From "Crack Houses" to "Safehouses": DEA's Untapped Power to Save Lives
From "Crack Houses" to "Safehouses": DEA's Untapped Power to Save Lives
The Biden-Harris Administration's DEA has authority to establish safe injection sites--without Congress lifting a finger.
More than 130 people die from a drug overdose in the U.S. every day. There is no time to waste in addressing this crisis.
The Biden-Harris Administration’s First-Year Drug Policy Priorities take the historic step of bringing harm reduction strategies to the fight against the U.S. overdose epidemic. Evidence shows that one such measure stops overdoses in their tracks and saves lives: Safe injection sites.
Yet despite widespread support from senior officials in key positions across the Biden-Harris Administration, few safe injection sites exist in the U.S. And when Safehouse, a nonprofit, sought to establish such a facility in Philadelphia, the Trump Administration sued to block the effort, calling Safehouse’s attempt to save lives “in-your-face illegal activity.” And it won: a divided panel of the Third Circuit agreed with the Trump Justice Department that the facility as proposed would violate a provision of the Controlled Substances Act that Congress passed to target “crack houses.”
In the wake of that decision, some say that the Biden-Harris Administration faces a stark choice:
back safe injection sites in the name of saving lives, even if it means condoning illegal drug use, or
surrender to the Trump Administration’s view that the Controlled Substances Act criminalizes commonsense harm-reduction measures—even those that we know could save American lives.
This is a false ultimatum. A little-known and rarely used provision of the Controlled Substances Act, 21 U.S.C. § 872, allows DEA to promote—and even establish—safe injection sites in the U.S. immediately and without congressional involvement. In this essay, I explain how it works and urge the Biden-Harris Administration to work with DEA to bring safe injection sites online in the U.S. as soon as possible.
The Overdose Epidemic
During the 12-month period ending in May 2021, overdoses claimed 100,255 American lives. For perspective, that means more people are dying of overdose in the U.S. each year than of breast cancer and colon cancer combined. It also means the overdose epidemic today is deadlier than the AIDS epidemic was at its peak.
The primary menace behind this tragedy is the fentanyl family of synthetic opioids. Fentanyl and its chemical cousins are extremely potent—100 times stronger than morphine and 50 times stronger than heroin. Swap fentanyl for the “Sweet ’N Low” in one of those little pink packets, and you’ll have enough synthetic opioid (1 gram) to kill 500 people.
And they’ll be gone fast. An article in Live Science describes a CDC study that included interviews with people who had witnessed multiple overdoses. When witnesses were asked what made fentanyl so much deadlier than other drugs like heroin, they consistently pointed to how much more quickly fentanyl kills:
[W]ith fentanyl … the effect is immediate: I would say you notice it [a fentanyl overdose] as soon as they are done [injecting the fentanyl]. They don’t even have time to pull the needle out [of their body] and they’re on the ground.
As powerful as fentanyl is, the overdose-reversal drug Naloxone reliably stops overdoses in their tracks. But without someone else present to administer the lifesaving drug at the moment of consumption, a person overdosing on fentanyl will likely die with their Naloxone kit right next to them, unopened.
Enter Safe Injection Sites
To address this problem, organizations have begun providing facilities with on-site medical staff trained to observe drug use and administer Naloxone in the case of overdoses. They go by many names: overdose prevention centers, supervised injection facilities, safe consumption rooms, safe injection rooms, and more. I’ll refer to them as “safe injection sites.”
Safe injection sites save lives. Within five years of opening, one safe injection site in Vancouver reversed 300 otherwise deadly overdoses. And according to an August 2020 report in the New England Journal of Medicine, scientists who studied an unsanctioned facility in “an undisclosed U.S. city” saw similar results: “In total, there were 10,514 injections and 33 opioid-involved overdoses over 5 years, all of which were reversed by naloxone administered by trained staff.” The report concludes that safe injection sites could play a key role in combatting the overdose epidemic:
[O]ur results suggest that implementing sanctioned safe consumption sites in the United States could reduce mortality from opioid-involved overdose. Sanctioning sites could allow persons to link to other medical and social services, including treatment for substance use, and facilitate rigorous evaluation of their implementation and effect on reducing problems such as public injection of drugs and improperly discarded syringes.
A 2014 peer-reviewed study confirmed that safe injection sites
save lives by preventing overdoses;
enhance access to primary healthcare; and
reduce the number of drug users injecting in public where they can be seen by children and their discarded syringes can spread blood-borne diseases like HIV and Hepatitis B and C.
