Amicus Curiae Brief — Safehouse, Petitioner v. Department of Justice, et al.

Supreme Court briefSep 17, 2021

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No. 21-276

IN THE

Supreme Court of the United States

————

SAFEHOUSE, a Pennsylvania nonprofit corporation,

Petitioner,

U.S. DEPARTMENT OF JUSTICE, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

————

BRIEF FOR AMICI CURIAE CURRENT

AND FORMER PROSECUTORS AND

LAW ENFORCEMENT LEADERS, AND FORMER

ATTORNEYS GENERAL AND DEPARTMENT

OF JUSTICE OFFICIALS AND LEADERS

IN SUPPORT OF PETITIONER’S

PETITION FOR A WRIT OF CERTIORARI

————

MIRIAM KRINSKY

DANIEL SEGAL

ROSEMARY NIDIRY

Counsel of Record

ELIZABETH KOMAR

MATTHEW A. HAMERMESH

DAVID WEISS

HANGLEY ARONCHICK SEGAL

PUDLIN & SCHILLER

ESTELA DIMAS

FAIR AND JUST PROSECUTION, One Logan Square, 27th Floor

Philadelphia, PA 19103

A PROJECT OF THE

(215) 568-6200

TIDES CENTER

1012 Torney Avenue

das@hangley.com

San Francisco, CA 94129

Counsel for Amici Curiae

September 17, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

STATEMENT OF INTEREST OF

AMICI CURIAE ...............................................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. The Opioid Overdose Epidemic Has

Caused Extensive Harm ...........................

A. Criminalization Has Exacerbated, Not

Prevented, The Overdose Epidemic ....

B. Law Enforcement Agencies And Elected

Prosecutors Around The Country Are

Embracing A Harm Reduction Model

Because It Is Effective .........................

II. Public Safety Is Well-Served By Overdose Prevention Sites ...............................

A. Overdose Prevention Sites Save Lives

And Reduce The Adverse Impact Of

Drug Use ..............................................

B. Overdose Prevention Sites Promote

Trust In The Justice System, Thus

Enhancing Public Safety .....................

CONCLUSION ....................................................

APPENDIX

List of Amici Curiae .........................................

TABLE OF AUTHORITIES

CASES

Page(s)

Canada v. PHS Community

Services Society,

[2011] 3 S.C.R. 134 (Can.) ........................ 19, 24

STATUTES

21 U.S.C. § 856 ............................................. 3, 10

Prosecutorial Remedies and Other Tools to

end the Exploitation of Children Today

Act of 2003 (PROTECT Act), Pub. L. No.

108-21, § 608, 117 Stat. 650 (2003) .......... 10-11

R.I. Gen. L. § 23-12-10-1(a) ..........................

OTHER AUTHORITIES

Beckett, Katherine, The Uses and Abuses of

Police Discretion: Toward Harm Reduction Policing, 10 Harv. L. & Pol’y Rev. 77

(2016) .........................................................

Belackova, Vendula & Allison M. Salmon,

Overview of International LiteratureSupervised Injection Facilities & Drug

Consumption Rooms Issue 1 (Aug. 2017) 15, 17

Beletsky, Leo, America’s Favorite Antidote:

Drug-Induced Homicide in the Age of the

Overdose Crisis, 4 Utah Law Review 833

(2019) .........................................................

Beletsky, Leo, et al., The Law (and Politics)

of Safe Injection Facilities in the United

States, 98 Am. J. Pub. Health 231 (2008) ..

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Binswanger, Ingrid A., et al., Release from

Prison-A High Risk of Death for Former

Inmates, 356 New Eng. J. Med. 157

(2007) .........................................................

British Columbia Ministry of Health, Harm

Reduction: A British Columbia Community

Guide (2005) .............................................. 11, 13

Caulkins, Jonathan P., et al., Towards a

harm reduction approach to enforcement,

8 Safer Communities 9 (2009) ............ 11, 13, 14

Centre for Law Enforcement & Public

Health, Police Statement of Support for

Drug Policy Reform (Feb. 2019), https://

cleph.com.au/application/files/4815/4957/

9983/Statement_of_Support_for_Drug_Po

licy_Reform_Feb_2019.pdf .......................

Centers for Disease Control and Prevention, Drug Overdose Deaths (Mar. 3, 2021),

https://www.cdc.gov/drugoverdose/data/

statedeaths.html .......................................

