The Justice Department’s War on Supervised Drug Use

Tom Houseman Uncategorized

Supervised consumption facilities are one of the most important harm reduction tools available in fighting the opioid epidemic and saving the lives of people with substance use disorders. Unfortunately, the Department of Justice (DoJ) is doing everything in their power from stopping Philadelphia from opening the first legal such site in the United States.

There are around one hundred legal, regulated supervised consumption facilities (SCF’s) around the world. Facilities have existed in Switzerland since 1986, in Australia since 2001, and in Vancouver, Canada since 2003. Insite, one of several sites in Canada, which has supervised nearly 4 million injections since it opened. Nobody has ever died of a drug overdose at Insite or any other public, legal SCF.

In the United States, where more than 130 people die of drug overdoses every day, it is illegal to run any sort of supervised drug consumption facility. This illegality has done nothing to quell the opioid crisis or to stop people from injecting drugs. Some of the alternatives in the US include unlicensed, underground facilities, which inherently carry more risk. Otherwise, people are injecting drugs in public restrooms or in private, making it extremely difficult for them to receive assistance if they overdose.

After decades of a failed War on Drugs, we are finally seeing a pivot from treating substance use disorders as a criminal justice issue to treating them as a public health issue. Unfortunately, not all public officials are on board. In particular, while the Trump Administration has preached the importance of addressing the opioid epidemic, their actions have sent more mixed messages. In February, they made it unequivocally clear that they will stand against progress.

Over the last few years the possibility of opening SCF’s has been debated in San Francisco, Denver, and Pittsburgh. Earlier this month, the Rhode Island State Senate passed a bill authorizing a supervised consumption pilot program there. The bill is now being considered by the State House.

Last year, when the Philadelphia-based organization Safehouse announced its plans to open a site at which people could inject drugs safely and with supervision, the proposal received the approval of District Attorney Larry Krasner, who made it clear that his office would not interfere with Safehouse in any way. The Department of Justice, unfortunately, had other plans. In February, the DoJ filed a lawsuit to stop Safehouse from moving forward with their plans.

The suit, filed by U.S. Attorney William McSwain, points to a provision in the Controlled Substances Act, 21 U.S. Code Section 856, that was written in the 1980s to target “crack houses.” The provision makes it unlawful to “knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance.”

Safehouse argues that this provision should not apply to a medical facility like an SCF. It is represented by AIDS Law Project of Pennsylvania and DLA Piper attorney Ilana Eisenstein. In their counterclaim to the lawsuit, Safehouse’s legal defense team wrote that “Providing lifesaving medical services to individuals who are suffering from substance use disorder does not and constitutionally cannot violate Section 856.”

In its opposition, the DoJ is sending a clear message. McSwain stated that the case “could be persuasive, or helpful authority to a judge in California, New York, Colorado, Washington State, or wherever this issue might come up.” Clearly, he wants every city around the country to know that an attempt to create a legal supervised consumption facility will result in a costly legal battle with the federal government.

The fact that there is precedence in Canada to support the legality of SCF’s is reassuring. In 2011, the Supreme Court of Canada ruled that locally-run SCF’s are exempt from federal prosecution.

Still, it is clear that McSwain believes that the Department of Justice has a strong case. He has argued that “Normalizing the use of deadly drugs like heroin and fentanyl is not the answer to solving the opioid epidemic.”

But among public health advocates and researchers, the evidence is clear. “These facilities save lives,” Philadelphia Health Commissioner Tom Farley said about Safehouse’s proposal, “while serving as an entryway to drug treatment.” Hopefully, as visibility of the effectiveness of SCF’s increase, the idea will become more popular, and creation of such facilities in the United States more politically feasible.

In the meantime, the Department of Justice’s lawsuit against Safehouse marks a serious turning point for harm reduction policies around the United States. Many cities and states have come around to increasing access to the overdose-reversing drug Naloxone, to syringe exchange programs, and to Good Samaritan laws that protect people who call emergency services in the event of an overdose.

The opioid epidemic is a serious problem with no simple solutions, but there is considerable evidence that SCF’s work, will work in the United States, and do not incentivize drug use or lead to increased rates of use.

How much longer will the Department of Justice ignore this evidence? How many lives will be needlessly lost in the meantime? Depending on how this lawsuit plays out, we may find out the answer soon.

Tom Houseman, Policy Director

Illinois Cannabis Bill Resets the War on Drugs 

Rev. Alexander E. Sharp Marijuana Legalization

On Friday, May 31st, 2019, the Illinois House reset the War on Drugs for an entire nation. It passed legislation approving adult-use cannabis and sent it to the Governor for his signature. 

Our nation’s drug laws were founded in racism. The major reason this bill passed was because it will begin to repair what such racism has wrought. 

When Congress passed the Marijuana Tax Act of 1937, few members knew what “marijuana” was. A virtually self-appointed federal drug czar named Harry Anslinger had brainwashed the members with claims  to the effect that “Negroes under the influence of that crazy drug will molest our women,” and “Lazy Mexicans smoking weed will take our jobs.” 

