Last week, Philadelphia became the first U.S. city to approve a path forward for supervised sites for safe drug injection. Of course, this decision would unambiguously violate the Federal Controlled Substances Act of 1970, specifically section 844, which prohibits drug possession and would be violated by every client who goes to the safe injection site, and section 856, which makes it illegal to knowingly operate a site for the illegal use of controlled substances. The Controlled Substances Act of Pennsylvania would also apply, which prohibits the unlawful use of a controlled substance in section 13. The District Attorney and Mayor, however, don’t care; and neither does the co-chair of Philadelphia’s Opioid Task Force and the City’s Health Commissioner. Larry Krasner, District Attorney for Philadelphia, couches the problem in utilitarian terms of biblical import: “What will we do? We will allow God’s work to go on…. We will make sure that idealistic medical students don’t get busted for saving lives and that other people who are trying to stop the spread of disease don’t get busted….. When we have three or four people dying every day, nobody can afford to wait.” Dr. Thomas Farley, co-chair of Philadelphia’s Opioid Task Force and the City’s Health Commissioner, reasoned: “There are many people who are hesitant to go into treatment, despite their addiction, and we don’t want them to die.”
Safe injection sites have been used throughout the rest of the world with resounding success. They have been used in Europe since the 1980’s. They have consistently reduced overdose deaths, led to fewer risky injection behaviors such as needle sharing, served as an effective gateway to addiction treatment services, reduced nuisance crime associated with drug use, and saved public resources. Canada approved a pilot program in 2003 in Vancouver, which has been extensively evaluated. Australia approved a pilot program just two years earlier in Sydney. In Sydney, 41% of intravenous drug users reported adopting at least one safe use habit since beginning to use the facility. In Vancouver, the safe use facility was able to reduce the amount of overdose deaths to an astonishing 0.0%, while experiencing overdose rates of 1.3 per 1,000 injections. In Sydney, 38% of clients at the safe use facility successfully started drug treatment therapy, as opposed to 21% of drug users in the general population. At both of these sites, investigators actively sought out evidence that safe injection sites encouraged drug use or discouraged the cessation of drug use. They could not find any evidence. A curious thing also began to happen to the surrounding communities; they began to experience some positive effects (and no negative effects). Discarded syringes became less frequent, nuisance crime rates dropped, there was a significant drop in public injection, and the amount of litter related to drug use also began to vanish.
One approach recommended is to change laws at the state level (in this case Pennsylvania), to sanction the use of safe injection sites. States do have the right to pass public health laws under the tenth amendment to the U.S. Constitution, which authorizes states to use what is called “police power” to make their citizens safer. Curiously, the very first authorization of state police powers for improving public health arose in Philadelphia in 1793, when the city implemented protections to prevent the spread of yellow fever. See, Smith v. Turner (1849) for more information about the extent of state police powers being used for public health.
This approach would be similar to the approach state legislatures took when they legalized marijuana for medicinal purposes. Even though the use of marijuana in states would ostensibly have violated federal law, as held in Gonzales v. Raich (2005), which permitted the federal government to continue enforcing marijuana laws, the U.S. Justice Department, via the Cole memo, declined to enforce and instead deferred to the state governments. Recently, however, there are concerns that the Justice Department may yet exercise enforcement power against states and medical marijuana laws, as suggested by the Sessions memo of January 4, 2018, in which Attorney General Jeff Sessions explicitly rescinded the Cole memo approach. Additionally and specific to safe injection sites, the Trump-appointed U.S. Attorney for Vermont issued a formal statement that Vermont’s plans to implement safe injection sites would be dangerous and counterproductive as a matter of policy and would violate federal law. The statement was put forward, however, while ignoring the public health statistical evidence and without citing any evidence that these sites would actually be “counterproductive” or “dangerous”, instead basing the statement entirely on unsupported speculation and conjecture.
image credit: http://news.streetroots.org/2009/09/30/return-dragon-heroin-takes-over-portlands-streets