Jurisprudence

One Simple Way Biden Could Prove He Regrets His Role in the Drug War

The Trump DOJ is making a last-ditch effort to criminalize a promising overdose prevention strategy.

People sit in carrels while injecting drugs.
A supervised injection site in Vancouver, Canada in 2011. AFP/Getty Images

More and more American politicians are gradually recognizing drug addiction is a public health issue rather than a crime. Faced with an overdose crisis that killed nearly 72,000 Americans last year, some U.S. cities are exploring the model of supervised consumption sites, where people can use illicit drugs under medical supervision. But the Trump administration is making a last-ditch effort to close off this possibility. On Monday, a panel of judges on the Third Circuit Court of Appeals heard arguments in USA v. Safehouse, a case concerning one proposed site in Philadelphia. The decision could determine the fate of supervised consumption sites. At stake is whether these sites violate an obscure federal drug law dating back to 1986, known as the “crack house” statute, which holds those who make their property available for the purpose of using drugs criminally liable.

Both sides were equally grilled by the judges, but at multiple points the judges referred to Safehouse, the Philadelphia nonprofit which aims to open the first legally sanctioned consumption site on American soil, as having a “benevolent motive,” and agreed the site may very well save lives. Meanwhile, Trump’s conservative Department of Justice has argued in and out of court that consumption sites are not only illegal, but that they promote drug use and bring crime to neighborhoods, aligning with his “law and order” rhetoric.

“It is uncharted territory,” said Ilana Eisenstein, the attorney who argued on behalf of Safehouse. “The court was very concerned about the scope of the statute and attentive to our argument that the statute does not cover Safehouse’s overdose prevention services, which are directed at saving lives of people who are suffering from addiction, not directed at encouraging unlawful drug use.”

U.S. Attorney William McSwain, a Trump appointee overseeing the Eastern District of Pennsylvania, closed his argument by saying he isn’t against Safehouse’s goal to save lives. “We’re on the same side as Safehouse in that we’re very concerned about the opioid epidemic,” he said. “We’re trying to do everything we can to fight back against that and to save people’s lives as well. But it has to be done in the balance of the law.”

The three judges carefully dissected the language and grammar of the law in question, and at times proposed convoluted hypothetical scenarios—like the legality of a lawyer using cocaine at work, or parents allowing their addicted child to inject drugs in their home—to gauge the scope and implications of any potential ruling, which may come weeks or months after the hearing in a dramatically different political climate.

Once Donald Trump leaves office, President-elect Joe Biden’s Department of Justice could decide to drop the lawsuit against Safehouse entirely. It was Biden who authored and championed the crack house statute as a senator in the ’80s. The president-elect, whose son has publicly struggled with crack addiction, has since expressed regret about some of his drug war era legislation. Dropping the case against Safehouse would effectively defang his own legislative legacy and signal Biden’s evolution on the drug war—a war that he helped legislate into existence.

The Third Circuit panel will decide the case in the wake of an election that has deeply changed the map of drug laws in America. From red states legalizing cannabis to Oregon decriminalizing all drugs, the attitudes held by Americans about ending the drug war seem to be at a tipping point. The outcome of USA v. Safehouse could further nudge America off its longstanding trajectory of harsh criminalization and abstinence-only approaches to addiction treatment, which experts argue has only worsened the overdose crisis.

Eisenstein, who represents Safehouse, also mentioned Biden’s Department of Justice as a future wild card. “While he was one of the sponsors of the amendment, then-Senator Biden’s statements were reflective of the fact that he saw this statute as more narrowly targeting predatory behavior by concert or rave promoters, or crack house operators, who were establishing those venues for the purpose of drug trafficking activity,” Eisenstein said. “I’m not sure he would agree with the government’s position that’s been taken in this litigation.”

The Biden campaign did not return a request for comment by the time of publication.

The contentious legal drama over supervised consumption sites began in February 2019, when McSwain tried to prevent Safehouse from opening in Philadelphia by filing a civil lawsuit asking a federal court to declare that consumption sites violate federal drug law. In October 2019, a federal district judge delivered a blow to McSwain by ruling in favor of Safehouse: “The ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it,” Judge Gerald McHugh Jr. wrote in his opinion.

If the Third Circuit decides to uphold McHugh’s opinion, the government could still ask the ultra-conservative Supreme Court to take up the case and potentially reverse the lower courts. But they’re running out of time: on Jan. 20, Trump will be out of office and a new Department of Justice will be calling the shots. At that point, Safehouse attorneys hope Biden’s administration will see that a supervised consumption site is worth trying and end the litigation once and for all.

If Safehouse loses at this stage, the decision would only affect Pennsylvania, Delaware, New Jersey, and the Virgin Islands. Cities outside this region could still try to implement their own consumption sites, but it would be an uphill battle without the support of the new administration.

“One of the sides could decide to drop the matter,” Leo Beletsky, a professor of law and health sciences at Northeastern University, said. “This is exactly what the Biden-Harris administration must do. They should relinquish their misguided position that federal law stands in the way of public health measures proven to save lives.”