The same study emphasized that safe injection sites have not been found to increase drug use, drug trafficking, or drug-related crime. Not surprisingly, research suggests safe injection sites edge out needle exchange programs in effectiveness.
This growing body of evidence has led senior officials in the Biden Administration to endorse safe injection sites:
HHS Secretary Becerra told NPR that HHS would not attempt to interfere in state efforts to establish safe injection sites: “We are literally trying to give users a lifeline …. We’re not going to say ‘but you can’t do these other type of supervised consumption programs that you think work or that evidence shows work.’”
Secretary Becerra was also among eight top state law enforcement officials who filed an amicus brief in support of safe injection sites when he served as California’s attorney general.
During a December 2nd congressional hearing on the Biden Administration’s interagency proposal to combat illicit fentanyl-related substances, Kemp L. Chester, Assistant Director of the Office of National Drug Control Policy, confirmed that “safe injection sites …. [are] saving people’s lives and preventing them from overdosing.” Transcript at 89.
Dr. Nora Volkow, Executive Director of the National Institute of Drug Abuse, agreed, directing lawmakers to “research in other countries” that demonstrates that safe injection sites “mitigate[] some of the adverse effects of drug use, including HIV, hepatitis C, and overdoses.” Id.
The Biden Administration’s ambitious First-Year Drug Policy Priorities, which include things like “[e]xpanding access to evidence-based treatment,” “[e]nhancing evidence-based harm reduction efforts,” and “promoting research on emerging harm reduction practices,” make safe injection sites a no-brainer. The question thus becomes: why hasn’t the Administration taken concrete steps to promote safe injection sites?
The answer appears to be Safehouse v. DOJ, a federal lawsuit the Trump Justice Department filed in 2018 to block a nonprofit from opening a safe injection site in Philadelphia.
The Ghost of the Trump Administration
According to the Trump Administration, Safehouse’s proposed facility would violate a provision of the Controlled Substances Act known as the “Crack House Statute.” See 21 U.S.C. § 856(a)(2). Long ago, Congress enacted this statute to target so-called “crack houses” and promoters of ecstasy-fueled raves. The statute makes it a 20-year felony to “manage or control any place, . . . and knowingly and intentionally . . . make available for use, with or without compensation, the place for the purpose of unlawfully . . . using a controlled substance.” Id.
When the case made its way to federal appellate court, a divided panel of the Third Circuit reversed. According to the majority, (a)(2) imposes criminal liability on property owners based on the unlawful purpose of third-party visitors. The U.S. Supreme Court denied Safehouse's petition for certiorari on October 12, 2021, and remanded the case for lower courts to consider in the first instance whether the government’s effort to enforce (a)(2) to block Safehouse’s planned safe injection site violates Safehouse’s rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
The Biden Justice Department has yet to weigh in on the merits of the litigation (DOJ waived its right to respond to Safehouse petition for certiorari), but its response to Safehouse’s remaining claims is due in March. As a result, commentators have fixated on DOJ’s imminent response. Some even claim that the Safehouse litigation presents the Biden Administration with a stark choice between
backing safe injection sites in the name of saving lives, even if it means condoning illegal drug use, or
surrendering to the Trump Administration’s view that the Controlled Substances Act criminalizes commonsense harm-reduction measures—even those that we know could save American lives.
These dramatic characterizations may reflect the apparent terms of the debate between the majority and dissenting opinions in Safehouse itself. Judge Bibas’s majority opinion goes to great lengths to frame Safehouse’s arguments as compelling policy reasons for ignoring the plain text of a statute. In the end, he explains, however admirable Safehouse’s motives might be, as an Article III judge, he is duty-bound to follow the “Crack House Statute” where it leads:
Safehouse admirably seeks to save lives. And many Americans think that federal drug laws should move away from law enforcement toward harm reduction. But courts are not arbiters of policy. We must apply the laws as written. If the laws are unwise, Safehouse and its supporters can lobby Congress to carve out an exception. Because we cannot do that, we will reverse and remand.
Judge McKee’s dissent from the Court’s denial of rehearing en banc (see page 58a of this doc) vigorously disputes the majority’s claim that (a)(2)’s “plain text” criminalizes safe Safehouse’s proposed facility. Yet, he appears to agree that, in light of the majority opinion, only Congress can sanction safe injection sites like the one Safehouse proposes. “Until Congress acts,” he laments, “Safehouse and others who attempt the kind of therapeutic response that is at issue here will continue to risk substantial prison sentences.”
