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Do "Safe Injection Sites" Violate Federal Law?

Posted by Dmitry Gorin | Nov 28, 2023

In the ongoing battle to combat the opioid crisis, a few cities across the country have begun considering "safe injection sites" as a controversial approach to curbing the problem. In 2021, New York City opened the first publicly recognized safe injection site, with other sites planned in cities in Rhode Island, Colorado, New Mexico, Nevada, and others.

These sites, also known as supervised consumption services or overdose prevention centers, are facilities where individuals can consume pre-obtained drugs under the supervision of trained professionals. These sites provide sterile injection equipment, medical monitoring to prevent overdose deaths, and access to health care and treatment referrals.

Do "Safe Injection Sites" Violate Federal Law?

According to proponents, these sites are designed to reduce public drug use, lower the incidence of discarded needles, and, most critically, save lives. The question is: are they legal under federal law?

At the time of this writing, the current official position of the Department of Justice (DOJ) is that safe injection sites constitute a violation of federal law. However, there are significant signs the DOJ's position may be changing.

This potential change comes after winning a court battle against the opening of safe injection sites, which are essentially safe havens for people to use heroin and other narcotics with protections against fatal overdoses.

The DOJ evaluates these facilities and talks to regulators about appropriate safeguards. This position is a major change from its stance in the Trump administration when prosecutors fought against a plan to open a safe consumption site in Philadelphia.

The Justice Department won a lawsuit when a federal appeals court in Pennsylvania ruled that opening a safe injection site would violate an old drug law designed to target crack houses that ban operating a place for taking illegal drugs. The United States Supreme Court declined to take the case.

What is the Legal Controversy Surrounding Safe Injection Sites?

The legality of safe injection sites has been a topic of hot debate. Opponents of the idea argue that they violate the federal "Crack House Statute" defined under 21 U.S.C. 856, which makes it unlawful to knowingly open, lease, rent, use, or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance.

Legal Controversy Surrounding Safe Injection Sites

21 U.S. Code 856 Maintaining drug-involved premises law says, “(a) Except as authorized by this subchapter, it shall be unlawful to —

(1) knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance;

(2) manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

(b) Criminal penalties

Any person who violates subsection (a) of this section shall be sentenced to a term of imprisonment of not more than 20 years, a fine of not more than $500,000, or both, or a fine of $2,000,000 for someone other than an individual.

(c) Violation as an offense against property

A violation of subsection (a) shall be considered an offense against property for purposes of section 3663A(c)(1)(A)(ii) of title 18.”

Meanwhile, proponents of safe injection sites argue that the "Crack House Statute" is unfairly being appropriated to facilities seeking to deter the drug problem rather than further it.

They contend that these facilities do not facilitate illegal drug use but provide a critical public health service. They contend that these sites can help reduce the spread of infectious diseases, decrease public drug use and related nuisances, and increase the number of individuals entering treatment programs.

More importantly, these sites aim to reduce the alarming rate of drug overdose deaths. Advocates say that safe injection sites are a way to curb the number of overdose deaths. Many will refer to the latest available death certificate data; the Centers for Disease Control and Prevention estimated that more than 100,000 Americans died of drug overdoses over the past few years.

The Battle in the Courts

The controversy surrounding safe injection sites has reached the courts—most notably, an ongoing dispute between the DOJ and Safehouse, a non-profit organization seeking to open a safe injection site in Philadelphia.

The ongoing dispute has ventured from direct talks to lawsuits and back again. In response to a complaint brought against Safehouse by the DOJ in 2019, the Federal District Court concluded that the primary purpose of Safehouse was to reduce drug use and encourage treatment, not facilitate illegal activity.

However, this decision was overturned by the Third Circuit Court of Appeals, handing a win to the DOJ.

The appellate court disagreed with the district court's interpretation of the "Crack House Statute." It held that Safehouse would violate the statute because it would knowingly make a place available for individuals to use illegal drugs, regardless of its intentions or ancillary services.

The court reasoned that the statute's language is clear and unambiguous, focusing on the actions taken rather than the ultimate goal or purpose.

A counterclaim filed by Safehouse against the DOJ is still in the courts. The two entities have long been engaged in settlement talks to resolve the claim, but there has been no official resolution yet.

Are There Shifting Tides?

In the meantime, there are signs that the Department of Justice may be softening its stance on safe injection sites. Within a year after winning the Safehouse Case at the appellate level, reports say the DOJ was planning to "evaluate" safe injection sites and begin discussions about "appropriate guardrails."

As recently as May 2023, the government announced an allocation of $5 million over the next few years to fund studies determining whether safe injection sites can indeed prevent overdoses.

Whatever the outcome of these debates, the DOJ's ultimate position on safe injection sites could have far-reaching implications. Suppose it continues to claim these sites violate federal law.

In that case, it may deter the expansion of these facilities throughout the United States, potentially leaving thousands of individuals without access to a potentially life-saving service.

On the other hand, it could encourage lawmakers to revisit and revise the "Crack House Statute" to clarify its application in the context of the opioid crisis and public health interventions. Contact our federal criminal defense lawyers for a case review. Eisner Gorin LLP is located in Los Angeles, California.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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