Justice Department reevaluating supervised injection sites after its yearslong effort to block one in Philly

After a yearslong legal battle to block the opening of what would have been the nation’s first supervised drug injection site in Philadelphia, the Justice Department signaled this week that it could be considering a change in its position.

In a statement, officials said they were “evaluating” such facilities — aimed at stemming an alarming rise in overdose deaths by providing a place where addicted people can use drugs under medical supervision — and discussing “appropriate guardrails” with stakeholders.

While the posture is not a full endorsement of the idea, it marks a significant shift from the department’s stance under the Trump administration, which fought vigorously in court to block the first site of its kind from opening in Philadelphia.

Last year, the U.S. Court of Appeals for the Third Circuit sided with the Justice Department, ruling that the proposed facilities would be illegal under a federal law colloquially known as the “crack house statute,” despite the altruistic intentions of those behind such sites.

» READ MORE: Supreme Court declines to hear Philly’s supervised injection site case

Advocates had hoped the Biden administration might adopt a more forgiving position, but Attorney General Merrick Garland has remained silent on the issue for more than a year and the department has continued to fight in court against Safehouse, the local nonprofit that first proposed opening Philadelphia’s supervised injection site in 2018.

The first subtle signs that the Justice Department might be open to relaxing its opposition came late last year, as two supervised injection sites opened in New York City, drawing none of the threats of prosecution and legal action from the U.S. Attorney’s Office there that Safehouse’s plan had provoked in Philadelphia three years earlier.

Asked about those differing responses, department officials told the Associated Press this week it could not comment on the ongoing litigation in Philadelphia.

But, it added, it 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.”

Ronda Goldfein, Safehouse’s vice president, called the statement heartening.

“All along, we and others have been anxiously awaiting a public statement on where they stand,” she said in an interview Wednesday. “We are grateful that the Biden administration, while attempting to resolve these issues, recognizes that people wanted to know their position.”

Still, even if the Justice Department were to use its discretion not to enforce the law barring supervised injection sites, such facilities could still face significant hurdles.

Any subsequent presidential administration could reverse that policy. And the 2021 Third Circuit ruling labeling supervised injection sites illegal could still provide ammunition to community opponents should they pursue a court challenge.

“A local group can attempt to argue it’s some kind of nuisance, and when they do that, the fact that this is illegal, according to the Third Circuit, is going to be a powerful argument,” said Scott Burris, a Temple law professor and director of the school’s Center for Public Health and a supervised injection site supporter.

He called the Justice Department’s potential movement on the issue an “important step” but not sufficient.

Goldfein and Safehouse’s supporters — who include Mayor Jim Kenney, District Attorney Larry Krasner, and former Gov. Ed Rendell — say its proposed facility is a medical necessity in a city where, on average, three people die from drug overdoses a day, a rate that has only increased during the pandemic.

They have pointed to academic studies that show supervised injection sites in Canada and Europe have been effective in saving lives without driving many of the potential social side effects that concern detractors.

In the more than two months since they launched, the New York City sites have intervened in more than 125 overdoses among more than 640 drug users, many of whom have visited multiple times, according to the organization that operates them, OnPoint NYC.

Still, critics fear that such a facility would lead to increased drug use and concentrate dealing around it. They include the city’s police union, some neighborhood groups, and former U.S. Attorney Bill McSwain, who sued Safehouse in 2019 to block its opening and argued the case against the nonprofit himself in court.

He argued that the 1980s “crack house” statute — which makes it a crime for anyone to operate a facility for the purpose of using illegal drugs — would clearly bar a site like the one Safehouse was proposing and threatened to prosecute its backers if they moved forward.

Safehouse disputed that interpretation, arguing that Congress couldn’t possibly have meant to criminalize a potentially lifesaving medical facility in its efforts to penalize unscrupulous property owners during the height of the crack-cocaine epidemic.

Then-Sen. Joe Biden was one of the cosponsors of the 1986 bill, but he has since said he regrets some of the tough-on-drugs legislation he championed during the period.

He pledged to decriminalize marijuana during his 2020 presidential campaign and his Health and Human Services secretary, Xavier Becerra, is a supervised injection site supporter. As California attorney general, Becerra signed onto a legal brief supporting Safehouse before the appellate court.

In its ruling last year, the three-judge panel that heard the case for the Third Circuit stressed it was making no judgment on whether supervised injection sites were good public policy and said that if advocates wanted to open them, they should appeal to Congress to repeal the law rather than simply ignore it.

The Supreme Court declined to hear Safehouse’s appeal on the matter in October.

The nonprofit, meanwhile, has returned to U.S. District Court in Philadelphia to press its case under a different legal argument and in recent months has engaged in what Goldfein described Wednesday as “productive conversations toward resolution” with the Justice Department.

She said an ideal settlement in the suit would allow Safehouse — as well as any other group that wants to open a supervised injection site — to open legally.

The U.S. Attorney’s Office in Philadelphia declined to comment.