September 09, 2019
Philadelphia could become the first U.S. city to offer opioid users a place to inject drugs under medical supervision. But lawyers for the Trump administration are trying to block the effort, citing a 1980s-era law known as “the crackhouse statute.”
Justice Department lawyers argued in federal court Thursday against the nonprofit, Safehouse, which wants to open the site.
U.S. Attorney William McSwain, in a rare move, argued the case himself. He said Safehouse’s intended activities would clearly violate a portion of the federal Controlled Substances Act that makes it illegal to manage any site for the purpose of unlawfully using a controlled substance. The statute was added to the broader legislation in the mid-1980s at the height of the crack cocaine epidemic in American cities.
Safehouse argued the law does not apply because the nonprofit’s main purpose is saving lives, not providing illegal drugs. Its board members said that the so-called crackhouse statute was not designed to be applied in the face of a public health emergency.
“Do you think that Congress would want to send volunteer nurses and doctors to prison?” Ed Rendell, the former Philadelphia mayor and Pennsylvania governor who serves on Safehouse’s board, asked after the hearing. “Do you think that’s a legitimate result of this statute? Of course not, no one could have ever contemplated that, ever!”
Safehouse earned the backing of Philadelphia’s current mayor, Jim Kenney, the health department and district attorney, who announced they would support a supervised injection site in January 2018 as another tool to combat the city’s dire overdose crisis.
More than 1,100 people died of overdoses in Philadelphia in 2018 — an average of three people a day and triple the city’s homicide rate.
In response, various harm-reduction advocates and medical professionals founded Safehouse, created a plan for its operations and began scouting a location.
But the Trump administration sued the nonprofit in February to block it from opening.
In June, the Justice Department filed a request for motion on the pleadings — essentially asking the judge to rule on the case based on the arguments that had already been submitted. Since then, a range of parties have filed amicus briefs in support of and opposition to the site. Attorneys general, mayors and governors from across the country filed briefs backing Safehouse, while several neighborhood associations in Philadelphia’s Kensington section and the police union filed against it.
U.S. District Judge Gerald McHugh requested an evidentiary hearing to learn more about the nuts and bolts of how the facility would work were it to open. At that hearing, in August, Safehouse’s legal team, led by Ilana Eisenstein, explained that Safehouse would not provide drugs but people could bring their own to inject while medical professionals stood by with naloxone, the overdose reversal drug. They said Safehouse would also be an opportunity for people to access treatment, if they were ready.
Safehouse vice president Ronda Goldfein said the only difference between what Safehouse would do and what’s already happening at federally sanctioned needle exchanges and the city’s emergency departments is that the injection would happen in a safe, comfortable place.
“If the law allows for the provision of clean equipment, and the law allows for the provision of naloxone to save your life, does the law really not allow you to provide support in that thin sliver in between those federal permissible activities?” she said.
McSwain contended that operating in that “sliver” is exactly what makes Safehouse illegal.
Much of the debate at Thursday’s hearing revolved around interpreting the word “purpose.” The statute in the Controlled Substances Act makes it illegal for anyone to “knowingly open … use or maintain any place … for the purpose of … using any controlled substance.”
The government said it’s simple: Safehouse’s purpose is for people to use drugs. McSwain conceded it will also provide access to treatment, but so does Prevention Point, the city’s only syringe exchange. Effectively, he argued, the only difference between Safehouse and what’s already going on elsewhere would be that people could inject drugs at Safehouse, which is prohibited by the statute.
“If this opens up, the whole point of it existing is for addicts to come and use drugs,” McSwain said.
Safehouse said its purpose is to keep those at risk of overdose safe from dying.
“I dispute the idea that we’re inviting people for drug use,” Eisenstein argued. “We’re inviting people to stay to be proximal to medical support.”
McSwain conceded that if Safehouse were to offer the medical support without opening up a space specifically for people to use drugs, the statute would not apply.
“If Safehouse pulled an emergency truck up to the park where people are shooting up, I don’t think [the statute] would reach that. If they had people come into the unit, that would be different,” he said. Mobile units and tents in parks are supervised injection models that other cities have implemented.
Safehouse has also said it hasn’t ruled out the idea that it might incorporate a supervised injection site into another medical facility or community center, which would indisputably have other purposes.
McSwain ultimately argued that Safehouse had come to the “steps of the wrong institution,” and that if it wanted to change the law, it should appeal to Congress. He accused Safehouse’s board of hubris, pointing to Safehouse president Jose Benitez’s testimony at the August hearing, where he acknowledged that they hadn’t tried to open a site until now because they feared the federal government would think it was illegal and might shut it down.
“What’s changed?” asked McSwain. “Safehouse just got to the point where they thought they knew better.”
“Either that, or it’s the death toll,” Judge McHugh replied.
San Francisco, Seattle, New York City, Pittsburgh and Ithaca, N.Y., are among other U.S. cities that have expressed interest in opening a site and are watching the Philadelphia case closely. In 2016, a nonprofit in Boston opened a room where people could go after injecting drugs to ride out their high, with nurses equipped with naloxone standing by.
The Justice Department’s motion for the judge to rule on the pleadings is pending. McHugh could decide he now has enough information to issue a ruling, or he might request more hearings, arguments or a full-fledged trial.
Safehouse’s legal team said that if the judge ruled in its favor, it might request a preliminary injunction in the form of relief to allow the facility to open early.
“We recognize there’s a crisis here,” said Safehouse’s Goldfein. “The goal would be to open as soon as possible.”