With the help of William Randolph Hearst’s “yellow journalism” chain, Anslinger created a stigma around marijuana use that has infected the national consciousness for over 80 years. This stigma has given police license to break into the homes of people of color and round them up on mere suspicion of possession.  Marijuana laws have always been at the forefront of our national War on Drugs.  

Finally, Illinois is effectively repealing these marijuana laws. Their legacy is written in the lives lost to racist and unjust prison sentences. It will take many years to undo even a portion of this damage. Fortunately, this bill is a start.

Prohibition is misguided. In trying, and failing, to stop people from using drugs, it turns them into criminals. Treating people as criminals simply because they use drugs is cruel and immoral.

So, thank you, Governor Pritzker. Thank you, Sen. Heather Steans, and Rep. Kelly Cassidy, the lead co-sponsors of SB 7 and HB 1438. Thank you, Marijuana Policy Project staff, who helped to craft a hideously complex piece of legislation under extreme time pressure.

Thank you to the 58 religious leaders who supported this legislation with a letter to the General Assembly. You have shown that clergy can speak out against the stigma that has blinded too many of their colleagues to racial injustice and misguided prohibition.  

With the Cannabis and Regulation Tax Act, Illinois has demonstrated that it is possible to regulate cannabis through legislative action, something no other state has yet been able to do. All of you have brought us to the point where a national reset on the War on Drugs is not just a dream. At long last we can see the way.  

Rev. Alexander E. Sharp, Executive Director

SB7: Letter in Support

Rev. Alexander E. Sharp Marijuana Legalization

May 24, 2019

To the Illinois General Assembly: 

As clergy, we care deeply about social justice. The criminalization of cannabis, even for simple possession, has crippled the lives of people of color disproportionately for more than four decades. This is why we – the undersigned – believe it is time to move to a system of legal, regulated and taxed adult-use cannabis in Illinois. 

Current cannabis laws, fines, and arrests are carried out with staggering racial bias. The illicit market, which prohibition makes inevitable, continues to breed violence in our poorest communities all across Illinois. 

Regulation would make Illinois a safer state.  It would allow us to educate adults, informing them about what a product contains and enabling them to make informed decisions. Banning sales by law to those under 21 would help to limit access to our youth.  Under prohibition, these measures are not possible. 

Legislation being considered in Springfield would permit the expungement of cannabis arrests and convictions and allocate funds to communities ravaged by the War on Drugs. It would provide valuable business opportunities to minorities. 

We cannot wait any longer to make this the law of the land in Illinois. We urge you to vote yes on a regulatory system that works for all of Illinois.

Signed,  

Reverend Scott Aaseng

Reverend Lee Barker

Reverend Robert E. Biekman

Reverend Barbara Bolsen

Reverend Danielle J. Buhuro

Reverend Fanya Burford

Reverend Julian DeShazier

Reverend Randall Doubet-King

Reverend Dr. Russell Elleven

Reverend Emily Gage

Reverend Franklin Gamwell

Reverend Edward Goode

Reverend Joy Grainge

Reverend Larry L. Greenfield

Reverend David Gregg

Reverend Allen Harden

Reverend Alice Harper-Jones

Reverend James A. Hobart

Reverend Darrick Jackson

Reverend Sarah Jay

Reverend Dr. Matthew Johnson

Reverend Veronica M. Johnson

Reverend Jonathan Knight

Reverend Jesse Knox III

Reverend Mike Lesperance

Reverend Sarah Lusche

Reverend H. Scott Matheney

Reverend Lucie Macfarlane
Minister Darren Calhoun

Reverend Florence Caplow

Reverend Tom Capo

Reverend Jason Coulter

Reverend George W. Daniels

Reverend Roger Dart

Reverend Kevin J. McLemore

Rabbi Rachel S. Mikva

Reverend John Modschiedler

Reverend Richard Mosley Jr.

Reverend Karen Mooney

Reverend Dr. Marilyn Pagán-Banks

Reverend Christopher Powell

Reverend Mary Rawlinson

Reverend Thomas Rawlinson

Reverend Kathryn Ray

Rabbi Frederick Reeves

Reverend Saeed Richardson

Reverend Vilius Rudra Dundzila

Reverend Pamela Rumancik

Reverend Alexander Sharp

Reverend Robert Trask

Reverend Kathaleen Valek

Reverend Colleen Vahey

Reverend Amy Wharton

Reverend Gunnar Williams

Reverend Eileen Wiviott

Reverend Ronald Young 

Don’t Wait to Legalize Marijuana in Illinois

Rev. Alexander E. Sharp Marijuana Legalization

State of Illinois Capital Building

Finally, we have the opportunity to legalize marijuana in Illinois.   Senate Bill 7, now before the General Assembly, would permit and regulate marijuana use for adults over 21.  Our new Governor is committed to the measure. Over 60% of Illinoisans are in favor and have been for a long time.  Yet some are still saying, “Let’s wait another year.” Here’s why they are wrong.

Let’s start by looking at what this bill does.  First, it begins to reverse social injustices that our marijuana laws have quietly and cruelly inflicted over the past 80 years.  Most of Governor Pritzker’s May 4 press conference announcing the bill was dedicated to this point.

