Just over a week before a more reform-friendly administration takes over in Washington, the US harm reduction movement was dealt a significant blow. On January 12, a three-judge panel from the Third Circuit Court of Appeals voted to overturn a Philadelphia District Court’s prior ruling that effectively legalized safe consumption sites (SCS).
In a 2-1 decision, the Appeals Court adopted a broad interpretation of 21 USC S856—the section of federal code known as the “crack house statute” that was added to the Controlled Substances Act in 1986, making it a felony to “knowingly open, lease, rent, use, or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance.”
The nonprofit group Safehouse—founded in 2018 by former Pennsylvania Governor Ed Rendell, along with Ronda Goldstein of the AIDS Law Project of Pennsylvania and Jose Benitez, executive director of Prevention Point Philadelphia—has been seeking to open the first sanctioned SCS in the United States. The group maintained that the law does not apply to SCS, since the “purpose” of a facility such as Safehouse is not to facilitate drug use, but to to save lives.
Writing for the court, Justice Stephanos Bibas took aim at Safehouse’s interpretation of the language of the law, and included would-be clients of the site as pertinent actors in determining intent.
“Safehouse’s visitors will have the significant purpose of drug activity,” he wrote. “True, some people will visit Safehouse just for medical services or counseling. Even so, Safehouse’s main attraction is its consumption room. Visitors will bring their own drugs to use them there. And many of Safehouse’s services will revolve around the visitors’ drug use there.”
As I wrote in 2015, before he was appointed to the Third Circuit by President Donald Trump, Bibas holds some extreme views that include simplistic moral pronouncements on the roots of criminal behavior (a lack of self-discipline), the nature of addiction (bad choices) and prison violence (incarcerated people aren’t praying enough).
Many in the public health and harm reduction communities, distracted by COVID-19 and the recent political crisis, were caught off guard by the latest ruling, which was argued before the court back on November 16.
Calling the decision “misguided,” Lindsay LaSalle, managing director of policy for the Drug Policy Alliance*, said in a statement: “As the COVID-19 pandemic is exacerbating the already devastating overdose crisis, the Third Circuit’s reversal of the earlier court’s decision—which held that safe consumption sites do not violate federal law—will inevitably result in the unnecessary loss of countless lives.”
“We still believe this is a lifesaving initiative and we are as committed to the idea as ever.”
Reached for comment on the day of the ruling, Safehouse’s Ronda Goldfein seemed in a better mood than she might have been, however. “We are certainly disappointed that these two judges didn’t see it our way,” she told Filter, “but two judges’ opinions of the law don’t mean they are correct. We still believe this is a lifesaving initiative and we are as committed to the idea as ever.”
I also spoke with one of the founders of a Philadelphia activist group that was quietly planning to open an unsanctioned SCS in 2017, who asked to remain anonymous to avoid potential legal repercussions.
“What many of these judges and legislators don’t think about is that no matter what they decide is illegal, or not legal, or however they want to interpret the possibility of establishing a lifesaving harm reduction intervention that has been proved to work over decades … consumption sites already exist, whether they like it or not,” the activist said. “I honestly don’t care what the court thinks. The evidence and the firsthand experiences of those in other countries with legal SCS speak for themselves: Safe consumption sites save lives, they prevent the spread of communicable diseases, and they affirm the humanity of people who use drugs. The longer we talk, the more people die, and those deaths are in part on the hands of those who continue to oppose harm reduction.”
Regarding legal options, Goldfein said that Safehouse could take the case back to the District Court level and reargue the case based on the Religious Freedom Restoration Act—which grants religious exemptions under federal law (and was most famously invoked by Hobby Lobby to avoid offering contraceptives under its employee health plan). Safehouse included a RFRA argument in its initial filing but it became moot after Judge McHugh ruled in the group’s favor on statutory grounds.
Another option—to push ahead to the Supreme Court—seems unlikely to bear fruit, given the court’s current composition.
“I am hopeful that a new administration, one that believes in science, will see it differently.”
Going back to the lower court leaves open the possibility that a Biden Justice Department will be more sympathetic to Safehouse’s position. “I am hopeful that a new administration, one that believes in science, will see it differently,” said Goldfein.
However, given that Biden, as a Senator with a long history of supporting the drug war, penned a portion of the law in question, it’s very far from a given that he would embrace SCS.
Having covered the fight for SCS in Philadelphia since 2017, I found the latest news a shock but not a surprise. Ever since Mayor Jim Kenney’s reluctant January 2018 embrace of SCS (which came two months after the election of District Attorney Larry Krasner, who had already said he wouldn’t prosecute good-faith efforts to prevent overdoses), local pushback has mounted.
Following two significant court victories, in which Federal Judge Gerald McHugh Jr. first declared Safehouse’s mission did not violate federal law, and then refused to stay the ruling until the Third Circuit heard the federal government’s appeal, Safehouse announced it would open its first facility in South Philadelphia, surprising many who had been told the group would open a site in north Philly’s Kensington neighborhood first.
A press conference on February 26, 2020 was packed with angry South Philly residents, some of whom took out their vitriol on Gov. Rendell personally, as Filter reported. “You blindsided us!” shouted one woman. “This is unacceptable, and you were a sneak about it. Look at us when we tell you, Mr. Rendell: You were a sneak. I will no longer call you governor because you’re not a governor, you’re a sneak.”
The following week saw hundreds of anti-SCS protesters take to the streets, many of them wearing pro-Trump swag and MAGA hats. But local Democrats also promised that no site would open in Philadelphia. One councilmember introduced legislation to require 90 percent community support before a SCS could open in any neighborhood.
But another man’s words ring in my ears today. When I reported for Filter on Safehouse’s big court win in October 2019, Alex Kral, a leading proponent and researcher of SCS, wasn’t ready to celebrate.
“Having been at this for 12 years and having had so many victories nullified along the way, I’m still a bit wary of what comes next,” he told me. “The champagne isn’t popping yet.”
It’s sad to have to give credit where it’s due, but he called it.
*DPA previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.
Photograph of overdose victims’ images displayed outside a Safehouse hearing in Philadelphia in 2019 by Christopher Moraff