An “obscure” provision of the 1970 Controlled Substances Act protects states or cities who establish safe injection sites from federal prosecution, claims a forthcoming paper in the Boston College Law Review.
Safe injection sites, where substance abusers can self-administer drugs in a controlled environment under medical supervision, are recommended by some experts as a way to save lives in the opioid epidemic, and help individuals get supervised counseling.
At least 13 cities and states are considering them, and four cities—New York, Philadelphia, San Francisco, and Seattle—have announced plans to open sites. But the Department of Justice, reflecting the view of critics who claim they will encourage drug use and crime, has pledged “swift and aggressive action” against any jurisdiction that tries to start one.
In a New York Times op ed last August, Deputy Attorney General Rod Rosenstein warned such sites would be prosecuted under federal laws that make it a felony to “maintain any location for the purpose of facilitating illicit drug use.”
“Proponents of injection sites say they make drug use safer, but they actually create serious public safety risks,” wrote Rosenstein in his opinion column, entitled, “Fight Drug Abuse, Don’t Subsidize It.”
“Additionally, injection sites destroy the surrounding community. When drug users flock to a site, drug dealers follow, bringing with them violence and despair, posing a danger to neighbors and law-abiding visitors. ”
The feds say that government-run injection sites violate the so-called “crack house statute” passed in the mid-1980s making it a crime to make property available to others “for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.”
However, Alex Kreit, a visiting professor at the Drug Enforcement and Policy Center at the Ohio State University Moritz College of Law, claims the Act also contains an “obscure provision that immunizes officials” who violate federal drug laws in the course of “the enforcement of any law or municipal ordinance relating to controlled substances.”
“This provision was almost surely intended to protect state and local police officers who possess and distribute drugs in connection with undercover operations,” Kreit wrote in his forthcoming Boston College Law Review article.
“But, I argue, the text of the immunity provision and the little case law that exists interpreting it suggests it could shield government-run safe injection sites from federal interference.”
According to Kreit, safe injection sites are the “next battlefield” in the ongoing conflict between state and federal drug laws.
Kreit observed that the debate about safe injection sites so far has largely been over whether federal prosecutors would overlook the “crack house” statute, in the same way that they have been asked to turn a blind eye to marijuana use in states that have legalized it.
But he says the loophole in existing law may make the debate irrelevant.
“Indeed, it is even possible that the provision could immunize a privately run facility, if the operators were formally deputized as “duly authorized officer[s]” in connection with a state or local safe injection law,” he wrote.
He conceded that Trump administration is unlikely to be persuaded, but he noted there was already widespread bipartisan support for finding alternatives to the nation’s failed “war on drugs.”
“It is possible, of course, that the political winds will shift again, especially since the Trump administration has taken steps to revive the drug war,” he added. “But, if support for replacing the war on drugs with a new strategy does continue to grow, a lingering question is what the new strategy will look like.
“Safe injection sites may provide a perfect test case.”
Safe injection sites have been operating for decades in other countries, including Canada, and a wealth of evidence suggests they can reduce overdose deaths and the spread of blood-borne diseases among injection drug users, said Kreit.
The site operated on the east side of Vancouver, Canada, called Insite, claims nearly 16,000 people have safely used its facilities since it opened in 2006, and is currently visited by an average 720 individuals daily.
The full article is available here.
This summary was prepared by TCR News Intern J. Gabriel Ware. Readers’ comments are welcome.