In fact, as I next explain, the Biden Administration can promote—and even establish—safe injection sites in the U.S. immediately without running afoul of the Third Circuit’s ruling and without Congress lifting a finger.
Turning Crack Houses into Safehouses Under the Controlled Substances Act
The Third Circuit held only that Safehouse’s proposed facility would violate (a)(2). It didn’t consider—much less resolve—the more fundamental question facing the Biden Administration: Does the broader statutory scheme foreclose safe injections sites categorically? You can’t answer that question based on (a)(2) alone because like the Act’s other prohibitions, (a)(2) is subject to several exceptions. Indeed, the first words of the statute are “[e]xcept as authorized by this subchapter, it shall be unlawful to ….” 21 U.S.C. § 856(a) (emphasis added). As I’ll explain below, another provision of the statute, § 872, permits DEA to make just such an exception for safe injection facilities.
Before we delve into the specifics, though, let’s take a closer look at what the government must prove, according to the Safehouse majority, to demonstrate an (a)(2) violation.
Proving a Violation of the Crack House Statute
Section (a)(2) provides that
Except as authorized by this subchapter, it shall be unlawful to-
….
(2) manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.
Judge Bibas explained that the dispute in Safehouse focused on (a)(2)’s “requirement of ‘purpose,’” but he described (a)(2)’s other elements, which were undisputed, as follows:
To violate (a)(2), a defendant must “knowingly and intentionally . . . make [his property] available for use” by a third party for that person’s illegal drug use. The first two phrases of (a)(2) focus on the voluntary conduct or knowledge of the defendant. The first two phrases of (a)(2) focus on the voluntary conduct orknowledge of the defendant. The first phrase requires the defendant to “manage or control [a] place.” And the second phrase requires the defendant to “knowingly and intentionally rent, lease, profit from, or make [the place] available for use” for illegal drug activity.
Not Every Safehouse Is a Crack House—Even Under the Third Circuit’s Ruling
Three of the requirements that Judge Bibas emphasized were undisputed in Safehouse bear emphasis here:
It is the defendant who must “manage or control the property” “as an owner, lessee, agent, employee, occupant, or mortgagee.”
It is the defendant who must “rent, lease, profit from, or make [the place] available for use.”
The relevant “manufacturing, storing, distributing, or using [of] a controlled substance” on the property must be “unlawful.”
While these elements were undisputed in Safehouse, none would be met if the Attorney General exercised the authority available to him under the Controlled Substances Act to bless Safehouse’s proposed facility.
Imagine, for example, if the Attorney General had authority to permit a public health agency like NIH or FDA to “manage[] or control[] the property” that Safehouse used to provide supervised consumption services. In that case, because the federal government—and not Safehouse—would be the one “manag[ing] or controll[ing]” the property in question, Safehouse could not be held liable under (a)(2). Nor would Safehouse be “rent[ing], leas[ing], profit[ing] from, or mak[ing] [the place] available for use” in that scenario. Likewise, if the Attorney General had authority under the Act to permit otherwise “unlawful” drug use on such a property, Safehouse’s proposal wouldn’t pose a problem. After all, it’s not a crime to let somebody obey the law on your property.
The question thus becomes whether the Attorney General has any such authority. If he does, he can turn what the Third Circuit held was a “crack house” into a lifesaving “Safehouse.” As I’ll explain next, under § 872, the Attorney General has more than enough authority to do all three.
Section 872: Unleashing Harm Reduction Under the Controlled Substances Act
Entitled “[e]ducation and research programs of the Attorney General,” § 872 broadly authorizes the Attorney General “to carry out … research programs directly related to enforcement of the laws under his jurisdiction concerning drugs or other substances which are or may be subject to control under this subchapter.” Section 872(a) provides that these programs may include “studies or special projects” designed to:
“compare the deterrent effects of various enforcement strategies on drug use and abuse”
“assess and detect accurately the presence in the human body of drugs or other substances which are or may be subject to control under this subchapter, including the development of rapid field identification methods which would enable agents to detect microquantities of such drugs or other substances”
“develop more effective methods to prevent diversion of controlled substances into illegal channels”
“evaluate the nature and sources of the supply of illegal drugs throughout the country” and/or
“develop information necessary to carry out his [scheudling duties under the CSA].”
Section 872(e) then expressly permits the Attorney General to “authorize the possession, distribution, and dispensing of controlled substances by persons engaged in research” and to “exempt [them] from State or Federal prosecution for possession, distribution, and dispensing of controlled substances….”
