On Tuesday, a court decided that Philadelphia-area nonprofit Safehouse can’t open a supervised injection site, a.k.a. safer consumption space (SCS), making the argument that extant federal law still stands in its way.
Specifically, judges for the U.S. District Court for the Eastern District of Pennsylvania pointed to legislation commonly known as the “Crack House Statute,” which was co-authored and promoted by president elect Joe Biden.
Maryclaire Dale reported for the Associate Press this week that the most recent ruling in the case of the United States v. Safehouse case represents “the latest setback for city officials [and] public health advocates who support the Safehouse plan as more than 100 people die in the U.S. each day from drug overdoses.”
The court’s decision overturned an October decision by a district judge “who found the plan legal given its goal of reducing drug use — not promoting it — through counseling and other services,” Dale reported for the AP. In a 2-to-1 ruling Tuesday, Judge Stephanos Bibas called Safehouse’s motives “admirable,” but wrote that U.S. Congress “has made it a crime to open a property to others to use drugs.”
In a dissenting opinion, Circuit Judge Jane R. Roth called the argument “absurd” and the original federal statute “nearly incomprehensible.”
Judge Roth doesn’t seem to be alone in her take on the Illicit Drug Anti-Proliferation Act, which then-Senator Biden passed an an amendment to “an unrelated package of child abduction legislation,” Zachary Siegel noted for The Appeal in 2019.
Safehouse vice president Ronda Goldfein told AP, “We remain confident that the law was not designed for Americans to stand by silently as their brothers and sisters die.”
Lindsay LaSalle, Managing Director of Policy for the Drug Policy Alliance, called the court’s decision “misguided” in a statement to press. “[It] is abundantly clear that Congress never intended to criminalize legitimate public health interventions through Section 856 of the Controlled Substances Act.”
LaSalle continued, “[Our group] has been advocating for Congress to affirm this position and will now also be looking to the new Biden administration to issue guidance to the Department of Justice to refrain from prosecuting proposed [SCS] that offer a critical intervention point of care.”
In his 2019 article for the Boston College Law Review, Professor Alex Kreit, Co-Director of the Center for Criminal Law and Policy at Thomas Jefferson School of Law, also suggested that popular opinion on the use of the “Crackhouse Statute” may be changing, and that the interpretation promoted by Biden and others doesn’t in fact hold water.
“In cases when the crack house statute is employed, it appears that federal prosecutors have used it mostly to target property owners with close ties to the drug activities occurring on their property,” Kreit explained. “The statute has the potential to apply to individuals with no direct connection to drugs, however.”
The statute also includes an ‘immunity provision’ which was “almost surely intended to protect state and local police officers that possess and distribute drugs in connection with undercover operations,” Kreit wrote. “Nevertheless,” he argues, “the text of the immunity provision and the scarce case law interpreting it suggest it could shield government-run safe injection sites from federal interference.”
But whatever solution that members of Congress or outside legal experts end up establishing in this matter, it can’t come soon enough, according to public health experts.
Researcher Peter Davidson, Associate Professor in the Department of Medicine at the University of California, San Diego, commented by phone that, after years of seeing encouraging data from operational SCS in other countries (and an ongoing drug crisis in this one), he and his peers would like the chance to finally study a sanctioned US site, vs. an underground one, which poses practical and ethical hurdles.
For several years, Davidson and his colleagues have been working with data from an underground SCS in the US, the results of which have suggested (time and again) that moving forward with aboveground facilities and research would be the right next step.
His latest study, based on 10 years’ worth of data from where that SCS is, found that rates of reported drug crimes (which are “in freefall” generally, he said) and potentially drug-related crimes (e.g. mugging, hustling) occurring near the SCS site declined at the same rate or better as in two control areas in the same city.
In short, Davidson said, “We can statistically demonstrate that intervention didn’t make things worse, which is what people are generally concerned about.”
In Tuesday’s court decision, judges even noted that the health case for SCS indeed seems strong, despite their ruling; they also made the point that only facilities in fixed locations, not mobile ones (e.g. needle-exchange vans), are covered by the statute.
“As a researcher, I just want to see someone open [a facility] in an aboveground way so we can study it,” Davidson continued. “It’s worked wonderfully in Australia, Canada, the UK, and other countries, but it’s conceivable that it might have different consequences in the US.”
“These are valid public policy questions, and we can’t answer whether or not [this model] works in the context of the US while studying it only underground.”
“I’ve always been hopeful we’d have several different aboveground sites around the country by now,” Davidson added. “But here we are.”