Safe injection facilities (SIFs) are a critical harm reduction strategy for combating deaths, illnesses and other risks associated with illicit drug use. These sites do not condone or condemn the use of drugs, instead they allow addicted populations access to a safe space staffed with medical personnel. These at-risk individuals can test their drugs for adulterants, find clean needles (which can then be safely disposed of) and be in a space that has Narcan on hand in the event of an overdose. Additionally, there are trusted staff on-site to make sure that while these individuals are intoxicated, they are not the victims of robbery or assault.
If the goal is to improve and save lives for people with substance use disorders (SUDs), then SIFS are an increasingly appealing option for delivering safety to a marginalized cross-section of the population. If the goal is to save money, SIFs also have the potential to cut costs by reducing exposure to bloodborne pathogens, reducing emergency room visits and reducing money spent on the prosecution of nonviolent drug crimes.
This article will examine the scope of the opioid epidemic in the United States, as well as how Massachusetts compares to other states and municipalities. It will briefly reflect on the data around how the introduction of SIFs has improved these measures in their communities. Finally, the paper will examine the laws and policies at the federal and local levels which will likely influence how implementing a SIF program in Massachusetts will play out.
Impacts of the opioid epidemic on Massachusetts:
Massachusetts currently ranks fourth in the nation for deaths due to opioid overdose. In 2017 Massachusetts’s death rate was twice the national average. Deaths due to opiates have slowly increased since 2000. In 2000 there were just 375 opioid cases in the state of Massachusetts. In 2014 these deaths surpassed 1000 and in 2016 there were 2,097 confirmed Opioid deaths in the state. Of the 2,097 deaths in 2016 1,550 were due to the synthetic opiate Fentanyl, a drug almost unheard of only three years before and now the leading cause of Opioid-related deaths in the country. Since 2016 estimated opioid deaths in Massachusetts have remained above 2,000 per year but seem to have remained stable with 2019 seeing 2,023 opioid-related deaths.
Community impacts from opioid use are not limited to deaths due to overdose. Bloodborne pathogens such as HIV and Hepatitis C can be passed between intravenous drug users when they share needles. In Massachusetts, the prevalence of these infections is also above the national average.
An indirect consequence of the opioid epidemic is a greater number of improperly discarded needles reported in Boston. In the two years from May 2015 to August 2017, there were 4,763 discarded needles reported with 78.3% of these needles found, “within 1 kilometer of methadone clinics, safe needle deposit sites, homeless shelters and hospitals.”
The Massachusetts Taxpayers Foundation (MTF) has estimated the total cost of the Opioid Epidemic for the Commonwealth of Massachusetts for 2017 at $15.2 billion. The MTF calculates that the Massachusetts economy lost $5.9 billion just in lost productivity of people unable to work and spends about $675 million on ER visits, first responder calls, and opioid-related police costs. This number does not include an additional $500 million spent on prosecuting and imprisoning people with SUD. The MTF estimates that the actual annual cost to the state is much higher than this.
SIFs would have a positive quality of life impact for all residents of Massachusetts, not just IDUs. Testing and first-aid resources would mean fewer deaths from overdose. Educational resources and clean needle availability would mean fewer people contracting bloodborne illnesses. For the community there would be fewer people injecting on the street, out in the open, and fewer needles improperly disposed of in public spaces. These are all measurable aspects of the opioid epidemic that could easily be curbed by the creation of SIFs in the most critically impacted neighborhoods of Boston.
What is harm reduction? What are SIFs?
“Harm reduction is a set of policies and practices intended to reduce the negative effects of drug and alcohol use.” One harm reduction strategy that has been gaining traction is the creation of safe injection sites for intravenous drug users. At the most fundamental level, SIFs are sites sanctioned by a municipality to provide supervision, sterile supplies, first aid/general medical advice and fentanyl testing for people injecting drugs. Additionally, these sites can be used for outreach through the presence of educators, councilors and referrals if the patients request the information. The goal of these sites is to reduce the potential harm to those using services while also reducing the impacts of intravenous drug use in the surrounding community.
Harm reduction-based policies compel us to consider the question, “what counts as saving a life?” Advocates for SIFs will argue that the reduction in morbidity and mortality, as well as cost savings and neighborhood safety improvements, should frame the conversation around the validity of these intervention sites. There is strong evidence that SIFs preserve life and improve quality-of-life for those who inject drugs.
