Photo from: THE CANADIAN PRESS/Darryl Dyck (https://toronto.citynews.ca/2016/06/24/mayor-supports-plan-to-establish-safe-injection-sites-in-toronto/). JHBL does not own this photo and has not altered it in any way.
By Sarah Marshall, JHBL Staff Member
The opioid epidemic has covered news headlines for years as the nation searches for a solution to this crisis. Dozens of videos have gone viral showing people passed out on the sidewalk, on benches, and in their cars with small children in the backseat while high on drugs.[1] In August, an Oklahoma judge ordered the multinational corporation Johnson & Johnson to pay the state $572 million for the company’s role in the opioid epidemic.[2] With more than 2,000 opioid lawsuits pending across the country at the time of this ruling, it provides hope that responsibility will be assigned for this deadly crisis.[3] That solution, however, tends to be reactive rather than proactive. One nonprofit organization is now making strides in an attempt to provide a proactive remedy – supervised injection sites.[4] In October, a U.S. District Court judge for the Eastern District of Pennsylvania ruled that a Philadelphia nonprofit’s plan to open a supervised injection site does not violate the Controlled Substances Act.[5]
According to the nonprofit, Safehouse, this “Overdose Prevention Site” will offer medical care as well as services designed to prevent the spread of disease, and will encourage drug users to enter treatment.[6] Safehouse’s reported protocol involves a registration process and is followed by a physical and behavioral health assessment.[7] Individuals who choose to use drugs will be medically supervised and, if necessary, staff will intervene to prevent a fatal overdose.[8] Safehouse policy provides that individuals will be encouraged to receive treatment at least three times during their time at the supervised injection site.[9]
The judge concluded the Controlled Substances Act, specifically 21 U.S.C. § 856(a), “does not prohibit Safehouse’s supervised consumption rooms because Safehouse does not plan to use them ‘for the purpose of’ unlawful drug use within the meaning of the statute.”[10] In deciding this case, the judge interpreted the statute to find that the purpose of the Act had to be a “significant purpose to facilitate drug use, and that allowance of some drug use as one component of an effort to combat drug use will not suffice to establish a violation of § 856(a)(2).”[11] Ultimately, according to the judge, Safehouse’s goal in the operation of this facility was to reduce drug use, which the Controlled Substances Act does not prohibit.[12]
While the federal prosecutors in this case called the sites “in-your-face illegal,” others fervently support the program.[13] The American Medical Association issued a press release showing its support for supervised injection sites, citing studies from other countries showing these sites reduce the number of fatal overdoses, reduce the spread of infectious diseases, and increase the number of individuals who seek help for a substance abuse disorder.[14] Attorneys general from seven states and Washington, D.C., in addition to city officials in five other cities supported, Safehouse in this case and urged the court to rule in Safehouse’s favor.[15]
The judge’s order in this case was, arguably, judicial activism used to circumvent the Controlled Substances Act through a unique interpretation. While the Department of Justice is expected to appeal the case, Safehouse marks the first time a court has authorized a supervised injection site while over a dozen additional organizations across the country are attempting to do the same thing.[16] Yet, it is this judicial activism that may save thousands of lives across the country and finally bring some relief to the opioid epidemic that has devastated the country. More than 68,000 people died of overdoses in the United States in 2018 and, in Philadelphia alone, the city reportedly loses three people a day to opioid overdoses.[17] Not only does the Safehouse site seek to prevent fatal overdoses, the organization provides sterile consumption equipment to try to reduce the spread of infectious diseases associated with unsterile equipment.
State officials who hope to open similar supervised injection sites have traveled, in waves, to the longstanding supervised injection site in Vancouver, Canada called Insite.[18] Insite has been open for over fifteen years and provides drug users “a safe, clean place to get high.”[19] Despite its long-standing success, Insite has faced its own legal challenges. The Supreme Court of Canada held that Insite should be granted an exemption from federal law because saving lives outweighs any benefit of barring illegal drugs at the site.[20]
It appears the U.S. District Court judge is following the Supreme Court of Canada’s lead that the importance of saving lives are more important than following the Department of Justice’s strict interpretation of the Controlled Substances Act. If other courts agree that supervised injection sites are not prohibited under the Controlled Substances Act, it could certainly be expected that state legislatures and Congress will regulate these organizations. Despite this, supervised injection sites may be what the opioid crisis needs to work towards a more proactive, permanent solution.
Sarah Marshall is a second-year student at Suffolk University Law School. She is currently employed at a Bay Village real estate and property law firm. As a staff member, she is working on a case comment about transgender inmate’s access to gender confirmation surgery.
[1] See Alice Park, Life After Addiction: After Video of Their Overdose Went Viral, a Couple Got a Chance at Redemption, TIME, https://time.com/life-after-opioid-addiction/, (last accessed Oct. 27, 2019).
[2] See Jan Hoffman, Johnson & Johnson Ordered to Pay $572 Million in Landmark Opioid Trial, N.Y. Times(Aug. 26, 2019), https://www.nytimes.com/2019/08/26/health/oklahoma-opioids-johnson-and-johnson.html.
[3] See id.
[4] See Bobby Allyn, Judge Rules Planned Supervised Injection Site Does Not Violate Federal Drug Laws, NPR (Oct. 2, 2019), https://www.npr.org/2019/10/02/766500743/judge-rules-plan-for-safehouse-drug-injection-site-in-philadelphia-can-go-forwar.
[5] United States v. Safehouse, 2019 U.S. Dist. LEXIS 170912 (E. Dist. Pa. 2019).
[6] See id.at 12.
[7] See id.at 12-13.
[8] See id.at 13.
[9] See id.at 12-14.
[10] Safehouse, 2019 U.S. Dist. LEXIS, at *15. See also21 U.S.C. § 856(a) (2003).
[11] Safehouse, 2019 U.S. Dist. LEXIS, at *85.
[12] See id.
[13] See Allyn, supranote 3.
[14] See Press Release, American Medical Association, AMA Wants New Approaches to Combat Synthetic and Injectable Drugs (June 12, 2017), https://www.ama-assn.org/press-center/press-releases/ama-wants-new-approaches-combat-synthetic-and-injectable-drugs.
[15] See Allyn, supranote 3.
[16] See Allyn, supranote 3.
[17] See Allyn, supranote 3.
[18] See Elana Gordon, Lessons from Vancouver: U.S. Cities Consider Supervised Injection Facilities, WHYY (July 5, 2018), https://whyy.org/segments/lessons-from-vancouver-u-s-cities-consider-supervised-injection-facilities/.
[19] See Gordon, supranote 17.
[20] See Bobby Allyn, Cities Planning Supervised Drug Injection Sites Fear Justice Department Reaction, NPR (July 12, 2018), https://www.npr.org/sections/health-shots/2018/07/12/628136694/harm-reduction-movement-hits-obstacles.
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Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.