HRC Beletsky 1-9-2019
HRC Beletsky 1-9-2019
HRC Beletsky 1-9-2019
Facilities:
Legal and Policy Considerations
FEDERAL
State
Local
1. Creation of safe harbor provisions/carveouts from
state criminal law, in line with Good Samaritan law
2. Creation of indemnification for professionals,
property operators, and volunteers, possibly by
expanding naloxone or Good Samaritan provisions
3. Creation of technical elements, standards,
licensing requirements, funding, etc.
Building on/expanding existing laws to
advance public health and save lives
Less dramatic than actions already taken,
e.g. legalizing cannabis
Solid scientific evidence (contrast with
syringe exchange and cannabis)
Feasibility: Not pre-empted on federal
level: law would be on sound legal footing
Criminal
Controlled Substances Act
• Individual possession, conspiracy, and intent
provisions
• “Crackhouse” statute (§856) applies to operators
Civil
Property forfeiture
Professional
Loss of DEA license
Criminal
Controlled Substances Act
• Individual possession, distribution, conspiracy and
intent provisions
• “Crackhouse” statute (§856) applies to operators
Civil
Property forfeiture
Professional
Loss of DEA license
Legal arguments include
Crack House Statute was never intended to apply to a
bona fide public health/medical facility
Regulation of public health is a core state power which is
granted great deference
Locally authorized SCF is not pre-empted by the Crack
House Statute (no “positive conflict”)
“Purpose” requirement is not met
Necessity defence bolstered by public health emergency
May depends on who is running the facility
Never been tested
1. Historically, possession, distribution charges rarely
pursued by federal law enforcement
2. State and local law enforcement do not enforce
federal law
3. Litigation (injunctive relief) could allow innovation to
proceed
This is exactly how Insite was allowed to remain open
1. Research mechanisms:
▪ exemptions
▪ funding
2. Funding rider (e.g. Rohrabacher–Farr)
3. Court injunction pending litigation
4. Longer term: Controlled Substances Act
reform
1. Threatening statements made by federal law
enforcement w/r/t SCFs
Almost identical to threatening statements made by
federal law enforcement w/r/t cannabis
2. Regulatory process for establishing regulations,
licensing, etc. takes substantial time, whereas
politics of enforcement discretion can shift quickly
Cannabis and syringe exchange: 1-2 years
3. Formal federal drug law reform for “hard drugs” is
unlikely in the near future, but OD crisis continues
What is Harm Reduction?
Harm reduction incorporates a spectrum of strategies from safer use, to managed use, to
abstinence - to meet drug users “where they’re at,” addressing conditions of use along with the use
itself. Because harm reduction demands that interventions and policies designed to serve drug
users reflect specific individual and community needs, there is no universal definition of or formula
for implementing harm reduction.
The defining features (of harm reduction) are the focus on the prevention of harm, rather than on
singular focus on stopping drug use per se, and the focus on people who continue to use drugs.
https://harmreduction.org/about-us/principles-of-harm-reduction/
https://www.hri.global/what-is-harm-reduction
Intervention State of Evidence Existing MA Capacity
Low threshold OAT Strong Moderate (but uneven)
Naloxone distribution Strong Moderate (but uneven)
Syringe exchange Strong Low Moderate
Supervised Consumption Strong None
Injectable OAT Strong None
Harm reduction in CJ settings Strong None
Safe disposal (syringes) Moderate Low
Good Samaritan Policies Moderate Moderate (limited scope)
Drug checking Emerging Low
Cannabis replacement Emerging None
CJ Deflection Emerging Low
Change is already happening
States or localities with the will to advance
evidence-based public health have reasonable
claim to legality
State legislation puts SCFs on strongest
footing
Federal level is unpredictable, and politics (if
not policies) can change quickly
Imperative: to prevent harm with best evidence
This presentation is based, in part, on:
“The Law (and Politics) of Safe Injection Facilities in the United States”
American Journal of Public Health (2008) 98(2): 231-7
“Federalism, Policy Learning and Local Innovation in Public Health: The
Case of the Supervised Injection Facility” St. Louis Law Journal (2009)
Thanks to MMS, Corey Davis, Evan Anderson, Scott Burris
L.beletsky@neu.edu
@leobeletsky
www.HealthInJustice.org