An argument against SIFs is that they are not sites for recovery but instead encourage those with SUD to continue using. While the ultimate goal of harm reduction is to prevent deaths from overdose, there is data showing that a number of those using the services eventually do seek treatment. Even if these services were not funneling patients into recovery, evidence shows improved quality of life for the IDU.
Those against SIFs also believe they will worsen quality-of-life for people living in the surrounding neighborhoods by acting as a draw for IDUs and their dealers. This reflects sentiments contained within many of the quality-of-life arguments presented against SIFs, and are counter to the data gathered by researchers whom have observed them since the establishment of Insite in 2003. Seventeen years of data collection across 120 safe injection sites have shown that these arguments are based on stigma and not facts.
What can studies on international SIFs tell us about their effectiveness?
Alternately, disproving counter-claims to SIfs as an effective harm to both IDU and surrounding communities can include looking abroad. There are currently 120 SIFs operating in ten countries. SIFs have been shown to improve patient mortality and morbidity outcomes, improve quality of life for residents in the area and have a measurable cost-effectiveness value for local governments.
Mortality and morbidity outcomes in cities with SIFs saw drastic improvements after these facilities opened. There were fewer lethal overdoses, fewer EMS calls for overdose during SIF operating hours and improved care for injection-related injuries. Due to the presence and training of staff in overdose reversal, estimates show that there is only one overdose per 1,000 injections at SIFs. Of these, there have been no reports of fatal overdose. These sites are doing what they are intended to, which is keeping patients safer and healthier despite their high-risk lifestyles. Based on Massachusetts’s aforementioned high number of opioid deaths, high number of bloodborne pathogen infections and an increase in the availability of fentanyl, a strategic implementation of SIFs would be an appropriate intervention approach in hot spot neighborhoods.
Quality of life improvements extend to the residents of neighborhoods where SIFs are opened in the form of fewer people injecting openly on the streets and fewer improperly discarded needles. Areas like Boston’s South End and Roxbury neighborhoods, where discarded needles have become a significant problem, could see fewer discarded needles in public spaces.
Studies on injection behavior estimate that those using SIFs are twice as likely to properly dispose of their needles, three times more likely to inject in a clean space and reduce the number of times that they inject in public when provided with access to SIFs. SIFs would reduce the risk for needle stick injuries to residents of the neighborhood and reduce the number of visible injections occurring in these neighborhoods. The data does not show that claims of crimes such as petty theft will increase when SIFs open.
An additional benefit of implementing SIFs is the money saved by municipal governments. An economic feasibility study for San Francisco estimated that for every dollar spent on SIFs the city would save $2.33 based on estimated aversion of bloodborne pathogens, reduced skin infections, fewer overdose deaths and an increase in people switching to medication-assisted treatment as a result of using the sites. A cost-effectiveness study of a Vancouver SIF found that when only considering the decrease in needle sharing, the health effects of safe injection practices and increased referral to methadone maintenance treatment, the savings to the city tallied up to more than $18 million and 1175 life-years gained over the course of ten years.
Neither of these studies takes into account the additional savings that could come from a reduction in spending on enforcement of minor drug laws, reduced incarceration of IDUs and fewer emergency room visits for drug-related illnesses. Based on data from studies showing the reduction in these interventions, and reflecting on the $15.2 billion Massachusetts is losing each year to the Opioid crisis, the state stands to save a significant amount of money by implementing SIFs.
What does the law say?
As the opioid crisis has ramped up, various cities and states around the US have looked into the feasibility of SIFs to reduce deaths and improve lives. Members of the current US Department of Justice have come out strongly against SIFs, stating that they would proceed with lawsuits and or criminal charges if a municipality proceeds with installing one.
How successful would Massachusetts (or any one of its most impacted cities) be if they allowed the installation of a SIF? The feasibility of SIFs are dependent on the political environment both in Washington DC and at the local level, as well as judicial opinions that guide the applicability of current and future drug laws.
The Federal Government has jurisdiction over drug-related activities via the commerce clause within the US Constitution. Although SIFs do not participate in interstate or international commerce, the Supreme court ruled in Gonzales v Raich that Congress can regulate purely local activates, such as the cultivation of marijuana, if that activity has a substantial effect on interstate commerce.
