Heroin

Federal Judge Rules Philly Injection Site Wouldn't Violate Drug Laws

A safe place meant to help prevent overdose deaths is not the same as a crackhouse.

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A site where trained medical professionals keep watch over drug users in order to prevent overdoses is not the same thing as a drug den, and it's not a violation of federal drug laws if Philadelphia allows one to open, a federal judge ruled Wednesday.

Several American cities have been planning to allow such safe injection facilities (SIFs), hoping to fight opioid overdose deaths, reduce the spread of HIV, and get poor and homeless drug users off the streets. This ruling is a major development, but the fight is far from over. The Department of Justice simply does not want to let cities experiment with this sort of harm reduction method.

Philadelphia officials gave their approval in 2018 for the creation and operation of an independent, nonprofit, donor-funded SIF named Safehouse. It would operate in Kensington, a neighborhood struggling with public drug use and opioid-related deaths, often due to heroin tainted with fentanyl. At Safehouse, people who are addicted to drugs could shoot up in a clean environment under the watch of medical professionals who can assist in the event of an overdose—and provide information about resources to help people fight their addictions. (Safehouse won't be providing the actual drugs.)

Several countries, including Canada, have allowed SIFs as a harm reduction measure. The U.S. has not, because the feds' drug war mentality, focused on prohibition and punishment, has little room for alternative solutions.

After Philadelphia pushed forward—complete with the support and participation of former Pennsylvania Gov. Ed Rendell—U.S. Attorney William McSwain of the Eastern District of Pennsylvania went to a federal judge to try to stop it. McSwain sought out a declaratory judgment from the U.S. District Court of the Eastern District of Pennsylvania that operating a SIF would violate the so-called "crack house" provision of the Controlled Substance Act (CSA).

His plan appears to have backfired. Instead, U.S District Judge Gerald Austin McHugh ruled that a SIF is not the same as a drug den and its operation does not violate federal law.

Section 856 of the CSA makes it a federal crime to open, lease, or manage a facility "for the purpose of manufacturing, distributing, or using any controlled substance." Those who violate this part of the law face a prison sentence of up to 20 years and fines of up to $500,000. After considering this wording, McHugh ruled that Congress had not contemplated the creation of SIFs when it passed the law in 1986 or amended it in 2003. He decided that "there is no support for the view that Congress intended to criminalize projects such as those proposed by Safehouse," because at the time, nobody was talking about the use of SIFs to reduce harms of opioid addictions.

A good chunk of the 56-page decision is a dense attempt to parse the meanings of individual words within the law itself, given that the two sides disagree one what it means to operate a facility for the "purpose" of using a controlled substance. After analyzing the lengthy history of the law's creation and lawmakers' justification for it, McHugh concludes that the law was meant to apply to facilities operated by illegal drug manufacturers and dealers and to shut down drug-filled raves and parties, not to stop sites run by trained medical staff intended to keep users from hurting themselves.

McHugh ultimately determines that Safehouse does not intend to facilitate drug use and is therefore not forbidden by Section 856:

I cannot conclude that Safehouse has, as a significant purpose, the objective of facilitating drug use. Safehouse has plans to make a place available for the purpose of reducing the harm of drug use, administering medical care encouraging drug treatment, and connecting participants with social services. None of these purposes can be understood as a purpose to facilitate drug use.

McHugh flat out rejects the U.S. attorney's argument that because Congress did not specifically authorize SIFs, they are therefore forbidden. The judge notes that "the law does not default to criminalization, requiring Congress to clarify when it wishes not to incarcerate citizens." Essentially, McHugh states that it is up to Congress, not the Justice Department and not the judicial branch, to clarify the law if it wants to ban SIFs. In the meantime, he rejected McSwain's request for a declaratory judgment against Safehouse and Philadelphia.

