe consumption sites. Alex Kreit of the Thomas Jefferson School of Law recently wrote about a provision that protects federal and state officials from prosecution for violating federal drug laws while enforcing another law related to drugs. The provision has been used to protect state and local police undercover operations, but Kreit argues that it could apply to safe consumption sites.
And Lawrence O. Gostin of the Georgetown University Law Center and colleagues posited that safe consumption sites might be able to seek an exemption in the Controlled Substances Act that allows for research.
US Attorney Andrew E. Lelling promised in a statement last summer that such facilities “would be exposed to federal criminal charges” if they opened in Massachusetts. In an op-ed in the Globe last month, he said that “any effort to open an injection site in Massachusetts will be met with federal enforcement.”
Asked Wednesday what actions he would take, Lelling declined to provide specifics “because our response would depend on how events unfolded.”
“I have assigned prosecutors to this issue who will be prepared to pursue enforcement if necessary,” he said in an e-mail. Lelling also advised, “Supporters of these sites should focus on congressional action.”
If federal authorities wanted to take strong action, they could confiscate the property where a safe consumption site is located and arrest everyone involved — not just clients, but operators, staff, volunteers, and landlords, LaSalle said.
But Beletsky doubts they would go that far. “Once you have nurses being handcuffed and led out of a clinic that’s trying to prevent overdoses, that sheds a different light on what the federal government is doing,” he said.
A case in Philadelphia might provide some answers. Citing the Controlled Substances Act, the US attorney there filed a civil suit this month to block the opening of safe consumption site in that city.
The Philadelphia case will air arguments that many in the public have not heard, said Raymond, of the Harm Reduction Coalition. It will also shed light on how “the Department of Justice is completely out of step” with law enforcement officials across the country “who have said loud and clear, ‘We can’t arrest our way out of this crisis.’ This is a public health problem and demands public health solutions,” he said.
But the judge’s ruling in that case won’t provide a definitive answer for Massachusetts, because it’s a different jurisdiction, and also a different situation. Pennsylvania has not passed a law allowing safe injection sites; officials merely agreed to open one in Philadelphia. Massachusetts is poised to consider a law first — and if that happens, the question will arise whether the federal government has the right to supersede state law.
Advocates also note that syringe exchanges, which prevent the spread of HIV and other diseases by providing clean needles to users, were also controversial — and illegal — when they started in the 1980s. People were arrested for distributing needles. Now Massachusetts has 24 needle exchanges.
“With syringe exchanges, the feds did everything they could to try to thwart implementation,” said LaSalle, of the Drug Policy Alliance. “Hindsight and science have shown that the federal government was on the wrong side of history. They’re going to be in the case of safe consumption sites as well.”