A new report from the Congressional Research Service explains how Congress and President Biden could authorize safe consumption sites (SCS) and protect operators from criminal prosecution. But the same report, published November 22, also indicates how Congress might explicitly ban SCS, by amending federal law or revoking funding. It comes as the Biden administration is set to make a key court filing that will do much to reveal its position on the issue.
Safe consumption sites (also known as overdose prevention centers, among other terms) are spaces where people can use illicit drugs; trained staff and peers are ready to intervene with naloxone and other resources to avert any overdoses. Many SCS also provide sterile equipment to prevent transmission of bloodborne diseases, and connect people to health and social services. Close to 200 authorized SCS of different kinds operate in 14 countries around the world. No one has ever died of overdose at any of them, and the sites unequivocally save lives, as much research has shown. Yet although two SCS are now authorized and operating in New York City, their legal status remains ambiguous in the United States.
“It’s encouraging and exciting that there’s a growing recognition of the need to embrace a harm reduction strategy that’s proven and used in other parts of the world to save lives,” Miriam Krinsky, the executive director of Fair and Just Prosecution, told Filter. Last year, her organization brought together 80 natiowide criminal justice leaders to write a public statement supporting Safehouse—an organization that has long been fighting a federal lawsuit to open an SCS in Philadelphia—and urging the Biden administration to explicitly allow SCS.
The report compares this approach to the “Rohrabacher-Farr amendment,” which similarly protects medical cannabis.
The congressional report seeks to set out what elected lawmakers could do to resolve this issue. In a section about “Supervised Consumption Sites,” it explains these centers have no clear legal protections, with much “uncertainty” over their status under the federal Controlled Substances Act.
Former federal prosecutor William McSwain, a Trump-era appointee, accused Safehouse of violating the so-called federal “crack house” statute, part of the 1986 Anti-Drug Abuse Act. Safehouse won a lower court ruling, only to have it overturned on appeal in the last days of Trump’s tenure. After an unsuccessful attempt to have the US Supreme Court review it, the case went back to the lower court where it remains in litigation.
Congress could address this by exempting SCS in general from federal drug laws, the report outlines. A second option is to create special exemptions for specific sites, protecting them from arrests and prosecution if they follow state and local laws. The report compares this approach to a special rider Congress has to approve every fiscal year: the “Rohrabacher-Farr amendment,” which similarly protects medical cannabis.
First introduced in 2001 but first approved only in 2014, the Rohrabacher-Farr amendment prohibits the US Department of Justice from using federal funds to prosecute medical cannabis businesses in states that have legalized it, so long as they follow state and local laws.
“It would be incredibly helpful for Congress to make clear that SCS are exempt from the CSA in its entirety.”
“Certainly one option is for the administration to embrace the view that [SCS are] not what the Controlled Substances Act ever intended to cover,” Krinsky said. “That could be done through the DOJ, but it could also be done by Congress being engaged. I do think it would be incredibly helpful for Congress to make clear that SCS are exempt from the CSA in its entirety.”
Alternatively, the report says, Congress could create a special licensing and registration system, which would allow SCS to open if they comply with federal rules and are approved. The report compared this model to methadone clinics, which are heavily regulated by the Drug Enforcement Administration (DEA) in a way that undermines patients’ rights and freedoms.
The congressional report also explains how lawmakers could take action to explicitly ban SCS, by amending the “crack house” statute to specifically apply to these centers. Congress could also cut off federal funds to SCS operators, and threaten to cut funding to any state or city that allowed SCS to open. The report cites one proposal already introduced in Congress to do exactly this: the so-called “Crack is Whack Act,” sponsored by Representative Nicole Malliotakis (R-NY).
Pursuing such a course would immediately put the feds in conflict with some state and local jurisdictions. “We know states are increasingly looking for strategies to save lives, and parts of the country are very anxious and interested for opportunities to put overdose prevention sites in place,” Krinsky said.
In November 2021, New York City allowed OnPoint NYC to open the country’s first two sanctioned SCS. The sites averted 63 overdoses in their first three weeks and intervened in over 600 overdoses in their first nine months, keeping everyone alive. The Rhode Island state legislature and governor have meanwhile approved a pilot program to open SCS, although none are operating yet. State legislatures in Illinois, New Mexico and Massachusetts have also considered allowing SCS. The California legislature has twice passed an SCS pilot bill, but Democratic governors sadly vetoed the bills on both occasions.
Meanwhile, Safehouse’s legal challenge is continuing in the US District Court for the Eastern District of Pennsylvania. After a recent status conference, all parties agreed to a new December 5 deadline–when the DOJ is expected to clarify, for the first time, the administration’s position on SCS.
“Unfortunately the position of the former administration fighting those efforts has chilled opportunities to save lives and address the tragedy we’re seeing with overdoses reaching new record highs in recent years,” Krinsky said. Biden, she said, could end this fight with the stroke of a pen, by dropping the lawsuit against Safehouse. Like California Governor Gavin Newsom, it appears Biden’s reluctance comes from a fear of being attacked as “soft on crime and drugs” by his political opponents.
“It would be really tragic to see Congress move in the opposite direction.”
With the House of Representatives soon coming under Republican control, hopes of congressional action to authorize SCS have slimmed. With Trump, as a 2024 presidential candidate, advocating the death penalty for people who sell drugs, Republicans could well block any efforts to authorize SCS. But when many of their constituents in states like West Virginia, Tennessee, Louisiana, Kentucky and Ohio are among the worst-hit nationwide by overdose deaths, could enough Republicans be persuaded to overturn a razor-thin GOP majority?
“I would hope this wouldn’t be viewed as a partisan issue,” Krinsky said. “It seems to me that saving lives is something that should cross party lines and be embraced by all … It would be really tragic to see Congress move in the opposite direction.”
Photograph of a Canadian SCS by Matthew Bonn.