City of Philadelphia, The Mayor’s Task

Force to Combat the Opioid Epidemic in

Philadelphia, Final Report & Recommendations (May 19, 2017) ......................

City of Philadelphia Department of Public

Health, The Opioid Epidemic in Philadelphia: Implementation of the Mayor’s

Task Force Recommendations (March 14,

2018), https://www.phila.gov/media/2018

0606132344/OTF_StatusReport_March2

018.pdf .......................................................

TABLE OF AUTHORITIES—Continued

Page(s)

City of Philadelphia Department of Public

Health, Opioid Misuse and Overdose

Report (Feb. 13, 2020), https://www.phi

la.gov/media/20200226121229/SubstanceAbuse-Data-Report-02.26.20.pdf ..............

Collins, Susan E., et al., LEAD Program

Evaluation: Recidivism Report (March

27, 2015), http://static1.1.sqspcdn.com/st

atic/f/1185392/26121870/1428513375150/

LEAD_EVALUATION_4-7-15.pdf ...........

Darke, Shane, et al., The Ratio of NonFatal to Fatal Heroin Overdose, 98 Addiction 1169 (2003) ........................................

DeBeck, Kora, et al., Injection drug use cessation and use of North America’s first

medically supervised safer injecting facility, 113 Drug & Alcohol Dependence, nos.

2-3, Jan. 2011 ............................................

Drug Enforcement Administration, The

Opioid Threat in Pennsylvania, Joint

Intelligence Report (Sept. 2018) ...............

Drug Policy Alliance, The Drug War, Mass

Incarceration and Race (Jan. 2018),

http://www.drugpolicy.org/sites/default/

files/drug-war-mass-incarceration-andrace_01_18_0.pdf.......................................

TABLE OF AUTHORITIES—Continued

Page(s)

Eichel,

Larry

Meagan

Pharis,

Philadelphia’s Drug Overdose Death

Rate Among Highest in Nation, The Pew

Charitable Trusts (Feb. 15, 2018), https://

www.pewtrusts.org/en/research-and-ana

lysis/articles/2018/02/15/philadelphias-d

rug-overdose-death-rate-among-highestin-nation ....................................................

Fairbairn, Nadia, et al., Seeking refuge from

violence in street-based drug scenes:

Women’s experiences in North America’s

first supervised injection facility, 67 Soc.

Sci. & Med. 817 (2008) ..............................

Farley, M.D., Thomas, Overdose prevention

sites can help cities like Philadelphia save

lives, Stat News (Apr. 5, 2019), https://

www.statnews.com/2019/04/05/overdoseprevention-sites-save-lives .......................

5-6

Federal Bureau of Investigation, 2017 Crime

in the United States (2017), https://ucr.

fbi.gov/crime-in-the-u.s/2017/crime-in-theu.s.-2017/tables/table-29 ............................

Feldman, Nina, Philadelphia Department

of Prisons will begin offering buprenorphine to male inmates again, WHYY

(Apr. 1, 2019), https://whyy.org/articles/

philadelphia-department-of-prisons-willbegin-offering-buprenorphine-to-male-in

mates-again/ ..............................................

TABLE OF AUTHORITIES—Continued

Page(s)

Fellner, Jamie, Race, Drugs, and Law

Enforce-ment in the United States, 20

Stan. Law & Pol. Rev. 257 (2009),

https://www-cdn.law.stanford.edu/wp-co

ntent/uploads/2018/03/fe llner.pdf ...........

Freeman, Karen, et al., The impact of the

Sydney Medically Supervised Injecting

Centre (MSIC) on crime, 24 Drug &

Alcohol Rev. 173 (2005) ............................

Friedman, Samuel R., et al., Relationships

of deterrence and law enforcement to

drug-related harms among drug injectors

in US metropolitan areas, 20 AIDS 93

(2006) .........................................................

Goldstein, Leila, Montgomery County Overdoses Up 50 Percent Over Last Year,

WYSO.org (Apr. 16, 2020), https://www.

wyso.org/post/montgomery-county-overd

oses-50-percent-over-last-year .................

Harm Reduction Coalition, Principles of

Harm Reduction, https://harmreduction.

org/abou t-us/principles-of-harm-reduction

(last visited May 4, 2020) .........................

