Safe Injection Sites and the Federal 'Crack House' Statute

Abstract

Safe injection sites have become the next battlefield in the conflict between state and federal drug laws. A safe injection site is a place where injection drug users can self-administer drugs in a controlled environment under medical supervision. They have been operating in other countries, including Canada, for decades and a wealth of evidence suggests that they can help to reduce overdose deaths. To date, however, no U.S. city or state has sanctioned a safe injection site. Until recently, safe injection sites were politically untenable, seen as a form of surrender in the war on drugs. This dynamic has changed over the past few years as prominent politicians from both parties have called for an end to the drug war and the opioid epidemic has grown increasingly dire.

Efforts to start a safe injection site are currently underway in at least 13 cities and states. Four cities—New York, Philadelphia, San Francisco, and Seattle—have gone so far as to announce plans to open an injection site. There is just one small problem. They appear to violate the federal “crack house” statute, which makes it a crime to maintain a drug involved premises. The Department of Justice has not yet taken a formal position on safe injection sites. But in a New York Times editorial, Deputy Attorney General Rod Rosenstein threatened that “cities and states should expect the Department of Justice to meet the opening of any injection site with swift and aggressive action."

Surprisingly, this looming conflict has gone almost entirely overlooked by legal academics. Meanwhile, the public debate has assumed that the status of safe injection sites under federal law is clear. In this article, I argue that assumption is wrong. Despite the crack house statute, an obscure provision of the federal Controlled Substances Act (CSA) might allow states and localities to establish government-run safe injection sites. Buried in the CSA is a statute that immunizes state and local officials who violate federal drug laws in the course of “the enforcement of any law or municipal ordinance relating to controlled substances.” This provision was almost surely intended to protect state and local police officers who possess and distribute drugs in connection with undercover operations. But, I argue, the text of the immunity provision and the little caselaw that exists interpreting it suggests it could shield government-run safe injection sites from federal interference.

Keywords: safe injection sites, opioid crisis, drug policy, drug law, war on drugs