There are two parts of the US drug code that allow federal law enforcement to go after organizations trying to establish SIFs or their patients:
- 21 USC 844 contains the laws regarding penalties for simple possession. Utilizing this law would require federal law enforcement to pursue the patients themselves and is not a likely avenue for the Drug Enforcement Administration (DEA) to spend its time and resources pursuing. Though the DEA could pursue this if they wanted to harass the SIFs through their patients.
- The more likely avenue of enforcement is via 21 USC 856, a law prohibiting the maintenance of drug-involved premises and also known colloquially as “the crack house law.” This legislation states that: “Except as authorized by this subchapter, it shall be unlawful to; – (1) knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance; (2) manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.”
Individuals or organizations in violation of 21 USC 856 face criminal penalties of up to 20 years as well as steep fines and civil penalties. The threat of civil and criminal penalties through this law has been enough to dissuade anyone from openly establishing a SIF in the US. Recently, a group called Safehouse challenged the validity of this code and in October of 2019 a federal court ruling on a proposed facility in Philadelphia gave hope to proponents of SIFs.
In February 2019, US Attorney William McSwain sued the Philadelphia based non-profit, Safehouse. McSwain sued using 21 USC 856 claiming that by establishing a SIF, Safehouse would be violating federal law. The counsel for Safehouse successfully argued that “allowance of some drug use as one component of an effort to combat drug use will not suffice to establish a violation of § 856(a)(2). The ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it, and accordingly, § 856(a) does not prohibit Safehouse’s proposed conduct.”
There are two caveats to how this decision would affect SIFs in Massachusetts. The first is that this decision states that the purpose of Safehouse is to combat drug use; however, the true intention of SIFs is harm reduction. While harm reduction programs include means for people to recover if they want to, it is not the intention of these sites to foist recovery on people, which could lead to this decision being overturned by a higher court. The second caveat presented by Deputy Attorney General, Jeffrey Rosen, includes further statements that assert the justice department would continue to take action against anyone trying to move forward with implementing a SIF, despite the aforementioned ruling.
Locally, US Attorney Andrew Lelling of the US District Court of Massachusetts is staunchly opposed to the opening of SIFs and has signaled that he may bring criminal charges or sue on behalf of Federal authorities. It is likely that there will be a fierce court battle if the Commonwealth of Massachusetts begins moving to implement these facilities.
Massachusetts laws
When speaking to officials at the Massachusetts Statehouse in 2019, Richard Cloutier, of Quebec Canada’s Ministry of Health and Harm Reduction Services stated that when implementing SIFs in Canada, the sites were tacked onto pre-existing needle exchange programs that already existed in the Provence. Massachusetts has laws in place regarding authorization of needle exchanges as well as laws regarding the legalization of marijuana. Some changes to these laws could set the state and local politicians up to implement SIFs. These changes would be needed to make the sites legal protect them, and their patients, from harassment from local law enforcement.
Needle exchanges were first authorized in Massachusetts in 1993, and in 2006 Massachusetts decriminalized the possession and distribution of hypodermic needles. A 2017 Massachusetts Supreme Judicial Court decision decided that the 2006 law overrides some of the provisions in the 1993 law restricting exchanges to having approval by the state or a local municipality making these services easier to implement by private organizations. Massachusetts needle exchanges often offer a host of additional services that are also offered by SIFs. Some of these services include medical case management, peer support, testing for diseases such as HIV and information on safe injection practices. It would be easy to extend the mandate for these needle exchanges to also offer supervised injection.
Leo Belettsky, a JD/MPH currently teaching at Northeastern, opines that the best way to implement a SIF is to acquire explicit authorization by the state legislature or executive branch. This type of authorization would be in the same vein as to how Massachusetts has already legalized medical and personal use of marijuana. This could protect a SIF from state law enforcement but would not protect the SIF, or the state, from Federal law enforcement. Without this state approval, any city ordinances permitting SIFs could be overturned or ignored, therefore it is in the interest of organizers to achieve state action.