Harm Reduction International, What is

harm reduction?, https://www.hri.global/

what-is-harm-reduction ............................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Hedegaard, M.D., Holly, et al., Drug Overdose Deaths in the United States, 1999–

2017, Centers for Disease Control and

Prevention, NCHS Data Brief No. 329

(Nov. 2018), https://www.cdc.gov/nchs/

products/databriefs/ db329.htm ...............

Huey, Laura, What is Known About the

Impacts of Supervised Injection Sites on

Community Safety and Wellbeing? A

Systematic Review, 48 Sociology Publications (2019) ................................................

Johnson, Sterling & Leo Beletsky, The Role

of Overdose Prevention Sites in Coronavirus Response, Justice Collaborative

Inst. (May 7, 2020), https://tjcinstitute.

com/wp-content/uploads/2020/05/20.05_

Safe-Injection-Sites-1.pdf .........................

Kilmer, Beau, et al., Considering HeroinAssisted Treatment and Supervised Drug

Consumption Sites in the United States,

RAND Corporation (2018), www.rand.

org/t/RR2693 ............................................. 4, 19

Kirkland, Talia, Overdose Deaths Skyrocket

in Pennsylvania During COVID-19 Pandemic, Local21News.com (Apr. 22, 2020),

https://local21news.com/news/local/overd

ose-deaths-skyrocket-in-pennsylvania-du

ring-covid-19-pandemic ............................

LEAD Bureau, www.leadbureau.org (last

visited May 8, 2020) ..................................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Marshall, Brandon D.L., et al., Reduction

in Overdose Mortality After the Opening

of North America’s First Medically Supervised Safer Injecting Facility: A Retrospective Population-Based Study, 377

The Lancet 1429 (2011) ............................ 15, 20

Massachusetts Medical Society, Report of

the Task Force on Opioid Therapy and

Physician Communication: Establishment of a Pilot Medically Supervised

Injection Facility in Massachusetts (Apr.

2017) ..........................................................

McElrath, Karen, et al., Crime Victimization Among Injection Drug Users, 27 J. of

Drug Issues 771 (1997) .............................

Milloy, M.-J. S., et al., Estimated Drug

Overdose Deaths Averted by North

America’s First Medically-Supervised

Safer Injection Facility, 3(10) PLoS One 3

e3351 (2008) ..............................................

MSIC (Medically Supervised Injection Centre) Evaluation Committee, Final Report

of the Evaluation of the Sydney Medically

Supervised Injection Centre (2003),

https://www.drugsandalcohol.ie/5706/1/

MSIC_final_eva luation_report.pdf ...........

Myer, Andrew J. & Linsey Belisle, Highs

and Lows: An Interrupted Time-Series

Evaluation of the Impact of North

America’s Only Supervised Injection Facility on Crime, 48 J. Drug Issues 36 (2017) ..

TABLE OF AUTHORITIES—Continued

Page(s)

Petrar, Steven, et al., Injection Drug Users’

Perceptions Regarding Use of a Medically

Supervised Safer Injecting Facility, 32

Addictive Behaviors, 1088 (2007) ............. 15, 18

The Pew Charitable Trusts, Collateral

Costs: Incarceration’s Effect on Economic

Mobility (2010), https://www.pewtrusts.

org/~/media/legacy/uploadedfiles/pcs_asse

ts/2010/collateralcosts1pdf.pdf .................

The Pew Charitable Trusts, More Imprisonment Does Not Reduce State Drug

Problems (March 2018), https://www.pew

trusts.org/-/media/assets/2018/03/pspp_

more_imprisonment_does_not_reduce_

state_drug_problems.pdf .......................... 8, 14

Potier, Chloe, et al., Supervised Injection

Services: What Has Been Demonstrated?

A Systematic Literature Review, 145

Drug & Alcohol Dependence 48 (2014) ....

Rothwell, Jonathan, Drug Offenders in

American Prisons: The Critical Distinction Between Stock and Flow, Brookings

Institution (Nov. 25, 2015), http://www.

brookings.edu/blogs/social-mobility-mem

os/posts/2015/11/25-drug-offenders-stockflow-prisons-rothwell ................................

Salmon, A.M., et al., The Impact of a Supervised Injecting Facility on Ambulance

Call-Outs in Sydney, Australia, 105

Addiction 676 (2010) .................................

TABLE OF AUTHORITIES—Continued

Page(s)

Stauffer, Brian, Every 25 Seconds: The

Human Toll of Criminalizing Drug Use

in the United States, Human Rights

Watch (Oct. 12, 2016), https://www.hrw.

org/report/2016/10/12/every-25-seconds/

human-toll-criminalizing-drug-use-unit

ed-states ....................................................

