A handful of cities could soon face a legal showdown with the Trump administration over their efforts to open "supervised injection facilities" where drug addicts can shoot up with powerful illegal drugs while trained personnel stand by to prevent fatal overdoses.
In an effort to stem its growing opioid death rate, San Francisco is slated to open the nation’s first two publically authorized injection facilities in July. Philadelphia and Seattle are also pursuing similar sites — even as President Trump called again for the death penalty for major drug dealers on Monday.
Other large cities like Denver and New York City and even smaller towns, like Ithaca, NY, have considered the facilities as well. The Massachusetts Medical Society and the Massachusetts Health & Hospital Association want a pilot facility in their state too.
Research on injection sites around the world have found they prevent fatal overdoses and reduce the spread of infectious diseases like Hepatitis C and HIV by providing sterile needles and equipment. They also connect drug users with counseling, treatment and other services — without increasing area drug trafficking and other crime, studies have found.
Armed with naloxone to reverse overdoses, injection facility staff provide a lifesaving backstop to addicts whose stash may be tainted with lethal fentanyl, said Taeko Frost, western regional director at the Harm Reduction Coalition in Oakland.
“They can see immediately, before a person has fallen unconscious, they can see the signs of an overdose happening and administer oxygen (or naloxone) or help someone stand up and walk around," Frost said.
As more cities and health experts, including the American Medical Association, embrace this novel approach to the opioid crisis, their efforts face a major legal hurdle: the Drug Enforcement Administration says the injection sites would violate federal drug laws. That would allow federal prosecutors to potentially shut them down.
By being in illegal possession of controlled substances, every user who visits an injection site would violate drug-possession provisions of the 1970 Controlled Substances Act, said Katherine Pfaff, a DEA spokesperson. And the sites themselves would violate the law’s “crack house statute” that prohibits the use of a location to manufacture, store, distribute or use controlled substances, Pfaff said.
The dilemma reflects a philosophical crossroads for U.S. drug policy. President Donald Trump — who again on Monday called for the death penalty for major drug dealers — is holding fast to a punitive drug policy characterized by the decades-old “war on drugs.”
“This is about winning a very, very tough problem. And if we if don't get very tough on these dealers, it's not going to happen," Trump said at a press briefing in New Hampshire on Monday.
Critics, however, say the get-tough approach has failed to reduce drug usage, while swelling U.S. prisons with non-violent drug offenders.
Drug addiction and medical experts, frustrated by runaway overdose deaths from heroin, carfentanil and other opioids, are embracing more evidenced-based, public health solutions — like supervised injection facilities — to address the problem.
Insite, an injection facility in Vancouver, British Columbia, says it has supervised more than 3.6 million drug injections since 2003, resulting in "6,440 overdose interventions without any deaths," according to their website.
In fact, none of the world’s 100-plus sites where drug consumption is supervised have reported a single overdose death in over 30 years, Frost said.
Despite that track record, it’s unclear how Attorney General Jeff Sessions will respond to the growing push for supervised injection facilities in the U.S. The Department of Justice did not respond to a request for comment.
Last year, however, Sessions told federal prosecutors to seek the maximum penalty for all crimes, including drug crimes. And Sessions has been unfriendly to even legalized marijuana efforts in some states.
“So it strikes me as more likely than not that (Sessions) would not be supportive of safe injection facilities. But you never know for sure,” said Alex Kreit, a law professor and drug policy expert at Thomas Jefferson School of Law in San Diego.
While Sessions might personally oppose the facilities, he could let local U.S. attorneys decide how best to deal with an injection facility in their jurisdiction.
"That’s totally possible,” said Kreit. “It’s also possible that Sessions says ‘This is a terrible thing. I’m going to issue a directive advising all U.S. attorneys to try and shut these down.’”
The Controlled Substances Act may provide a loophole for jurisdictions worried about injection sites violating federal law, Kreit added. He said the CSA provides immunity to state and local officials who violate the federal law while enforcing another state or local law. It’s designed to protect undercover officers who may purchase, use or handle drugs during a sting operation.
If staff at a supervised injection site worked for a state or local government entity, "I think there's a very, very strong argument that (the immunity provision) would apply" to those workers and the facility itself, Kreit said.
If a non-profit organization ran the injection site — as Philadelphia is proposing — the state or local government would have to deputize facility employees as "agents" of the city in order to claim the immunity protection, Kreit said.
