Four Democratic Pennsylvania senators, including the chief sponsor of a bill to legalize marijuana, are asking a federal court to reject any agreement in a lawsuit that would authorize a safe drug consumption site to operate in their state—citing the same federal law that currently prohibits cannabis.
Sens. Sharif Street (D), Christine Tartaglione (D), Anthony Williams (D) and Jimmy Dillon (D) submitted an amicus brief to the U.S. District Court for the Eastern District of Pennsylvania on Wednesday, making a series of arguments against allowing the harm reduction centers, where people could use currently illicit drugs in a medically supervised setting to prevent overdose deaths.
The filing came one day after 20 community groups asked the court to grant a motion to intervene in the case, which they said was necessary based on their understanding that the federal government was planning to cede the case that originated during the Trump administration.
The Justice Department hasn’t formally said that it intends to abandon the lawsuit, which has blocked the non-profit Safehouse from opening a safe consumption site in Philadelphia. But opponents seem to be under the assumption that the government is planning to withdraw its opposition amid ongoing settlement talks.
The senators said in the new filing that they “anticipated that the parties in this matter would engage with local elected officials and state lawmakers in order to move forward with any approved drug consumption sites,” which they said might “avoid further litigation related to state law violations and mitigating constituent harm and anxiety over any proposed site.”
One of the more striking arguments from the senators is that they believe it would be improper for the court to side with Safehouse and authorize a safe consumption site because it would violate the federal Controlled Substances Act (CSA).
“Operating a drug consumption site with the significant purpose of offering a place at which visitors may inject themselves with controlled substances violates the plain language of the CSA,” they said.
The reason that argument stands out is because at least three of the senators have advocated for marijuana legalization in Pennsylvania, including Street, who has been the prime sponsor of reform legislation that would similarly conflict with the CSA given that cannabis remains federally illegal.
Tartaglione and Williams also signed onto a letter to former Gov. Tom Wolf (D) and legislative leaders in 2020 that called for action to legalize cannabis, in part to potentially mitigate the opioid overdose epidemic.
Marijuana Moment reached out to Street’s office for comment, but a representative did not respond by the time of publication.
Kellen Russoniello, senior staff attorney for the Drug Policy Alliance (DPA), which backs safe consumption sites and other harm reduction measures, told Marijuana Moment that “there’s sort of a double-standard here” with respect to the senators’ willingness to set aside federal concerns when it comes to cannabis but not overdose prevention measures.
“We’re disappointed that they would take this stance,” he said. “Overdose Prevention Centers will save lives.”
The senators further contended in their brief that establishing a safe consumption site would violate existing state statute, and they said that any attempt to allow such facilities to operate should be handled legislatively, rather than through the court.
The filing notes that Tartaglione, the Senate Democratic Whip, has filed legislation that would “explicitly prohibit the operation of sites that provide drug paraphernalia and space for any person to inject, ingest, inhale or otherwise introduce controlled substances into the person’s body.”
“Any attempt to circumvent the legislative process undermines the exclusive legislative authority vested in the legislative branch,” the brief says. “Specifically, if the settlement discussions in this matter result in an agreement for Safehouse to operate one or more illegal drug consumption sites outside of the law, this effectively carves out a statutory exception or amendment to the law without legislative enactment.”
“Based on the foregoing reasons, we urge the Court to reject any settlement resulting in the operation of a drug consumption site in the City of Philadelphia,” it concludes.
The case has been repeatedly delayed as DOJ evaluated its position on the harm reduction centers, with the federal district court agreeing to a series of deadline extension requests from the government. While the non-profit Safehouse agreed to several extensions, it opposed one of the government’s most recent requests for more time, and the court ordered DOJ to reveal its position by January.
But before that happened, however, both Safehouse and the department instead agreed to transfer the case to mediation before a magistrate judge to settle the issue.
The status of the mediation remains unclear, but the senators and various community groups evidently feel that DOJ is prepared to give up the case and potentially authorize the safe consumption site—a decision that would align with the White House’s overall embrace of harm reduction policies to reduce overdose deaths and promote treatment.
Safehouse has previously described its discussions with the Justice Department as productive, though the organization has grown frustrated by the repeated delays in the legal proceedings at the government’s request.
Last year, 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.”
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. in late 2021, 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, has 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.
This session, lawmakers in Colorado, New Mexico and New York have approved bills to authorize safe consumption sites where people can use currently illicit drugs in a medically supervised setting and receive substance misuse treatment resources.
Rhode Island became the first state in the U.S. to legalize a safe drug consumption site pilot program in 2021.
In a pair of setbacks for advocates, Vermont’s governor vetoed a bill last year 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 last year to permit a pilot program for the harm reduction centers.
“It has been very disappointing to have those who we thought would be allies—and then, ultimately, when it came down to it, weren’t there and weren’t supportive,” DPA’s Russoniello said. “It was very disheartening, and it does speak to the larger challenge of making sure that there is community support, addressing any community concerns, and really the power of the fear that the opponents are able to generate.”
Read the senators’ filing in the safe consumption site case below:
Image courtesy of Dima Solomin.