Supreme Court Blocks Construction of Nation's First Safe Injection Site

Chesa Boudin and other progressive prosecutors support the project

An addict cooks heroin in order to inject it / Getty Images
October 13, 2021

The Supreme Court on Tuesday did not disturb a lower court decision blocking construction of the nation's first supervised injection site for drug users, a blow to progressive prosecutors around the country.

The Third U.S. Circuit Court of Appeals ruled in January that so-called safe injection centers are prohibited under federal law, blocking a Philadelphia nonprofit called Safehouse from building one on the city's south side. Safehouse has strong backing from left-wing district attorneys like Chicago's Kimberly Foxx and San Francisco's Chesa Boudin.

Tuesday's denial is a relief for the Biden administration, which was caught between its progressive judicial allies and the uncertain politics of government-sanctioned drug use. Though the Trump Justice Department fought Safehouse's proposal in the lower courts, the Biden administration has not taken a position in the dispute. The government did not respond to Safehouse's appeal in the Supreme Court, an omission some observers found notable.

With backing from city leaders, including Mayor Jim Kenney, Safehouse planned to build a drug treatment center in south Philadelphia featuring a so-called consumption room. Addicts could take illegal drugs under medical supervision in the consumption room, with expert personnel standing by in the event of an overdose or other adverse reaction. Staff would provide users with clean syringes, directions for safe injection, equipment to test drugs for contaminants, and referrals for social services. Safehouse did not intend to distribute drugs—participants would bring their own.

Safehouse and its progressive supporters say supervised injection sites prevent overdoses and disease transmission and create opportunities for constructive engagement with addicts. In a brief supporting Safehouse's appeal, a nationwide coalition of progressive prosecutors said they want to make such facilities generally available as part of a health-based approach to the drug crisis. They also claim clinical evidence shows safe injection sites "reduce crime and public nuisances related to injection drug use."

"Substance use disorder is, first and foremost, a medical condition requiring medical treatment," their brief reads. "Criminal sanctions by themselves do not address—and often exacerbate— the root causes of substance use disorder."

Another brief from drug policy scholars and ex-law enforcement officials was more equivocal. Among other problems, they said pro-injection site studies capture only a fraction of participant injections and rely on self-reporting from populations where addiction and mental illness are especially prevalent.

"At best, injection site studies' claims are simply not demonstrated and provable,'' their brief to the Third Circuit reads. "At worst, they are misleading and jeopardize the health and safety of addicted individuals."

In 1986 Congress made it a federal crime to own property "for the purpose ... of using a controlled substance." The so-called crack house statute was crafted to target property owners who put up with drug use or distribution on premises under their control. Such places contributed to blight and attracted a criminal element.

The Trump Justice Department asked a federal trial judge in Pennsylvania to block the proposed consumption room under the crack house statute. The trial court sided with Safehouse. The statute's purpose, the court said, is preventing heinous and concentrated drug activity, while Safehouse meant to offer medical care and diversionary programs.

But the government prevailed on appeal to the Third Circuit. Writing for the appeals court over one dissent, Judge Stephanos Bibas said property owners violate the law when they play host to any person who has the "significant purpose" of visiting the location to use drugs.

The Justice Department has not said anything about the Safehouse case since President Joe Biden took office. In an unusual move, the department waived its right to respond to Safehouse's appeal to the Supreme Court. Observers on both sides found fault with the passive approach. The progressive prosecutor coalition said the department was missing an opportunity to endorse "evidence based prevention."

"It is unfortunate that the government has chosen to waive its response to the instant petition," their brief reads. "The Court would undoubtedly have benefited from the views of the new administration and many state and local leaders are looking for federal guidance on this issue."

Zack Smith, a legal fellow at the Heritage Foundation, told the Washington Free Beacon the Safehouse case is not the sort of dispute the department ordinarily sits out. Smith said the Justice Department sometimes waives its response when the underlying legal questions have obvious answers, or where the lower courts were thorough and unanimous. But Tuesday's case divided judges in the lower courts, and the department itself previously staked a position against Safehouse.

"It is odd, no doubt about it," Smith said. "This is not the typical case where you would expect to see [the Justice Department] waive a response."

The case is No. 21-276 Safehouse v. Department of Justice.