This is just the first salvo in what's probably going to be a lengthy legal struggle. McSwain immediately promised to appeal the ruling, and U.S. Deputy Attorney General Jeffrey Rosen put out a statement warning that "Any attempt to open illicit drug injection sites in other jurisdictions while this case is pending will continue to be met with immediate action by the Department."

Even if the judge's decision survives these appeals, the only people protected from arrest will be the ones operating Safehouse. The people who go these to inject drugs would still be at risk of arrest and prosecution. Unlike local police, the Drug Enforcement Administration and the Justice Department do not typically raid, arrest, and prosecute people who are merely drug users and not dealers. But it's easy to imagine them wanting to make an example out of anybody who attempts to make use of Safehouse's services.

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  1. You keep saying “medical professionals insuring that drug users do not overdose isn’t a drug den” … but fail to explain what, precisely, is the difference.

    “McHugh ruled that Congress had not contemplated the creation of SIFs when it passed the law in 1986 or amended it in 2003. He decided that “there is no support for the view that Congress intended to criminalize projects such as those proposed by Safehouse,” because at the time, nobody was talking about the use of SIFs to reduce harms of opioid addictions.”

    LIBERTARIANS FOR JUDGES WRITING LAWS OUT OF THIN AIR — REJOICE!!!

    You realize that there is, LITERALLY, zero legal justification for his decision. If Congress intended to allow SIF…they’d pass a law or change the existing one to do so. Judges just deciding “Well, the law REALLY means this” with no factual or legal basis behind their theory is a terrifying prospect.

    1. Funny, because as I started to read the article and came upon the word “purpose”, I immediately thought that, indeed, the operation of a facility such as this would not be for the “purpose” contemplated in that passage. In other words, I independently came up with the same reasoning as the judge, and that’s just on the basis of solely those words in the article, without any further context. The facility’s purpose is not the use of controlled substances, but merely to make the use of controlled substances safer.

      If you understood the purpose of such a facility as being the use of controlled substances, then you might as well understand the purpose of a trauma surgery facility as being to cause accidents, or of a fire and rescue service as making fires or emergencies. The people working in such a facility don’t intend the people there to use controlled substances.

      1. The people working in such a facility don’t intend the people there to use controlled substances.

        While it’s not the primary purpose, they kind of do.

        If a homeless guy who didn’t use drugs showed up, set up shop in one of the booths and decided to sleep there at night, he would no doubt be removed, because his chosen activity while sitting in the booth would not conform to the purpose of the site.

        1. Don’t be so sure about that. I strongly doubt the staff would hustle such a person along, saying, “Inject something or get out of here.”

          The “problem” is that most homeless would tend to reject the company of street junkies!

          1. You may be right, but I’d be very curious to know what they’d do if someone filled a valuable booth space, never shot any drugs and just sort of ‘chilled’ for six hours.

        2. If the city were running a safe house to hand out condoms to prevent STD transmission, and a prostitute and john showed up, would you consider it legal to hand out the condoms and ignore everything else?

          Setting aside whether prostitution or drug should be illegal, of course; but ’tis a good analogy.

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    3. Yes. I admire the goal, and appreciate the irony of one government thumbing its nose at another, but what if the “crime” were rape or prostitution, where the “safe house” distributed condoms to prevent the spread of STDs? Yep, the doctors and nurses are not violating the laws themselves, but it’s hard to imagine anyone arguing it was a good policy.

      1. Or, how about cock fighting?
        We need a place with trained veterinarians on hand so that less cocks will die from cockfighting.
        The purpose of the facility isn’t cock fighting, it’s to make cock fighting safer for the animals.

        1. Won’t someone please think of the cocks?! (Other than in-house retarded twit Tony?!)

  2. Can’t believe anyone would show up to use drugs.

  3. i am having a hard time believing that making it easier for homeless drug addicts to use drugs is going to help the problem. You get more of what you reward. Make it easier for people to live on the street and use drugs, more people will do it.