State authorization of SIFs poses another question as to how to protect patients from being arrested by local law enforcement as they enter or exit the premises. Permitting the establishment of SIFs will protect those running the sites, but these laws do nothing for people entering or exiting the premises, and they do not extend to the patients in their day to day lives. As an example, police in Canada have used their knowledge of these sites and their patients as a way of boosting arrest rates. It is vital that Massachusetts accounts for these possibilities when creating any law allowing for the establishment of SIFs.
There are a number of ways the IDU population could be protected.
- The state could provide authorization cards for chronic injection drug users (IDU) in the vein of prescriptions for medical marijuana. However, those most in need would likely be unable to afford one if the program relies on medical providers and licensing boards.
- Decriminalizing possession of small amounts of injectable drugs is another avenue, but it could open avenues to abuse elsewhere.
- The state could prioritize prosecutions of those dealing the drugs while choosing to ignore or throw out cases involving possession of small amounts of the drug. However, relying on law enforcement agencies to use this kind of discretion is not advised.
The creation of regulations and laws that insulate SIFs and their patients from (state level) law enforcement stopping individuals as they go to and from these facilities may be the best way to protect patients of SIFs. However, until the US Department of Justice changes its stance on SIFs, patients will continue to be at risk from federal law enforcement – motivated by the likely goal of intimidation to force the closure of SIF sites.
Political environment in Massachusetts
The current Governor, Charlie Baker, has very directly opposed the implementation of SIFs in Massachusetts. His statements reference earlier cited statements by Andrew Lelling, US Attorney for the District of Massachusetts. Despite their opposition, both Mayor Joe Curatone of Sommerville and Mayor Marty Walsh of Boston have made public statements in favor of implementing these programs. Curatone has announced that Sommerville plans to go ahead with plans for a SIF, while Walsh, who was previously undecided, has indicated that he is now open to discussions on implementing these sites.
Outside of the Boston area, regions such as Cape Cod and the Berkshires, have also had their share of difficulties with the opioid epidemic. Northwestern District Attorney David E. Sullivan, who covers the Pioneer Valley has shown support for SIFs and other ‘outside the box’ thinking to address solutions for this epidemic.
Barnstable county on Cape Cod sued its local needle exchange in an attempt to have it shut down, but lost the case. This signals that there would likely be resistance to the implementation of SIFs in this area.
Further, the Mass Medical Society is in favor of implementing SIFs, which it voted in favor of after publishing a 2017 fact-finding report. Other positive signals include the Massachusetts Legislature publishing a report from its Harm Reduction Commission followed by the hosting of a series of events at the Statehouse to gain support for SIFs among members of the legislature and the executive branch. This has been concurrent to State Senators working on a draft of a bill to allow SIFS.
Unfortunately, there is no indication as to whether or not there will be enough support to pass a state law through the legislature that would permit SIFs at this time, especially as these initiatives currently lack the support of the Governor. In Massachusetts, the House needs 107 of 160 votes, and the Senate needs 27 of 40 members to override a veto. The Democratic party does have a supermajority in the legislature at present, but this does not mean that all members of the party would be inclined to implement a policy seen by many as radical.
Beyond the political obstacles faced, any organizer wanting to develop a SIF would need to meet with neighborhood stakeholders. These sites would likely be established by some of the already existing needle exchanges. However, even if a SIF is independently established, it would likely be opened in what are now gentrified neighborhoods where new community members have been actively trying to remove the homeless and populations with SUD. As an example, the South End has long been a place where services benefiting the most vulnerable populations in Boston are concentrated. The area has recently seen more police sweeps and other actions against the homeless residents encamped there in response to increased pressure from new residents and business owners.
Massachusetts is currently in a public health crisis as a result of the opioid epidemic. The SIF model lends itself well to curbing the worst consequences of the crisis, thus improving life for all residents of the commonwealth. When we reduce the consequences of injection drug use, the state and impacted cities, such as Boston, will also see an increase in savings as a result of fewer deaths, infections and emergency services calls. It would be a boon to Massachusetts to begin moving forward with regulations and legislation that will allow SIFs to operate legally.
While the recent judicial interpretation of 21 USC 856 seems favorable, it may be prudent to highlight that a US Supreme Court decision could quickly overturn this decision. Additionally, the current political environment in both Washington DC and the Massachusetts Statehouse may prevent implementation at this time.
