The Legality of “Safe Injection Facilities” in Baltimore, MD
Elizabeth Barry*
In 2016, Baltimore City experienced 454 heroin-intoxication deaths, an increase of 194 deaths from 2015. Md. Dep’t of Health, Drug- and Alcohol-Related Intoxication Deaths in Maryland 14 (2017), https://bha.health.maryland.gov/OVERDOSE_PREVENTION/ Documents/Quarterly%20Drug_Alcohol_Intoxication_Report_2017_Q1%20(2).pdf. 2017 was on track to be even more deadly, with 90 reported heroin-intoxication deaths in just the first quarter of 2017, as compared to 67 deaths in the first quarter of 2016. Id. at 10. These statistics do not account for the terrifying rise of the lethal drug fentanyl. In 2016, Baltimore City suffered 419 fentanyl-intoxication deaths, as compared to 120 deaths in 2015. Id. at 15. Similarly, 2017 was on track to be worse with 123 fentanyl-intoxication deaths in just the first quarter of 2017, compared to 46 deaths in the first quarter of 2016. Id. at 11. What can be done to curb these alarming statistics?
Susan G. Sherman, PhD, MPH, professor in the Bloomberg School of Public Health at Johns Hopkins University, suggests that a safe space for illegal drug consumption would greatly help. Susan Gail Sherman, PhD, Johns Hopkins Bloomberg Sch. Pub. Health, https://www.jhsph.edu/faculty/directory/profile/924/susan-gail-sherman (last visited Mar. 1, 2018); Susan Sherman et al., Abell Found., Safe Drug Consumption Spaces: Implications for Baltimore City 2–3 (2017), http://www.abell.org/sites/default/files/files/ Sherman%20Full%20length%20Report%20_final%20(002).pdf. These facilities would provide a clean environment where people can use their own drugs with medical personnel on hand to stop overdoses should they occur. Sherman et al., supra, at 2. According to Sherman, operation of the facilities would “reduc[e] needle re-use and sharing and therefore incidence of HIV/HCV and SSTI [(skin and soft tissue infections)], by reducing the costs to society of addictions and overdose deaths.” Id. at 10.
I. Proposed Legislation: House Bill 0519
Maryland Delegate Dan Morhaim from Baltimore County proposed a bill in January 2017 titled “Overdose and Infectious Disease Prevention Safer Drug Consumption Facility Program.” H.D. 519, 2017 Leg., 437th Sess. (Md. 2017). If passed, this bill would permit Overdose and Infectious Disease Prevention facilities throughout Baltimore City to “[p]rovide a location supervised by health care professionals or other trained staff where drug users can consume preobtained drugs.” Id. Additionally, staff at these facilities would provide “sterile injection supplies” and “[a]dminister first aid, if needed, monitor participants for potential overdose, and administer rescue medications . . . .” Id.
Furthermore, the proposed legislation contains a provision excluding participants of the facility from criminal prosecution. Id. The legislation states:
Any of the following persons acting in accordance with the provisions of this subtitle may not be subject to arrest, prosecution, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board, or be denied any right or privilege for involvement in the operation or use of services of the Program.
Id. Clearly this is a direct contradiction of state and federal drug laws. See, e.g., 21 U.S.C. §§ 841–843 (2010); Md. Code Ann., Crim. Law §§ 5-601–5-628 (West 2018). Therefore, how will these facilities be able to operate legally in Maryland? Despite harsh drug laws, “safer injection facilities” (SIFs) operate in Australia, numerous European countries, and Canada. Sherman et al., supra, at 2, 4.
II. Canada v. PHS Community Service Society
In 2003, Vancouver, Canada, became home to Insite, the first SIF in North America. Canada v. PHS Cmty. Servs. Soc’y, [2011] S.C.R. 134, 136 (Can.). The facility operates under a “medical and scientific purpose[]” exemption from the operation of criminal laws in the Controlled Drugs and Substances Act, enacted in response to the problem of illegal drug use across Canada. See id. at 151. The legality of Canada’s SIF was tested in 2008 when the Minister of Health refused to extend the facility’s exemption. Id. at 143. In Canada v. PHS Community Services Society, the Supreme Court of Canada wrestled with the question of whether the Insite facility was “exempt from the federal criminal laws that prohibit the possession and trafficking of controlled substances, either because Insite is a health facility within the exclusive jurisdiction of the Province, or because the application of the criminal law would violate the [Canadian] Charter [of Rights and Freedoms].” Id. at 143–44.
The court not only held that the Controlled Drugs and Substances Act (CDSA) was constitutional and applied to the activities at Insite, but also that the “Minister of Health’s actions in refusing to exempt Insite from the operation of the CDSA [we]re in violation of the respondents’ s[ection] 7 Charter rights.” Id. at 193. The rights referred to by the court were the right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, s 7 (U.K.). The court added that since there is evidence that Insite “will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety,” the Minister of Health should grant the exception. PHS Cmty. Servs. Soc’y, [2011] S.C.R. at 192. Furthermore, the Minister’s discretion of determining who is granted an exemption “must be exercised in accordance with the Charter.” Id. Ultimately, the court concluded that denying the exemption “would cause deprivations of life and security” to the people who use Insite’s services. See id.
III. What’s Legal in Canada May Not Be Legal in the U.S.
Will it be legal to exempt SIF-type facilities from state drug laws in the United States? Furthermore, even if such facilities were exempted from state drug laws, the facilities would still have to overcome federal drug laws. As noted before, Maryland House Bill 519 includes a provision excluding participants and staff of the facilities from criminal and civil prosecution. H.D. 519, 2017 Leg., 437th Sess. (Md. 2017). Proponents of the facilities argue that this exemption is well within the state’s “police power” to protect and promote the welfare of their citizens. See Sherman et al., supra, at 15. Additionally, states may be able to circumvent federal law by merely authorizing community organizations to open and operate the facilities, similar to how some states authorize marijuana dispensaries. Id. at 17. The House Bill mimics this argument by calling for the operation to be done by “community-based organization[s],” rather than the State of Maryland. H.D. 519 (emphasis added). Community organizations include hospitals, clinics, substance abuse treatment centers, medical offices, “federally qualified health centers,” and mental health facilities. Id.
As no-tolerance drug policies are proven unsuccessful with the continued increase in drug-related deaths, we will likely see the rise of SIFs across the United States. Maryland is not the only state proposing safe injection facilities; California, New York, and Washington are also at the forefront. Sherman et al., supra, at 12–14. In September 2017, California’s “Safe Injection Facility” bill came before the state’s Senate for a vote. Melanie Mason, Bill to Create ‘Safe Injection Sites’ for Drug Users Fails in California Senate, L.A. Times (Sept. 12, 2017, 8:50 PM), http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-drug-injection-1505265354-htmlstory.html. The bill came up only two votes short of passing. Id. This is the closest any bill of this type has come to passing in the United States. See id. Despite the good that these facilities would seemingly bring, they will be met with understandably harsh criticism, including the legality of their operation. Until a “Safe Injection Facility” opens and begins operating in the United States, the legality surrounding their use will remain unclear.
*Elizabeth Barry is a second-year law student at the University of Baltimore School of Law, where she currently serves as a staff editor for the Law Review. She is also a member of the Royal Graham Shannonhouse III Honor Society. During summer of 2017, Elizabeth worked as a law clerk at Coon & Cole, L.L.C and served as a legal intern for the Honorable Nicole Pastore Klein on the District Court for Baltimore City. Currently, she is a law clerk at the Organized Crime Unit in the Maryland Office of the Attorney General.
University of Baltimore Law Review 