    This sort of thing is an example of Libertarians’ big blind spot; they think everyone is as responsible as they are. Everyone is not as responsible as your typical Libertarian. Some people have no desire to make an honest living or improve themselves and really do prefer all things being equal to live on the street using drugs than live a normal productive life. If you think that is a problem, the solution isn’t to make doing that easier. The solution is to make them bear the full consequences of their actions so that some of them hopefully decide being a homeless drug addict isn’t worth it.

    That sounds cruel but it is the way life work. Sometimes charity is nothing but enabling and no good for anyone involved.

    1. You get more of what you reward.

      Absolutely. Incentives matter.

    2. I wish we could at least be more honest in what we’re doing it by calling it “self-harm reduction”.

      1. I don’t know what you do about these people. There are no easy or good solutions. But what you don’t do is make it worse by making it easier to live on the street and be a bum.

        The best solution is go back to having certain areas of the city where there are ultra cheap hotels and flop houses and then make it illegal to sleep on the streets. You are never going to get some people to live a normal life, but you can get them to at least get off the streets and not ruin the quality of life for everyone else.

        1. A painful problem requires painful solutions. It’s just like when you get out of shape and start exercising for the first time in ten years. It hurts, and the first eight or ten workout sessions are positively miserable.

          But you start. And some of the surrounding cities are beginning to remember the thing we used to know, but forgot yesterday.

          When a homeless junkie (or just a homeless non-junkie who has decided that pitching his tent and piling up a mountain of garbage is a lifestyle choice, maaan) keeps getting hustled out of his chosen spot and is funneled towards a sanctioned homeless shelter or camp (where there are rules), eventually he’ll reach a point where he will be incentivised into making at least a few minimally sustainable lifestyle choices.

          Seattle consciously made living under a bridge comfortable. The next thing they knew is they had a major fucking problem on their hands.

          Douglas Murray talks about this in interviews. He says that we’re in this curious place where we pretend we know everything about things we know very little about, and we have either forgotten or pretend to not know things we knew yesterday.

        2. But is this not what this injection facility is doing? Its giving people an opportunity to get off the streets (albeit for a short while…similar to a hotel). While at the same time, providing an opportunity to target them with services. While I will grant you that some of them will not be helped, many potentially will. Moreover, based on the article, this is all donor-funded (i.e., its not using government funds). If we can use private investment to help some people turn their life around, I would consider that a win. While I understand your point of just making one area of the city full of flop houses, I’m not sure that is the best strategy either. Those types of areas breed crime and corruption…and there is no way that is going to stay constrained to that particular area of the city. It spreads as it always does. And simply making it illegal to sleep on the streets won’t fix the problem either. At least this is a different strategy. You’re right, I don’t know what to do about these people either, but whatever we are doing isn’t working, so if some private entities want to try something new, I say at least let them give it a shot.

          1. While I will grant you that some of them will not be helped, many potentially will.

            I believe that statistics show that few are. I think Insight claims an alarmingly low number of SIF users who 1: Agree to help and 2: successfully complete a rehab program.

            Moreover, based on the article, this is all donor-funded (i.e., its not using government funds). If we can use private investment to help some people turn their life around, I would consider that a win.

            This program appears to be– although I think further digging is necessary to see how the flow of money often gets originated in government programs and is then ‘laundered’ through many hands so as to lose its direct connection to the funding of the SIF.

            In other cities the funding is 100% city-funded.

            And simply making it illegal to sleep on the streets won’t fix the problem either.

            And we now have real-world experience that shows that making it legal to sleep on the streets makes the problem way… WAY worse.

    3. Nevertheless, such facilities have gotten used in places where they’ve opened up. They may be used by only a small minority of injection drug users, and those people being basically irresponsible means few of them will take advantage of the other help the facility provides — but few is not 0.

