Key flashpoints in debate over ‘supervised consumption sites’
Hearing focuses on administering illegal drugs under medical oversight
FOR SEVERAL YEARS, Massachusetts lawmakers have been bandying about the idea of authorizing “supervised consumption sites” – locations where someone could use illicit drugs under medical supervision to prevent fatal overdoses. These sites could offer such services as clean needle exchanges and referrals to substance abuse treatment.
The goal is to prevent deaths from drug overdoses and illnesses from unclean needles, while providing drug users with an opportunity to seek help. While such ites exist in other countries, including Canada and Australia, they remain illegal in the United States under federal law. Opponents say these sites sanction illegal drug use without getting people into treatment.
On Monday, the Legislature’s Joint Committee on Mental Health, Substance Use and Recovery held a multi-hour hearing on bills that would allow supervised consumption sites (which are also called supervised or safe injection sites).
The biggest question is simply how effective these sites are in reducing the harms of illegal drug use. But swirling around the debate are a lot of big questions – legal, ethical, and practical.
The legal landscape
The federal Controlled Substances Act prohibits someone from knowingly maintaining a place that is used for the purpose of illegal drug use. How this applies to supervised injection sites is in litigation.
In Philadelphia, the nonprofit Safehouse is trying to open the country’s first supervised injection site. In 2019, the US Attorney for Philadelphia filed a civil lawsuit asking the federal court to declare the proposal illegal.
In 2020, a District Court judge ruled in favor of Safehouse, but before the organization could open, the US Attorney appealed. The Third Circuit Court of Appeals ruled 2-1 in favor of the government, and prohibited Safehouse from opening because it would violate federal law.
Safehouse petitioned the US Supreme Court to hear the case. The court has not yet said whether it will accept it.
The Appeals Court ruling is not binding in Massachusetts, since it only applies to states within the Third Circuit. But a US Supreme Court ruling could potentially decide the legality of the issue for the entire country.
The Appeals Court decision would also provide a precedent should the issue go through the courts in Massachusetts, although there have been issues on which appeals courts in different jurisdictions have disagreed with each other.
Even if supervised consumption sites are federally illegal, another question is whether the federal government will enforce the law, should states legalize them. For example, marijuana remains federally illegal, but the US Justice Department has generally not interfered with state-legal marijuana businesses.
Under President Donald Trump, the US Department of Justice brought the Safehouse lawsuit and gave every indication that it would not turn a blind eye to supervised injection sites. Then-US Attorney for Massachusetts Andrew Lelling said employers and users of a safe injection site would be subject to federal criminal charges. “I cannot envision any scenario in which sites that normalize intravenous use of heroin and fentanyl would be off limits to federal law enforcement efforts,” Lelling said in a 2019 statement.
But it remains an open question what enforcement would look like under a Biden administration. Biden’s pick for US Attorney for Massachusetts is former Suffolk District Attorney Rachael Rollins, a progressive Democrat who has spoken out in favor of allowing supervised consumption sites. Rollins has not yet been confirmed by the US Senate.
When federal authorities opposed the idea, Gov. Charlie Baker did, too. Baker, a Republican, said he did not want the state to do something that would violate federal law. He also questioned whether the sites were effective means of harm reduction, suggesting that there was not evidence to show that the sites were funneling people into treatment.
Baker on Monday suggested that he would remain opposed to supervised injection sites, which he called “extremely controversial within the addiction community.” He added: “I would much rather put people into treatment.”
Democratic House Speaker Ron Mariano and Senate President Karen Spilka sounded open to the idea, but non-committal, with both saying they were looking forward to learning more about it. “Right now, I’m willing to take a look at just about anything that will help improve the situation,” Mariano said.
With a growing national and state reckoning on race, the question of who is affected by the War on Drugs has become a more prominent feature of the conversation on how to address substance use disorders.
Shaleen Title, a former cannabis control commissioner and drug policy advocate who has long supported liberalizing drug policies, said Monday that current drug policies are racist. She said there are legal drugs people use every day, sometimes in problematic ways – things like caffeine, alcohol, or cigarettes. Then there are illegal drugs that result in punishment with “handcuffs and cages.”
“The reason has nothing to do with science or evidence or the relative dangers of those drugs,” Title said. “The reason is because it’s those drugs that could be scapegoated and blamed on their association with indigenous, Indian, Mexican, Chinese, and other cultures, then used to target communities of color, particularly Black and Latinx people, nationally and here in Massachusetts.”
Sen. Julian Cyr, a Truro Democrat who chairs the Joint Committee on Mental Health, Substance Use, and Recovery, said there is a real gap in who becomes involved in the justice system for drug use and who does not. Cyr suggested that white, wealthier individuals who use drugs are much less concerned about ending up in the criminal justice system than people of color.
Mass & Cass
Overhanging the hearing was the image of “Mass & Cass,” the area around the intersection of Massachusetts Avenue and Melnea Cass Boulevard in Boston, which has become a tent city for people who are homeless and struggling with substance use disorders.
Cyr said he is “shocked” that the city and state have allowed it to get to the point where it is. Several speakers said the problems make it clear that new solutions to opioid addiction are needed.
“It’s clear from Mass and Cass that what we are doing and what we are not doing is not working,” said Sen. John Keenan, a Quincy Democrat who has worked extensively on drug policy. “It’s time to try something new.”
But the scenario at Mass and Cass may also drive some opposition to supervised consumption sites. Andy Brand said he lives near the area and does not want to see another Mass and Cass spring up near a supervised injection site. “When you combine good intentions with bad policies, bad policies dominate,” Brand said, citing reports showing that large supervised injection sites in other cities have hurt nearby neighborhoods. Brand suggested that a policy of requiring people to enter treatment would be more effective.
The city of Somerville has essentially offered itself up as a guinea pig for the proposal.
Under outgoing Mayor Joe Curtatone, Somerville has been exploring the idea of opening a supervised injection site since 2019. The Boston Globe reported that Somerville commissioned a study of need and feasibility of a site, and did not find significant opposition.Hannah Pappenheim, assistant city solicitor in Somerville, said the city is willing to prepare a site and take on the risk of federal opposition. But those operating and using the site could still face criminal charges. Pappenheim said at Monday’s hearing, “State legislation minimizes the risk of litigation…. State legislation paves the way for a more expedient process in Somerville and elsewhere.”
Keenan argued that with data from other countries suggesting that supervised consumption sites foster safer drug use, reduce ambulance calls, encourage treatment, and lead to less drug use in the open, it makes sense to take Somerville up on their proposal, and use Somerville as a pilot to collect as much data as possible about the program and its effectiveness. Unless society is willing to let people with addiction die in gas station bathrooms and on the streets, Keenan said, “we have to find the best way to keep people alive.”