Combating the opioid overdose crisis is a cause with broad support.
But a new Rhode Island law establishing a two-year pilot program for safe injection sites has raised concerns, including whether the program can withstand a legal challenge.
Recently passed state legislation allows privately funded operators to set up safe injection sites – subject to municipal approval – where people can use illegal drugs under medical supervision, while also accessing resources such as health screenings, counseling referrals and recovery or addiction-treatment programs.
The pilot program, which would run for two years starting in March 2022, makes Rhode Island the first state to allow illegal drug use in a supervised setting.
Other states and cities have considered similar “harm reduction centers” as a means to combat the skyrocketing rates of drug overdose deaths. But none of the controversial proposals passed in part due to legal objections. Rhode Island’s measure specifies that no one involved in these sites – operators, employers, participants, volunteers, state or municipal employees – can be arrested or charged for violating state laws around possession of controlled substances.
But that also relies on the will of law enforcement to comply, said John L. Calcagni III, a criminal defense attorney in Providence.
“Laws exist on the books, but whether they get enforced or applied is a matter of who’s in charge,” Calcagni said.
‘To leave behind the effectiveness of this model ... would be leaving behind a way to save lives.’
JOSHUA MILLER, state senator, D-Cranston
The new measure calls for an advisory committee, with members including the state attorney general and a current or former law enforcement official, to advise the R.I. Department of Health on developing more-specific rules around the pilot program, including how it interacts with federal, state and local laws, as well as criminal and civil liability protections for employees or participants at the sites.
Calcagni, however, noted several scenarios in which state or even federal authorities could crack down, using their “prosecutorial discretion” to charge the people running or working at these sites with aiding and abetting or conspiracy to violate drug possession laws.
The greatest conflict arises not with state law, but federal law under the U.S. Controlled Substances Act, which bans so-called “crack houses.” A federal appeals court in January cited this law in rejecting plans for a supervised drug injection site in Philadelphia.
That opinion, though divided, sets a precedent that could spell trouble for Rhode Island, said Michael J. Lepizzera Jr., an attorney and principal with Lepizzera and Laprocina, Counselors at Law Ltd. in Warwick.
“If there is a conflict between state and federal law, federal law trumps state law,” Lepizzera said.
But again, the consequences depend in part on political appetite. The lawsuit heard by the federal appeals court was filed by William McSwain when he was U.S. Attorney for the Eastern District of Pennsylvania. McSwain was a Trump appointee who was a vocal opponent to these kinds of supervised injection sites.
Now the Biden administration’s U.S. Attorney General Merrick B. Garland has named combating the opioid overdose crisis a priority, though he stopped short of voicing support for safe injection sites.
State Sen. Joshua Miller, D-Cranston, who sponsored the R.I. Senate legislation, hoped the changing of the guard in Washington, combined with data showing spikes in drug overdoses during the pandemic, would deter federal law enforcement from cracking down on Rhode Island’s program.
“To leave behind the effectiveness of this model by having a legal hurdle on the federal level would be leaving behind a way to save lives,” Miller said.
Not only was Miller unworried by the prospect of lawsuits, but he was also hopeful that the success of Rhode Island’s test program could spur changes in federal law itself. Much like Colorado’s legalization of recreational marijuana prompted former U.S. Deputy Attorney General William Cole to advise against using federal funds on prosecuting or enforcing marijuana laws in states that legalized it, Miller envisioned the U.S. Department of Justice issuing a similar “Cole memo” on safe injection sites.
“We know where and how the law should be changed and how it could allow for exceptions,” Miller said.
From a legal standpoint, Lepizzera worried about the precedent set by federal law that offers exemptions on a case-by-case basis.
“We’re becoming the Wild West,” he said. “You can’t just pass laws for individual states. You have to apply the law uniformly.”
While both Lepizzera and Calcagni named the owners and employees of safe injection sites as those most at risk for federal lawsuits, the state itself could face consequences too, through some sort of federal civil action. It wouldn’t necessarily end in fines or arrests, but rather a declaratory relief action, which would force the pilot program to end, Lepizzera said.
Many of these scenarios are just that – hypothetical situations that are difficult to pin down with certainty until there are more details about how the state program will work.
Half a dozen attorneys and legal organizations, including the Rhode Island Bar Association and the R.I. Office of the Attorney General, declined to comment, with some citing the undefined nature of the proposal as a reason.
Nancy Lavin is a PBN staff writer. Contact her at Lavin@PBN.com.