Illinois will allocate huge anticipated revenue from cannabis sales to restoring communities the War on Drugs has done so much to destroy. It will expunge the criminal records of hundreds of thousands of residents convicted of minor marijuana offenses that would not have been illegal under this legislation.  It offers jobs and access to capital to minorities now operating in an illicit market that too often leads to their arrests.

Governor Pritzker and his staff have given us a bill that can be a model for the nation when it comes to repairing past wrongs.  Other states will look to Illinois as they did when the state passed what is widely recognized medical marijuana legislation in 2013.  We should not wait another year to act when it comes to social justice.

Moreover, SB 7 reflects the best way to respond to the potential for all substance abuse, including by young people.  We know that teen use has not increased in the 10 states that have legalized adult-use cannabis. Why? Regulation and education work; prohibition does not.   

Education and, when necessary, treatment are better responses than arrests and incarceration.  It has taken us far too long to figure this out. But as a society we now know this is the way to go. Changing our marijuana laws is a critical part of this long-overdue national transformation.

We constantly hear that marijuana today is more potent than in the days of Woodstock. That’s precisely why we need a legal market that is taxed and regulated. When purchasing in a black market, potency and possible adulteration are threats. But in regulated markets, content and amount are clearly labeled.  This protects against exactly what opponents of legalization say we should be afraid of.

We also know that taxpayers in Illinois continue to spend hundreds of millions of dollars each year enforcing cannabis laws. Yet prosecutions for possession have dropped significantly in most states that have legalized it.  The changes proposed in SB7 will relieve an overburdened criminal justice and court system and save taxpayer money.

Cannabis policy has been a serious discussion in Illinois for years, and we used that time to hear from other states, look at their example, and build on our own experience with regulated medical cannabis. Waiting another year just perpetuates a system we know is a failure.  But this year, Illinois has the opportunity to pass a meaningful law that draws from those lessons, improves on them, and provides the nation with a model of social justice and drug policy reform. This is a critical moment. We should seize it.

Rev. Alexandar Sharp, Executive Director

How Prosecutors Are Stuffing Our Prisons

Rev. Alexander E. Sharp Mandatory Minimums

As a nation, we are beginning to change our draconian laws. Seventeen states have developed alternatives to criminalizing at least some drug users. But barriers to change remain, most notably prosecutors across the country who continue to insist on the need for criminal sanctions.  

In a superb new book Charged, Emily Bazelon tells us why. She shows how county prosecutors, often unconsciously, exploit the Reagan-Bush-Clinton era drug laws described in Michelle Alexander’s The New Jim Crow to their own professional advantage.  

Mandatory minimum sentencing and “three-strike” laws enable prosecutors to threaten long prison terms, and then coerce a plea bargain agreement that nevertheless leads to incarceration. Can we believe in the fairness of our criminal justice system when 95% of all cases are now plea-bargained, usually in secret?

Bazelon is right to focus on prosecutors as obstacles to change. By demonstrating what prosecutors can and will do, she helps us see that we can never end the War on Drugs as long as criminal sanctions against drug use exist.

Consider my home state of Illinois. In January, reformers filed HB 2291, a bill that would reclassify low level drug possession offenses as misdemeanors rather than felonies. They did so because felony convictions are far more likely than misdemeanors to wreck lives.

The bill got a respectable hearing even as it was opposed by the Illinois States Attorneys Association, composed of county prosecutors. Why? The states attorneys argued that only with the threat of felony sanctions can they force drug users into treatment. In other words, society needs criminal sanctions to keep people from becoming criminals.

This view sounds illogical, and it is. It also contradicts convincing research that prison sentences do not reduce drug use.  In fact, people who go prison once are more likely to go back. In 2015, the Illinois State Commission on Criminal Justice and Sentencing Reform found that “long sentences have not had the desired deterrence effect, but have consequences that can be disproportionate and counter-productive.”  

If incarceration does not deter drug use, is it at least effective as a threat against those who might not otherwise belong in prison? Prosecutors and judges use it that way, often stipulating that charges or convictions will be set aside upon successful completion of treatment. This, too, often does more harm than good.

Since the possibility of treatment is not widely available for those who need it, many will, in fact, end up in prison solely for this reason. Further, using prison as a threat ignores the possibility of relapse, at which stricter punishment will kick in. Criminal penalties stigmatize those who use drugs so that they avoid treatment they might otherwise seek. Finally, programs that divert individuals too often engage in “skimming,” offering treatment only to the “easiest” cases.

It will be a tough to convince prosecutors not to oppose HB 2291 in Illinois and similarly compassionate programs in other states. When I asked Bazelon about this last week, she commented, “Oh, we charge people with crimes, so we can coerce them into treatment? That’s not what the criminal code is for.”

We should be profoundly grateful to Emily Bazelon for helping us to understand prosecutorial behavior. But we must go further even than she takes us. As long as a drug possession is a crime, the justice system will harm people who do not deserve to be treated as criminals. At the end of the day, decriminalizing all drug use is the only sane and decent path.

Rev. Alexander Sharp, Executive Director