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Justice Department Evaluating ‘Guardrails’ For Safe Drug Consumption Sites As Court Deadline Approaches

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The Justice Department may be open to authorizing harm reduction centers where people could use currently illicit drugs in a medically supervised environment and receive treatment resources, officials said in response to media questions.

New York City launched the nation’s first sanctioned supervised injection sites in November, and the city has touted the immediate benefits of preventing overdose deaths. But advocates have been eager to see how the federal government responds under the Biden administration.

As a key deadline approaches for a government response in a federal lawsuit over the proposed establishment of safe consumption sites in Philadelphia, DOJ said it is weighing the legality of such facilities and discussing “appropriate guardrails” for the programs—remarks that are being welcomed by advocates who hope to see a shift in the federal position on the services.

“Although we cannot comment on pending litigation, the Department is 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,” the agency said in a statement published by The Associated Press on the same day that there was a status conference before a federal judge on the pending case brought by the Philadelphia nonprofit Safehouse.

The organization has been seeking to provide the harm reduction resource for years, only to face a lawsuit challenging the move by the Justice Department under the Trump administration.

Lawyers representing Safehouse said the new statement from federal officials “signals the prospect of a positive resolution, not just for Philadelphia but for any place in America that seeks to provide overdose prevention services.”

Under a mutual agreement between the Justice Department and Safehouse, the deadline for the administration to submit their position in the pending case on the facility’s legality has been pushed back several times and is now set for March 7.

Sam Rivera, the executive director of OnPoint NYC, which is running the New York City safe consumption sites, told The Associated Press that he’s optimistic that the federal law enforcement agency is “going to land in the right place here and we’ll be able to, together, really expand on this health initiative that’s saving lives every day.”

While the Biden administration has yet to take a specific position on policy proposals to authorize safe consumption facilities, the National Institutes of Health (NIH) put out a pair of requests for applications (RFAs) in December for an effort that will provide funding for efforts to investigate how that and other harm reduction policies could help address the drug crisis.

Meanwhile, a Republican U.S. congresswoman representing New York has urged DOJ under both Trump and Biden to take action to prevent the harm reduction centers.

In November, Rep. Nicole Malliotakis (R) wrote to Attorney General Merrick Garland expressing concerns about New York City’s moves to authorize the facilities.

“Crime and fentanyl use are at record highs because of open borders, botched bail reform, and anti-police policies that keep releasing criminal drug dealers back onto our streets,” she wrote. “Opening taxpayer-funded heroin shooting galleries is not a proper solution. These centers not only encourage drug use but they will further deteriorate our quality of life.”

She sent a similar letter to then-Attorney General Jeff Sessions in 2018.

National Institute on Drug Abuse (NIDA) Director Nora Volkow has repeatedly expressed concerns about the harms caused by the criminalization of drug possession, and she told Marijuana Moment in an interview last year that she is open to continuing to explore “how these support systems as a community can help people, for example, engage in treatment, how they can prevent them from getting infected from HIV and how they can prevent them from overdosing and dying.”

Activists in several cities have attempted to establish harm reduction centers in recent years, citing promising results from programs that have been put into place in other countries like Canada and Australia.

In October, the Supreme Court rejected a request to hear a case on the legality of establishing the Safehouse facilities in Philadelphia, but the case is still before a lower court and advocates are eagerly waiting for a DOJ response to show where the agency decides to come down on the issue under the Biden administration.

The White House drug czar, Rahul Gupta, recently 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 Office of National Drug Control Policy (ONDCP) director previously said that he couldn’t talk about the harm reduction centers due to the ongoing litigation related to Safehouse, but he seemed more open to the possibility in an interview with CNN late last year.

The secretary of the U.S. Department of Health and Human Services (HHS), Xavier Bacerra, also recently 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.

Bacerra was among eight top state law enforcement officials who filed an amicus brief in support of the Safehouse’s safe injection site plan when he served as California’s attorney general.

A coalition of 80 current and former prosecutors and law enforcement officials—including one who is Biden’s pick for U.S. attorney of Massachusetts—previously filed a brief urging the Supreme Court to take up Safehouse’s safe consumption case.

While New York City is the first to open the harm reduction centers, the governor of Rhode Island did sign a historic bill in July to establish a safe consumption site pilot program.

Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.

A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until this year.

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