"But it would be a tougher (legal) road to climb" to make that argument, he added.
The first international injection facility opened in Switzerland in 1986. Since then, countries throughout Europe, along with Australia and Canada, have established "safe injection rooms" or "drug consumption rooms" where addicts can inject their drugs use sterile equipment in a safe environment rather in public restrooms, alleys and parks.
In San Francisco, where local police support the injection site proposal as a public health measure, city leaders are undaunted by the prospect of federal interference.
“We are not waiting to take action to save more lives,” said Rachael Kagan, spokesperson for the city’s public health department.
Needle exchange programs were also illegal and controversial when they made their U.S. debut in San Francisco in 1988, Kagan said. They’re now commonplace in many cities and are recognized as the gold standard for helping reduce HIV infections.
Other federal prosecutors have already taken a hard line. After a local study commission recommended an injection site in Chittendem County, Vt., Christina E. Nolan, the U.S. Attorney for the District of Vermont, issued a blistering statement in opposition.
Nolan said the sites are “counterproductive and dangerous” and would “encourage and normalize” heroin use. That could increase demand for the drug and the risk of overdose deaths, she said.
“Such facilities would also threaten to undercut existing and future prevention initiatives by sending exactly the wrong message to children in Vermont: (that) the government will help you use heroin,” Nolan’s statement said. “In short, opiate addicts need treatment, not a place to continue using.”
Philadelphia Health Commissioner Tom Farley said addicts need both. And for Nolan to suggest “that we can only do one or the other is foolish,” Farley said. “Of course, we can do both.”
Farley is working to find a private group to fund an injection site in Philadelphia, which logged 1,200 overdose deaths in 2017. He said the sites would serve a small sub-group of opioid addicts who shoot up multiple times a day “and despite all that we do, are not going into treatment. We want to keep them alive long enough to get them into treatment,” Farley said.
He’s hoping Louis D. Lappen, U.S. Attorney for the Eastern District of Pennsylvania, will use his enforcement discretion to let a Philadelphia site operate without federal intervention. Local police and prosecutors have already backed the plan, Farley said.
“I believe, and the rest of the people in Philadelphia believe, that the U.S. attorney for this region has better things to do than to prevent us from saving lives,” Farley said. “I can’t predict what the U.S. attorney will do, but we’re here saving lives. So we think we should be allowed to do that.”
In a statement, Lappen said his office is focused on prosecuting “large scale suppliers, street level distributors, and medical professionals who abuse their position to contribute” to (the opioid) crisis. “With these critical priorities in mind, we will consider all individual facts and circumstances to determine whether it is in the best interests of the District to use its limited resources to prosecute a particular case,” Lappen wrote.
In Seattle, U.S. Attorney Annette L. Hayes was a non-voting member of a local task force that called for creating two injection sites. But Hayes has “not been involved in any steps taken by the county and/or the city to implement” that recommendation, said a statement from her office.
Because they also refer people to drug treatment and other services, the injection facilities are often said to provide “supervised consumption services.” In Philadelphia, they’d be called Comprehensive User Engagement Sites, or CUES.
But not all public health experts are ready to commit to the concept.
An injection site in Baltimore would prevent six overdose deaths, 21 hepatitis C infections and save the city some $7.8 million a year by eliminating 108 overdose-related ambulance calls, 78 emergency room visits and 27 hospitalizations, according to researchers at Johns Hopkins University.
But Baltimore Health Commissioner Dr. Leana Wen said in a statement that the city’s public health agency is too dependent on federal money to pursue injection sites, despite “growing evidence,” that they reduce overdoses.
“We cannot take an action that would jeopardize our federal funding,” Wen’s statement said. “We require guidance from the Department of Justice about the legality of these sites.”
In California, it’s unclear what response a San Francisco injection site would elicit from Alex G. Tse, acting U.S. Attorney for the Northern District of California.
“I don’t think anybody’s quite certain what will happen,” said Frost, of the Harm Reduction Coalition in Oakland. “I think that people are taking a calculated risk by introducing this intervention” because the consequences of not doing so are already apparent.
Rather than the threat of legal action, Frost said “the thing that is more threatening to people on the ground is the risk of overdose and the loss of lives that we are seeing.”
Tony Pugh: 202-383-6013, @TonyPughDC
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