There’s a Real Prospect for a Safe Consumption Site in Somerville, MA

    The national fight for safe consumption sites (SCS) seems effectively headquartered in Philadelphia, thanks to a combination of the legal battle over Safehouse—which just earned a major victory—and fatal overdoses remaining at “crisis levels.” Indeed, 70 out of every 100,000 Philadelphians die from preventable overdose every single year.

    But SCS are not just the posited solution of progressive luminaries in one extremely hard-hit city, or fodder for presidential campaign platforms. They’re gaining widespread traction.

    Take Somerville, Massachusetts. This city of 80,000 (69 percent white) just outside of Boston—the home of Tufts University and a three-time winner of the All-America City award—is perhaps an unlikely-seeming place for this idea to gain traction. NIMBYism, the “Not In My Backyard” attitude, is one of its biggest obstacles, and it is associated with people who are wealthier and whiter than the general population. Somerville’s fatal overdose rate, even when accounting for population differences, is way lower than Philly’s.

    Nonetheless, Somerville Mayor Joseph Curtatone has already pledged to open an SCS, also known as an overdose prevention sites, in 2020, recognizing the critical role such an intervention could play in mitigating the ongoing overdose crisis.

    “I just attended another funeral for someone who was a victim to that epidemic,” Curtatone told WBUR in August. “Under the status quo, people will continue to die. We need to be bold to take on an epidemic.”

    In Somerville, just like in Philadelphia, Trump’s Department of Justice threatens to crack down on any such move. Massachusetts US Attorney Andrew Lelling has said in no uncertain terms that he will follow the lead of his Philadelphia counterpart, Bill McSwain, in suing to block an SCS in Somerville, if Curtatone follows through.

    The next top federal prosecutor of Massachusetts could well let Somerville follow its own will in creating an SCS, regardless of the ultimate outcome of the Safehouse litigation.

    But Trump won’t be president forever, and it is highly likely that the next Democrat to become President will fire all incumbent US Attorneys. This is common practice. After all, as Duke Law Professor Sara Sun Beale has noted, “The position of US Attorney is, in a formal sense, plainly political.” They are chosen by partisan presidents, with the illusory idea that they will “leave behind partisan politics” in favor of “the norm of prosecutorial neutrality,” once they take office.

    As such, the next top federal prosecutor of Massachusetts could well let Somerville follow its own will in creating an SCS, regardless of the ultimate outcome of the Safehouse litigation.

    Unfortunately, there is no currently acknowledged and explicitly defined constitutional right to the safer use of drugs. So Massachusetts lawmakers could equally stick their heads in the sand and refuse to recognize that some level of drug use is inevitable, and that we should therefore prioritize making drug use safer.

    That is exactly what Philly-area state lawmaker Anthony Williams, a vocal opponent of the sites, has done. Following the favorable federal court ruling on Safehouse, he has pledged to draft a bill to ban SCS. His preferred option is to coerce people into treatment they may not be willing or ready to engage with; ensuring that current drug users can live another day is not a priority.

    “In the midst of an epidemic, we should not be providing spaces for users to continue to use without requiring treatment,” Williams told the Philadelphia Tribune last week.

    But there is also every chance that Massachusetts lawmakers may not follow suit. Even if a bill is introduced to prevent the sites, it is less likely to pass than one in Pennsylvania, based on partisan politics alone. In addition, more high-profile authorities support them in Massachusetts, either implicitly or explicitly, in Massachusetts—including Obama drug czar Michael Botticelli, and district attorneys Andrea Harrington (Berkshire County), Rachael Rollins (Boston) and David Sullivan (Northwestern District).

    In Somerville, all eyes could soon fall on Massachusetts Attorney General Maura Healey and Middlesex County District Attorney Marian Ryan. Hypothetically, if DA Ryan, whose jurisdiction covers Somerville, were to decide to be cruel and overzealous, she could persecute people who use drugs and are trying to stay safe by using at an SCS. Healey could end up fighting for the legitimacy of such convictions in appellate courts.

    And there’s where it gets complicated.

    Unlike Boston DA Rachael Rollins, Marian Ryan does not decline charges for simple drug possession as a default policy. Despite successfully branding herself as a “progressive,” she just obtained a year-long prison stint for a local defense attorney who brought a client suboxone in jail. Previously, Ryan also fought to keep drug convictions in place that arose from disgraced drug lab chemist Annie Dookhan’s grievous professional misconduct.

    Ryan has expressed some openness toward looking at the research on SCS. But with her anti-harm reduction track record, it would not be surprising if she ends up trying to thwart it.


    Photo of Davis Square in Somerville by Brian Corr via Wikimedia Commons

    • Rory Fleming

      Rory is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. Rory is a licensed Minnesota attorney.

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