These provisions empower the Attorney General to bless safe injection sites as part of a “research program of the Attorney General.” Indeed, just last week, Marijuana Moment reported that
NIH wants to establish a Harm Reduction Network that seeks to “increase our understanding of the effectiveness, implementation and impact of existing and new harm reduction practices to address the ongoing opioid crisis and substance use disorder more broadly.”
To that end, NIH has called for research proposals designed to improve the federal government’s understanding of “emerging” harm reduction policies, including “the authorization of safe consumption sites.”
Where the Biden Administration—and Safehouse—Should Go From Here
Section 872(e) expressly contemplates the Attorney General launching a controlled substance research program “on his own motion or at the request of the Secretary [of HHS].” The Attorney General has delegated his authority under the Controlled Substances Act, including his § 872 authority, to DEA. The Biden Administration should therefore direct DEA to take action under 21 U.S.C. § 872 immediately, whether on its own motion or at the request of HHS.
Safehouse (and other organizations interested in establishing safe injection sites in the U.S.) should request that DEA greenlight its proposed facility as “research program[] of the Attorney General” under § 872(e). It should also respond to NIH’s recent RFA by proposing its planned facility as a research opportunity for the federal government. In its proposal, Safehouse should remind NIH (which is part of HHS) of HHS’s authority under § 872(e) to request that DEA authorize Safehouse’s facility as a “research program[] of the Attorney General.”
DEA should not hesitate to grant such a request, but it also shouldn’t wait for the proposals to arrive to take action. NIH is ready to fund studies of safe injection facilities, and the Director of NIDA called for similar research during her testimony at the December 2nd congressional hearing (Transcript at 89). With such high demand for research from the Nation’s expert public health agencies, a growing body of evidence demonstrating safe injection facilities’ lifesaving potential, and express authority from Congress to act, the question isn’t whether DEA should act but how and how soon.
Epilogue (Matt)
If I had to pick one post to date that I’d want readers to share, it wouldn’t my piece about magic mushrooms. I would ask you to share this one.
Let me explain briefly why Shane’s post is one of the most important pieces we’ve published to date.
First, this message can save lives—soon. We’ve written several theory pieces on different subjects—and we’ll continue to do that, as the point of this newsletter is to publish pieces based on psychedelics and drug law and policy. We’ve promised to go deep and wide on the issues.
Beyond legal theory, this post is practical: Shane proposes how to constructively and concretely use the existing law to address a current policy crisis. Rather than simply rehash some history, recommend that Congress adopt new legislation, and write-off the Controlled Substances Act as broken tool forged by drug-war zealots (a simplistic view) that requires reform, Shane’s piece takes a different tact. It offers a creative but straightforward plan to leverage one of the CSA’s core features—flexibility through DEA discretion—to overcome a legal obstacle to implementing safe injection sites.
Second, one of my growing fears about the emerging psychedelics space is myopia. Psychedelics are cool and trendy. No doubt, capital freely flows into the sector from (1) folks with money who either have had transformative psychedelic experiences themselves or seen transformative changes in loved ones who have had such experiences and/or (2) those who expect some kind of profit. But just down the road in the broader neighborhood of drugs and the War on Drugs™ is an equally if not more pressing tragedy that claims hundreds of lives daily: the opioid epidemic. Unfortunately, the opioid crisis and other issues relating to the War on Drugs™ often do not make their way into psychedelic conversation.
Some say psychedelic medicine can help treat opioid addiction. Fair enough. But I’d submit that the opioid epidemic relates to psychedelics in two other ways. Many of the legal and regulatory issues relating to the opioid epidemic are intertwined with the issues faced by psychedelic medicine. Also, many who suffer the deepest traumas, pain, depressions, and anxiety turn to opioids. Psychedelic medicine may ultimately provide a way out in 2030, but in the interim, we need lifelines. No dose of psilocybin, MDMA, 5-MeO, or whatever can heal the trauma of a lifeless being. One easy way to promote the values the community espouses is to focus some attention and capital on the real drug problems faced by those outside psychedelic circles.
Third, and relatedly, one of the easiest and most meaningful ways to embrace principles of diversity and equity in the psychedelics and drug policy space is to devote energy and attention to the drug problems faced by communities lacking capital and influence. Research suggests that disparities in opioid deaths continue to worsen for black people at disproportionate rates. The opioid epidemic is also particularly rampant in indigenous communities.
Every day I see folks in the psychedelic space, from vaunted leaders on down, sharing and re-sharing various stories on the newest psychedelic research or whatnot. But only sporadically do I see anything about the opioid epidemic. Again, I would encourage you to share this piece and help support the work.