The options U.S. Attorney William McSwain described offered the most concrete outline yet of the federal government’s potential response should the proposal’s backers move forward on a supervised drug-injections site.
PHILADELPHIA — Calling the idea “fundamentally illegal,” the Philadelphia region’s top federal law-enforcement official says his office will take measures — possibly including arrests and prosecutions — to prevent the city from becoming home to the nation’s first safe drug-injection site.
He is reviewing possible options to stop it, such as court orders, blocking the opening of the facility and criminal-forfeiture proceedings against the operation.
“The bottom line is that the sort of facility that is being proposed is illegal under federal law,” U.S. Attorney William McSwain said. “We’re not going to look the other way.”
Supporters contend that their plan is legal, and they intend to proceed. No site has been chosen, but backers have indicated it’s likely to open in Kensington, a neighborhood that has become both the center and public symbol of the city’s opioid epidemic.
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McSwain, in an interview, declined to commit to any specific action. Still, the options he described offered the most concrete outline yet of the federal government’s potential response should the proposal’s backers move forward. They also seemed to signal a looming court battle that could decide the legality of supervised injection sites across the United States.
“Nobody is above the law — and by that I mean nobody,” McSwain said. “I mean the leaders who would be involved in setting up this proposed deadly drug-injection site, the board members … the city officials who would be involved in supporting it, the medical personnel who might be staffing it or the folks who might be using the drugs.”
A few of cities, including New York and Seattle, have also inched closer to establishing injection sites in the past year.
And while the Justice Department has opposed the idea, it has been reluctant to spell out a nationwide policy on how it might respond. Still, the comments by McSwain, who was appointed by President Donald Trump and started his job in April, and similar remarks by Deputy Attorney General Rod Rosenstein in August, indicate that the office is preparing for a courtroom showdown.
Despite threats of court action, Jose Benitez — president of Safehouse, the Philadelphia injection-site nonprofit — said he and his colleagues remain undeterred, especially in a city where 1,217 people died of overdoses last year.
“We are morally obligated to continue what we’re doing,” said Benitez, who also runs the city’s only needle-exchange program, Prevention Point. “There are people out there dying, and we have to address that issue.”
He and other proponents of the drug-injection sites say the controversial idea would provide people with addiction a space where medical staff could monitor their drug use, prevent potential overdoses and offer drug-treatment services.
City officials have said they would not stand in the way of such a facility in Philadelphia, though they would offer no funding. Pennsylvania Attorney General Josh Shapiro has come out against the idea, though he has not spelled out any steps he could or might take in response.
In that unsettled legal landscape,
members of the Safehouse board — former Mayor Ed Rendell, Benitez and Ronda Goldfein — this month took the first steps toward establishing an injection site. They incorporated the Safehouse nonprofit and began a fundraising effort to get the $1.8 million they say they will need to operate the facility in its first year.
Under the proposal, the site would ban drug dealing, drug sharing, exchanging money and the sharing of needles or other drug paraphernalia. Participants would not be able to help one another use drugs, and staffers would not handle drugs taken to the site.
Goldfein, who is also executive director of the AIDS Law Project of Pennsylvania, said she and her colleagues have been consulting with lawyers should their proposals land them in court.
“We’re respectful of the authority of (McSwain’s) office,” she said. “But we are committed to taking these steps because we feel compelled to.”
But even in their word choices, the U.S. attorney and Safehouse’s backers remain miles apart.
Both reject the widely used term “safe injection site.” The nonprofit’s backers refer to their proposal as an “overdose-prevention site,” while McSwain used the term deadly drug-injection site.
And even with the precautions Safehouse has laid out, McSwain views their plan as unworkable.
“It doesn’t really matter that the city’s not involved in funding it,” he said. “It doesn’t really matter that the city isn’t literally grabbing the needles and injecting the addicts with the drugs themselves. They’re setting up a drug house, and that’s clearly illegal under our view.”
Central to the dispute as he sees it is a 1986 federal law — known colloquially as the “crack-house statute” — which makes it a felony punishable by up to 20 years in prison to knowingly open or maintain any place for the purpose of manufacturing, distributing, or using controlled substances.
Proponents of supervised injection sites argue that the law, passed at the height of the crack-cocaine epidemic, was not intended to interfere with good-faith efforts to improve public health.
“The intent of the crack-house law was to prohibit one type of conduct,” Goldfein said. “We believe that our conduct is different from that” — namely, that Safehouse is working to prevent overdoses, not promote drug use.
McSwain maintains that the law is clear and that if projects like Safehouse are to move forward legally, its backers should first lobby legislators to change it.
“There’s no ‘good intention’ exception to federal law,” he said. “We don’t say to a tax cheat: Well, don’t worry about paying your taxes (because) you think government is too big.”