Supervised drug use proponents trudge onward

Some appear undaunted by legal hurdles

MARYLOU SUDDERS, the governor’s secretary of health and human services, led a state commission that concluded supervised drug consumption sites would be useful tools for Massachusetts because they prevent overdose deaths and stem the spread of disease. But it’s never been clear how far she would go to launch the sites, given that US Attorney Andrew Lelling says he would prosecute anyone who set one up.

On Wednesday, testifying before the Mental Health, Substance Use and Recovery Committee, Sudders laid out some of the legal barriers along the way, spelling out her expectation of what would need to happen first before one could open.

“Clearly there would need to be legislative changes at both the federal and state level and/or judicial intervention, because it’s clearly illegal,” Sudders said.

Would any organization try to open one despite the likely legal consequences?

“Would there be an act of civil disobedience? I have no idea,” Sudders said. “People would do it at great risk of their agency, their professional licenses and the like.”

The state commission that Sudders led ultimately found supervised drug consumption sites help prevent overdose deaths and stop the spread of disease, recommending a pilot program for one or more sites as long as they “receive local approval and include a rigorous evaluation of the outcomes for individuals and impact on the surrounding area and municipality.”

But some in Massachusetts are willing to hazard the consequences of federal enforcement, and there is already a legal test underway in Philadelphia. Attorneys general in seven states – but not Massachusetts – recently signed onto an amicus brief arguing that the Philadelphia nonprofit Safehouse needs “the freedom to implement innovative treatment programs to save lives,” according to The Philadelphia Inquirer.

Using the federal crackhouse statute, US Attorney William McSwain has sought to block the opening of a Safehouse supervised drug use site, according to the paper, which reported Judge Gerald McHugh hasn’t decided whether to hold a full trial or not.

“I take the position that it’s not illegal under federal law, and I think the court in Philadelphia is going to grapple with that very question,” said Rep. Jeff Roy, a Franklin Democrat, who said local facilities should not wait for the Philadelphia case to work its way through appellate courts.

But that doesn’t mean Bay State clinics should open up a supervised drug use facility immediately, according to Sen. Cindy Friedman, an Arlington Democrat, who shares Roy’s point of view.

“There is the whole legal issue, OK. But parallel to that it’s all of the work you have to do to set up a pilot so that it is successful,” said Friedman, who said that would mean working with local stakeholders. “We still have to do that work. And we’re not going to shove this down anybody’s throat. No legislation’s going to say, ‘You have to open a safe consumption site.’”

As it stands, lawmakers only have a “placeholder” bill to address the various state regulatory issues surrounding such a facility, and Roy said that state policymakers would need to figure out how to deal with professional licensing issues and tort liability to provide a solid legal basis for the facilities in Massachusetts.

In a statement, Senate President Karen Spilka noted that the fiscal 2020 budget that lawmakers sent to Gov. Charlie Baker this week includes $5 million set aside to implement the recommendations of the commission that Sudders led.

“We will continue to support the recommendations set forth by the Commission,” Spilka said, suggesting there may be future legislative action for establishing one or more pilot sites, as recommended by the commission.

Lelling, tasked with enforcing federal law within Massachusetts, has made clear that he and the US Department of Justice would consider both criminal and civil remedies to block any attempts at establishing such a site.

“There are tools, through both the civil and criminal process, that we would consider, in conjunction with our counterparts at the Department of Justice,” Lelling said in a statement earlier this year. “I am not prepared to discuss exactly what would happen in Massachusetts, other than to say that injection sites would be met with some kind of federal enforcement effort by my office.”

Marc McGovern, a proponent of supervised drug use sites and the mayor of Cambridge, acknowledged that finding a particular location for such a facility would be a challenge and said his city’s top executive, City Manager Louis DePasquale, is concerned that if Cambridge has the only one around, it could create a draw that would sap city services.

“There was some concern about what they call the honeypot effect,” McGovern said.

Sudders presented an overall positive view of supervised consumption sites to the committee, saying that as of March there has not been a fatal overdose at such a facility in the countries that permit them, and in Toronto and Montreal, which followed Vancouver in the establishment of such facilities in Canada, there has been a reduction in drug overdose deaths overall and lower levels of HIV transmission.

