The city wants to experiment with a radical harm-reduction approach to drug abuse. The DOJ should get out of the way.
Facing a growing drug crisis, Philadelphians have planned a radical solution: a “safe consumption site” where users can take heroin under medical supervision. Earlier this month, however, the Department of Justice brought a civil suit to block the city’s — and the nation’s — first SCS.
In so doing, the DOJ honored the letter of federal law. But it also stood in the way of an idea that could save lives amid a crushing opioid crisis. In the name of an experiment with enormous potential benefit, the agency should reconsider. Better yet — if less of a political possibility — Congress should carefully rethink the legal regime that treats these experiments the same way it treats crack houses.
In January of last year, Philadelphia’s leadership gave permission, although not funding, to supervised consumption sites within the city. In response, community health leaders incorporated a planned SCS under the name Safehouse, with a board of advisers that includes public-health experts and former governor Ed Rendell.
Drug users visiting Safehouse would be provided with a safe environment, including clean needles and fentanyl test strips. After using, clients would be observed on site, with a staff member standing by with life-saving naloxone. Safehouse staff would not distribute drugs, except for FDA-approved medications for opioid-use disorder.
This arrangement could stop overdose deaths, protect users from fentanyl adulteration and infection, and expand medication-assisted treatment.
It’s clear why Philly signed off: Like the rest of America, it’s in the midst of an overdose crisis. Drug-overdose deaths in the city tripled between 2010 and 2017, according to official data; ER visits for overdoses doubled in the same period. Seventy-four percent of deaths involved fentanyl. Veteran Philadelphia drug reporter Christopher Moraff has noted an increase in the number of HIV infections, indicating dangerous needle-sharing.
Although city officials backed Safehouse, the Department of Justice didn’t like what it saw. In early February, U.S. Attorney William McSwain brought a civil suit, claiming that Safehouse was in violation of the Controlled Substances Act, specifically section 856, the “Crack House Statute.” Section 856 prohibits owning or operating a place for the purposes of selling, storing, distributing, or using a controlled substance — regardless of intent.
“The law is clear, and my job is to respect and enforce the rule of law,” McSwain said in his announcement of the lawsuit. “If Safehouse wants to operate an injection site, it should work through the democratic process to try to change the law.”
That looks unlikely. Supervised consumption sites exist today in Australia, Canada, and ten European countries; the oldest opened in 1986. But especially in the United States, they remain deeply controversial — respondents to a recent nationally representative survey were more likely to support arguments against SCSs than in favor.
Supporters of SCSs focus on mitigating the risks of drug use: what’s called “harm reduction.” They argue that medical oversight and easy access to naloxone save the lives of users, as well as reducing their exposure to infection. Supporters also point out that SCSs can help users get treatment and allow police to refocus limited resources on serious criminals.
Opponents in turn emphasize the risks of SCSs. Government approval of drug use may normalize harmful behavior, they contend, causing more deaths. They also worry about effects on the community, arguing that having a designated space for drug use may promote crime or disorder. Some simply say that the government should not sanction otherwise illegal behavior.
Research, such as it currently exists, paints a picture more sympathetic to the first view, but only mildly so. The RAND Corporation, a nonpartisan think tank, recently released an overview of the research on the effectiveness and adverse consequences of SCSs. “Many SCSs have been around for 15 to 30 years,” the authors note. “Persistence does not imply effectiveness, but it seems unlikely that these SCSs — which were initially controversial in many places — would have such longevity if they had serious adverse consequences for their clients or communities.”
Indeed, the nine rigorous (“quasi-experimental”) studies RAND identified found that SCSs either reduced or did not increase crime rates, overdoses, and overdose-death rates. Many of the professionals RAND interviewed, although they voiced concerns about SCSs, saw the sites as a potentially valuable strategy for reducing deaths and connecting users to treatment.
Still, the literature isn’t a home run for SCSs. The quasi-experimental findings all came from just three sites, which limits their general applicability; other studies lacked the sort of design needed to justify strong inferences. Even within the quasi-experimental literature, RAND expressed doubt about the control groups that studies employed.
In other words, there’s evidence to support a favorable view of SCSs, but it’s not rock solid. Just because SCSs have (maybe) worked elsewhere doesn’t mean they’ll work in the United States.
But if they do, they could be an invaluable tool for fighting a deadly crisis that both city governments and the DOJ are committed to combating. And desperate times call for desperate — even experimental — measures.
Drugs killed more than 70,000 people in 2017, outpacing every other non-medical cause of death and reaching the highest drug-death rate in the modern era. Much of the drug supply is now adulterated with fentanyl, meaning that any dose could be a person’s last. Recent research indicates that hepatitis C infections have begun to rise after years of decline, meaning needle sharing will kill even more people.
Philly’s experimentation is in fact the whole point of America’s federal system. Letting one municipality take the plunge can teach all of the other cities struggling with the drug crisis — and there are many — what does and does not work. For the DOJ to back off, much as it has with state-level decisions to legalize marijuana, would simply be for it to defer to that federalist principle, with all of the benefits that have historically accompanied it.
The ideal, if unlikely, solution would be for Congress to amend the Crack House Statute. Lawmakers could exclude from its terms licensed medical facilities with municipal or state approval to distribute paraphernalia or oversee drug use, while imposing stringent monitoring requirements. Federalist deference combined with mandatory monitoring would let Congress strike an appropriately cautious balance.
A more practical (and politically likely) alternative would be for the government to take a wait-and-see approach. In fact, the Eastern District has already exercised a degree of prosecutorial discretion by choosing to bring a civil rather than criminal suit. That shows it understands that moderation is warranted in this situation.
Not suing Safehouse would not stop DOJ from prosecuting shadier clinics under the CSA, nor oblige it to stop targeting real drug dealers. Instead, it would free up limited federal resources to target the opioid crisis where it really matters. And if the Safehouse experiment is shown to increase harm, then DOJ retains its discretion to prosecute other sites in the future.
In the time it took you to read this article, another American has probably died of a drug overdose. Philadelphia wants to slow that rate through any means necessary — including pursuing radical, but promising, solutions such as SCSs. U.S. Attorney McSwain has his heart in the right place in upholding the law as written; but in so doing, fewer lives may be saved. Always, but especially now, life-saving has to be our priority. Let Philly try.