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Justice Department Asks Federal Court For More Time In ‘Complex’ Safe Drug Consumption Site Case

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The Justice Department is asking a federal court for more time to respond in a lawsuit surrounding the legality of safe drug consumption sites where people could use currently illicit substances in a medically supervised environment. And while the would-be operators of the overdose prevention center at the center of the case have agreed to prior delay requests, they said they “did not consent” to this latest one and instead fild a motion in opposition on Tuesday.

The case, which was raised after DOJ under the Trump administration blocked Philadelphia-based non-profit Safehouse from opening a harm reduction facility, has seen repeated delays over the past three years.

Now the department is asking the court for additional time to submit its response, stating in a motion on Monday that it “believes an additional two months are necessary to permit careful consideration of the government’s harm reduction and public safety goals.”

“The discussions to date, which have involved coordination among multiple constituencies addressing a novel and complex subject matter, have been and continue to be productive,” it said, noting that DOJ had a status conference with Safehouse attorneys last month and “provided an update” to the court.

In February, DOJ said that it was “evaluating supervised consumption sites, including discussions with state and local regulators about appropriate guardrails for such sites, as part of an overall approach to harm reduction and public safety.”

While Safehouse has agreed to past deadline extension for DOJ filings, touting “productive” conversations as the Biden administration continues to review its policy on the harm reduction program, it is opposed to this latest delay.

“We believed we were making progress when DOJ announced in February 2021 that it was ‘evaluating’ its policy toward supervised consumption services and talking to state and local regulators about ‘appropriate guardrails’ that could enable Safehouse and similar public health initiatives nationwide to offer such services without fear of federal criminal and civil enforcement,” Safehouse said in an email to supporters on Monday.

“Safehouse did not consent to today’s DOJ request for more time and will be filing a motion in opposition tomorrow morning,” it said. “We are long overdue for a timeline as to when DOJ evaluations will be complete so that a life-saving initiative can begin.”

“Three to four people die of overdose every day in Philadelphia. Last year’s 1,276 fatal overdoses represented a record high in the city, and those we lost were among more than 100,000 people nationwide who died of overdoses.

Safehouse has been in litigation with DOJ since 2019 in our effort to open overdose prevention centers that include supervised consumption. These centers save lives and provide critical pathways to treatment, housing, and social services.”

DOJ now says it is seeking to file its “Amended Counterclaims for Declaratory and Injunctive Relief” by February 6, 2023. It seems to have filed the request for another delay with the U.S. District Court for the Eastern District of Pennsylvania one day after the most recent court-approved deadline of Sunday.

Safehouse, in its motion of opposition filed before the court, said that the case “has been pending for almost four years.”

“Since the DOJ commenced this litigation in 2019 until the end of 2021, more than 3,600 lives have been lost in Philadelphia to the opioid overdose crisis. Based on 2022 projections, that number will grow to almost 5,000 deaths,” the brief says. “Safehouse and those that need its life-saving services have waited long enough.”

“Safehouse cannot in good conscience continue to agree to lengthy extensions without DOJ providing a timeline for its policy decision-making and a path to resolution,” it says.

In October 2021, the U.S. Supreme Court rejected a request to hear a case on the legality of establishing the Safehouse facilities.

In a recent report, congressional researchers highlighted the “uncertainty” of the federal government’s position on safe drug consumption sites, while pointing out that lawmakers could temporarily resolve the issue by advancing an amendment modeled after the one that has allowed medical marijuana laws to be implemented without Justice Department interference.

While the Philadelphia facility is being held up amid litigation, New York City opened the first locally sanctioned harm reduction centers in the U.S. late last year, and officials have already reported positive results in saving lives.

The Congressional Research Service (CRS) pointed out the discrepancy, stating that while “DOJ actively opposed the operation of supervised consumption sites under the Trump Administration, to date the Biden Administration has not sought to invoke the [Controlled Substances Act] against such facilities.”

The report was published days after National Institute on Drug Abuse (NIDA) Director Nora Volkow tacitly endorsed the idea of authorizing safe consumption sites, arguing that evidence has effectively demonstrated that the facilities can prevent overdose deaths.

Volkow declined to specifically say what she would do if she were president and the Trump-era lawsuit was dropped, but she said that safe consumption sites that have been the subject of research “have shown that it has saved a significant [percentage of] patients from overdosing.”

The comments represent one of the strongest positions in favor of safe consumption sites to come from a federal official, and they’re all the more notable given the federal government’s position in the lawsuit that’s so far blocked Safehouse from providing the service.

That said, Rahul Gupta, the White House drug czar, recently said that the Biden administration is reviewing broader drug policy harm reduction proposals, including the authorization of supervised consumption sites—and he went so far as to suggest possible decriminalization.

A study published by the American Medical Association (AMA) in July found that the recently opened New York City facilities have decreased overdose risk, steered people away from using in public and provided other ancillary health services to people who use currently illicit substances.

The National Institutes of Health (NIH) put out a pair of requests for applications (RFAs) in December 2021 for an effort that will provide funding for efforts to investigate how that and other harm reduction policies could help address the drug crisis.

Gupta, the director of the White House Office of National Drug Control Policy (ONDCP), previously said that it’s critical to explore “any and every option” to reduce overdose deaths, and that could include allowing safe consumption sites for illegal substances if the evidence supports their efficacy.

The secretary of the U.S. Department of Health and Human Services (HHS), Xavier Becerra, has also signaled that the Biden administration would not move to block the establishment safe injection sites, stressing that “we are literally trying to give users a lifeline.”

But a department spokesperson later walked those remarks back, stating that “HHS does not have a position on supervised consumption sites” and the “issue is a matter of ongoing litigation.” In any case, it would be up to DOJ to decide whether to pursue operators of the facilities under the Controlled Substances Act.

In 2021, Rhode Island’s governor signed a bill establishing a pilot program to allow safe consumption sites to operate in the state.

A New York Assembly committee advanced a bill in May to establish a statewide safe consumption site program, allowing regulators to authorize facilities where people could use currently illicit drugs in a medically supervised environment.

In a pair of setbacks for advocates, however, Vermont’s governor vetoed a bill in June that would have simply created a working group tasked with crafting a plan to open safe consumption sites and the governor of California vetoed a bill in August to permit a pilot program for the harm reduction centers.

Read DOJ’s latest filings in the safe consumption site case below: 

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Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

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