      The people who work in such facilities are very cognizant of their clientele. It’s not as if they have some pie in the sky idea about what they can accomplish. What you write above is not news to them. I see nothing wrong with libertarians desiring that such operators not face legal harrassment. Just because we think someone should be allowed to pursue a certain occupation or hobby doesn’t mean we think it’s the best use of their time.

      1. And when their hobby makes the neighborhood around them unlivable and makes it harder for the people there, that is just tough shit I guess.

        Their “hobby” is basically making it easier for vagrants and criminals to hang out wherever these places are located and to give them a reason to be there.

        Regardless, they are likely making the problems they seek to solve worse. And from what you are saying, the seem to understand that yet do it anyway. I am not sure how you can see that as an endorsement of them.

      2. What I do have sympathy for is the people who live or work in the neighborhood and don’t appreciate the nuisance traffic of junkies. That’s why facilities such as these should be, and usually are, operated in neighborhoods that are already junkie-filled, so that their net effect will be to get more off the street than they draw into the neighborhood.

        1. But they just attract more people from other areas and it just makes it easier to be a junkie. I don’t think that is helping these people. You want to help them, fine. But helping them use drugs is not helping them. It is just enabling them.

    4. I think it’s important to note that this project isn’t government-funded, but operates entirely as a non-profit funded by private donations. From a libertarian perspective, interfering with its operation is a definite violation of the NAP, regardless of whether you think it’d be effective at reducing the misery of drug users in the long run or not.

  4. “A safe place meant to help prevent overdose deaths is not the same as a crackhouse”

    That’s exactly what it is.
    You just want to use different words to describe it.

    1. It is just as much of a nuisance. Imagine owning a business next to one of these places. Customers are totally going to want to come and walk pass the homeless heroin addicts to frequent your business. No, that would never have any effect at all. /s

      1. Have you ever seen Kensington, man? The junkies are already there, everywhere.

    2. As someone who’s highly skeptical of the value of SIFs, it’s not the same as a crackhouse. Not even close. But I also agree with John that to a degree it can certainly be a nuisance as well. But at least if it’s a sanctioned SIF, then you can increase police presence around the location… because it’s known and at least… hope to keep crime in check.

      My arguments against SIFs are mostly technical in regards to the short term harm-reduction gain of reducing overdoses, but having the long term second order effects of prolonging a set of other problems in perpetuity.

      Shorter: Don’t look at the repeatedly cited 2011 study of Canada’s Insite program, look at the current statistics and sharp rise in overdose deaths since then.

      1. When I was living in Atlanta a church nearby started feeding the homeless. Crimes like car break ins and muggings, which were unheard of in our neighborhood before, went through the roof. The good Methodist Progressives getting their charity on did a lot of damage to the neighborhood and the quality of life.

        Reason is forever supporting this kind of stuff but never even considers the full effects of it.

        1. Seattle hands out 400,000 needles a year to local addicts. It used to be you hand in a used needle, you get a clean needle. But then they found that drug addicts don’t act like responsible leave-no-trace eco campers, and so they dropped that requirement.

          So now needles all over the street are a big problem– and are presumably being re-used by junkies that find them but aren’t super keen on going to the needle exchange to get a clean needle. The prediction was that these harm reduction measures would reduce HIV and other infections.

          HIV diagnoses increase 286 percent among King County injection drug users

          1. I support legalizing drugs. But for legalization to work, people have to be made to bear the full consequences of their drug use. If they don’t, legalization just becomes a license to abuse drugs. If someone wants to use drugs and can do so such that they pay their own way and are not a criminal, that is their business. If they can’t, then fuck them.

            1. This is one of the extremely few things we agree on.

            2. My goal is to point out that hypodermic needles are essentially plastic straws.

              1. If you can somehow get them into the ocean then you’ll see the bans coming.

            3. That much we can agree on. I think the problem was that for so long, radical libertarians being scarce, opposition to punitive narcotics policies has fallen nearly exclusively to the redistributionist “left”, as well as to the fuck-the-Man “left” (which groups overlap of course), that drug reform has become tightly linked with such sentiment. Therefore it’s hard to gin up much political support for easing the narcotics laws without its being linked to redistribution.

