On Tuesday, the U.S. Court of Appeals for the Third Circuit reversed a judge’s ruling that would have legalized the country’s first proposed safe consumption site in Pennsylvania.
It’s a setback for Safehouse, a Philadelphia-based overdose prevention nonprofit, which has led the legal charge to open the sites. But the ruling may not affect San Francisco’s plans to open a safe consumption site, particularly as the Biden administration takes over later this month.
Tuesday’s 2-1 ruling on “USA v. Safehouse” hinged on an interpretation of the “crack house statute.” Safe consumption sites would allow people to bring in drugs they purchased elsewhere so that they could use them in a safe, sterile environment with trained staff on hand to reverse overdoses and provide referrals to care. But under the crack house statute, authored by then-U.S. Sen. Joe Biden in the 1980s, property owners could be held criminally liable if they allow safe consumption sites to operate in their buildings.
The statute has been touted by Trump-appointee U.S. Attorney William McSwain, who is leading opposition to the opening of safe consumption sites in Pennsylvania. The case has bounced between courts for years. In 2019, U.S. District Judge Gerald A. McHugh stated that “No credible argument can be made” that Congress considered safe injection sites when it drafted the crack house statute, rendering it irrelevant.
The judges who made Tuesday’s ruling went the other direction. While they applauded Safehouse’s mission to reduce overdoses, in the end, Circuit Judge Stephanos Bibas wrote, “Congress has made it a crime to open a property to others to use drugs. And that is what Safehouse will do.”
So where does this leave San Francisco? First off, Tuesday’s ruling only affects Delaware, New Jersey and Pennsylvania. California could still move forward. But the tone it sets could impact how likely legislators in California are to pass the latest supervised consumption site bill, which was re-introduced by state Sen. Scott Wiener several weeks ago.
“That’s always a hard bill,” he told the Examiner in an interview last month. When it last landed on the governor’s desk in 2018, Wiener said it “passed each House with the bare minimum number of votes. It’s never an easy bill.”
While Safehouse’s case gets batted around from one court to another, drug policy advocates are looking beyond the courts to the new administration taking over next week.
The crack house statute is very open to interpretation, and doesn’t have to be implemented. If taken at face value, our marijuana dispensaries would be illegal under the statute, but in 2013 then-Deputy Attorney James Cole wrote a memo circumventing the law. Incoming Attorney General Merrick Garland has the power to do something similar.
Which begs the question: How does Garland feel about drugs? And is Biden ready to undo a statute he created more than three decades ago?
The truth is, no one knows yet.
“I don’t think we have yet any clear insight or guidance from the Biden transition team on how they would approach supervised consumption sites,” says Lindsay LaSalle, managing director of policy at the Drug Policy Alliance. She notes that Biden has led the charge on amendments to his crack house statute, and made clear that its intention was never to include supervised consumption sites.
“One thing that was clear in Biden’s campaign was that he wants to see a shift in rhetoric and policy in terms of how we treat drug use, and really approach it with compassion and health-based treatment interventions, as opposed to the hammer of incarceration and punitive punishments,” La Salle says. “I’m hoping that translates to the people he’s putting into positions where they would have discretion to make really important determinations about the outcome of things like safe consumption sites.”
As for Garland, the verdict is still out. Little has been released about his view on drug policies and public health, aside from a single case where he deferred to the Drug Enforcement Administration’s decision to classify marijuana as a Schedule 1 drug, placing it in the same category as heroin and methamphetamine.
But there is someone joining the Biden Administration who has made his viewpoint in safe consumption sites clear. California Attorney General Xavier Becerra, who has been picked to lead the Health and Human Services Agency, voiced his support for safe consumption sites in a multi-state amicus brief.
“Safe injection sites like Safehouse are an innovative tool to combat the opioid epidemic and drug dependency while reducing overdose death and transmission of diseases,” Becerra stated. “California has always been a trailblazer, and we’re committed to doing what it takes to keep our communities healthy and safe.”
Wiener says he’s hopeful the new administration will bring about much-needed change.
“President-elect Biden has clearly evolved on criminal justice issues since the 1990s,” he told the Examiner. “I’m cautiously optimistic that the Biden-Harris Administration will take a much more progressive and science-based approach to drug policy, including safe consumption sites.”
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