“Supervised consumption sites are an effective harm-reduction tool in the countries where they’ve been implemented,” Sudders said.

Given the scale of the opioid crisis, which for years has killed well over 100 people per month in Massachusetts, some are urging for swift action to establish a facility where people addicted to drugs can be monitored while they use their illicit substances, and potentially steered toward treatment programs.

Fred Ryan, the former Arlington police chief, told lawmakers that there are informal supervised drug use sites dotted across the state, but it makes more sense to establish sanctioned and regulated facilities for people to use dangerous illicit drugs.

“The reality is, senator, outreach workers, police officers, social workers and others in this Commonwealth are coaching family members, caregivers and loved ones to set up safe-use sites in their own homes and to not allow their loved ones to use alone so we can be sure that they survive, and move on and hopefully make it into recovery” said Ryan, who now handles government relations for Alkermes, which produces the opioid-addiction treatment Vivitrol. “It’s happening whether the Legislature passes a law or not. I’ve done it.”

At Supportive Place for Observation and Treatment, or SPOT, run by Boston Health Care for the Homeless, medical staff can care for people after they have used illicit drugs elsewhere, according to Dr. Jessie Gaeta, chief medical officer for the organization. But unlike heroin, the prevalent and powerful opioid fentanyl can trigger an overdose within seconds of injection, Gaeta said, identifying a “clear treatment gap.”

“We’re clearly seeing deaths that we can’t and aren’t designed to prevent,” Gaeta told lawmakers.

At SPOT, medical staff tend to see people who walk in after ingesting a cocktail of drugs, some of which take longer to reach full effect, and they also care for patients carried in by friends, or brought in by outreach workers and police, Gaeta said.

“They typically will walk in and say, ‘I took a little bit more of X, Y or Z today, and I’m worried. I’m not sure what’s going to happen. Do you mind if I stay here?’

The people treated at SPOT are “very respectful” of the ban on using drugs at the facility, which isn’t a recreational hangout but is instead a rapid-response clinic, Gaeta said.

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Andy Metzger

Reporter, CommonWealth magazine

About Andy Metzger

Andy Metzger joined CommonWealth Magazine as a reporter in January 2019. He has covered news in Massachusetts since 2007. For more than six years starting in May 2012 he wrote about state politics and government for the State House News Service.  At the News Service, he followed three criminal trials from opening statements to verdicts, tracked bills through the flumes and eddies of the Legislature, and sounded out the governor’s point of view on a host of issues – from the proposed Olympics bid to federal politics.

Before that, Metzger worked at the Chelmsford Independent, The Arlington Advocate, the Somerville Journal and the Cambridge Chronicle, weekly community newspapers that cover an array of local topics. Metzger graduated from UMass Boston in 2006. In addition to his written journalism, Metzger produced a work of illustrated journalism about Gov. Charlie Baker’s record regarding the MBTA. He lives in Somerville and commutes mainly by bicycle.

About Andy Metzger

Andy Metzger joined CommonWealth Magazine as a reporter in January 2019. He has covered news in Massachusetts since 2007. For more than six years starting in May 2012 he wrote about state politics and government for the State House News Service.  At the News Service, he followed three criminal trials from opening statements to verdicts, tracked bills through the flumes and eddies of the Legislature, and sounded out the governor’s point of view on a host of issues – from the proposed Olympics bid to federal politics.

Before that, Metzger worked at the Chelmsford Independent, The Arlington Advocate, the Somerville Journal and the Cambridge Chronicle, weekly community newspapers that cover an array of local topics. Metzger graduated from UMass Boston in 2006. In addition to his written journalism, Metzger produced a work of illustrated journalism about Gov. Charlie Baker’s record regarding the MBTA. He lives in Somerville and commutes mainly by bicycle.

Despite Lelling’s vow to use his office’s powers to stop a supervised consumption site, Gaeta said she believes Health Care for the Homeless would be willing to open one if lawmakers asked.

“I think if the state of Massachusetts asked us to operate a supervised consumption facility, we would,” Gaeta said in an interview.