              Of course this is only one of many such dilemmas faced by radical libertarians. To the point where too many radical libertarians feel so embattled that they fail to see a good thing when it comes along. Hence their contribution to TDS.

          2. That’s the sort of program I don’t see the point in continuing. By now all of the states have rescinded their prescription requirements for needles and syringes. That means the safe injection products facility already exists: the pharmacy, or theoretically any store at all now that they’re over the counter. So what’s the excuse for needle exchanges?

            But a facility for making the process safer, that I can still see. It’s a good way to collect and destroy the used sharps too.

    3. I didn’t realize that purpose of a crackhouse is to prevent overdose deaths. Interesting.

  5. McHugh ruled that Congress had not contemplated the creation of SIFs when it passed the law in 1986 or amended it in 2003.

    Wait a minute, that’s the reason it doesn’t violate federal law?

    It’s true the Framers of the constitution didn’t contemplate the creation of the internet when they wrote the first amendment.

    1. There’s a difference in how federal statutes and constitutional law are considered. There’s a few different paradigms for constitutional interpretation, but the prevailing statutory interpretation is marked by the recognition that Congress meets all the time, and if they wanted to criminalize a particular thing, they have ample opportunity to pass or amend a law to do so in the face of changing conditions. So if SIFs weren’t really a thing in ’86, and Congress hasn’t bothered to amend the law to explicitly outlaw them since they have become a thing, there’s a strong presumption of their legality, unless a plaintiff can make a really good argument otherwise (according to the theory).

      I can see how this might concern a libertarian in a broad sense, since we tend to be suspicious of judges inventing new law, but the particular way this interpretation gets applied results almost universally in a reduction of government power, or at least a presumption of legality for the people. So I think it’s positive, on the whole.

  6. Who pays?

      1. While I’m not as sensitive to the ‘who pays’ question as many are here, I don’t always believe that. When you dig into these non-profits/donations, what you find is said non-profit is essentially an NGO that receives some (or in some cases most) funding directly from the city or the county through generalized, non-specific ‘grants’ which will then used for these programs.

          1. King County also pitched in $500,000 to cover the cost of the Mental Illness and Drug Dependency tax that allows the purchase of the vehicle Seattle plans on using for its site.

            *facepalm*

        1. That’s a really good point.

        2. The welfare industrial complex

        3. Do you have evidence or is your “belief” evidence.

  7. I wish people would quit calling them “overdoses”. People aren’t dying because they took too much, in most cases. They’re dying because the product is tainted, and no one can sue over it because the product was made illegal by the government.

  8. “A safe place meant to help prevent overdose deaths is not the same as a crackhouse.”

    Yeah, but you’ll meet a lot more interesting people in a crack house than you will in an injection site.
    Then your social skills will go to shit.
    Who will love you then?

  9. “I cannot conclude that Safehouse has, as a significant purpose, the objective of facilitating drug use”

    So the judge believes that, because Safehouse isn’t trying to facilitate drug use, even though that is by definition what they do in providing safe needles and medical staff to make sure you use your drugs properly, that they are not violating any laws.

    Definitely going to be overturned.

    1. The legal definition is irrelevant to me. We know what it is. Libertarians seem to quickly abandon principle when it results in something they do not like.

      If the center results in harm to others then that is a reason to intervene and close it down. Until then the law should stay out of it.

  10. Should have put my above comment here.

    Just to reiterate. What you are looking at is basically an experiment, a clinical trial. You can argue all day about you think the expected outcomes will be but you do not know until you actually try it.

    Part of the agreement with the facility should be to a commitment collect and publish data including the effect on the local community.

    The center is not a solution to the problems of homelessness and drug addiction. The goal is harm reduction to the addict and the public. There is no reason for the government to prevent the effort.

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