7-8

Tracy, Melissa, et al., Circumstances of Witnessed Drug Overdose in New York City:

Implications for Intervention, 79 Drug &

Alcohol Dependence 181 (2005) ................

Tyndall, Mark W., et al., Attendance, Drug

Use Patterns, and Referrals Made from

North America’s First Supervised Injection Facility, 83 Drug & Alcohol Dependence193 (2006) ..........................................

Van Beek, Ingrid, The Sydney Medically

Supervised Injecting Centre: Reducing

Harm Associated with Heroin Overdose,

14 Critical Public Health 391 (2003)........

Vancouver Coastal Health, Insite User

Statistics, http://www.vch.ca/public-health/

harm-reduction/supervised-consumptionsites/insite-user-statistics (last updated

July 2019) ..................................................

TABLE OF AUTHORITIES—Continued

Page(s)

White House Statement, August 2, 2021,

ONDCP Funds Research to Support

Evidence Based State Drug Policies and

Laws, https://whitehouse.gov/ondcp/brief

ing-room/2021/08/02/ondcp-funds-researchto-support-evidence-based-state-drug-po

licies-and-laws/..........................................

White House Statement, June 29, 2021,

Biden-Harris Administration Expands

Treatment to Underserved Communities

with Mobile Methadone Van Ride,

https://whitehouse.gov/ondcp/briefing-ro

om/2021/06/29/biden-harris-administrat

ion-expands-treatment-to-underservedcommunities-with-mobile-methadonevan-rule-2021/ ...........................................

Wood, Evan, et al., Changes in Public Order

After the Opening of a Medically Supervised Safer Injecting Facility for Illicit

Injection Drug Users, 171 Canadian Med.

Assoc. J. 731 (2004)...................................

Wood, Evan, et al., Impact of a Medically

Supervised Safer Injecting Facility on

Drug Dealing and Other Drug-Related

Crime, 1 Substance Abuse Treatment,

Prevention, and Policy 1 (2006)................

Wood, Evan, et al., Rate of Detoxification

Service Use and Its Impact Among a

Cohort of Supervised Injecting Facility

Users, 102 Addiction 916 (2007) ...............

STATEMENT OF INTEREST OF

AMICI CURIAE1

Amici are 80 current or former prosecutors and law

enforcement officials and former attorneys general

and U.S. Department of Justice (“DOJ”) leaders with

expertise in prosecution, policing, and cooperative

federal-state law enforcement activities.2

Amici

understand the challenges of preserving public safety

and health and combating the epidemic of opioidrelated deaths. Amici currently serve or have served

in 32 states, including in communities struggling to

stem the tide of fatal overdoses caused by substance

use disorder, limited access to effective treatment, and

a toxic supply stream flooded with powerful synthetic

opioids. These problems remain acute despite law

enforcement’s best efforts.

Many of amici’s communities have experienced

unprecedented levels of fatal opioid overdoses. The

criminal justice and law enforcement agencies that

amici lead or have led strive daily to respond to opioidrelated overdoses, while also combating hazards posed

by public injection. Discarded needles pose a safety

risk in parks and on streets. The rapid spread of

blood-borne illnesses has been exacerbated by the

needle sharing among intravenous drug users without

access to clean syringes, thus endangering people

whether or not they use drugs. Public injection has

made residents feel unsafe in their own communities.

Counsel of record received timely notice of the intent to file

this brief, and all parties have consented to this filing. No counsel

for a party authored this brief in whole or in part, and no one

other than amici’s counsel made any monetary contribution

toward the brief’s preparation or submission.

A full list of amici is in the attached Appendix.

And business owners and residents must contend with

the daily prospect of finding people unconscious from

an overdose in public places. Punitive responses to

these concerns further stigmatize and marginalize

people who use drugs, thereby deterring them from

accessing treatment and support. Amici understand

the urgency of finding practical solutions to this public

health crisis and believe that communities can only

manage the problems posed by opioid abuse by partnering with public health experts.

Amici have an interest in this litigation because

overdose prevention sites (OPSs)3 are among the harm

reduction and public health interventions that have

proven effective in preventing fatal overdoses and

diverting people from unnecessary and counterproductive interactions with the justice system. Amici, many

of whom are currently or were previously responsible

for enforcing the nation’s drug laws, also believe that

the Controlled Substances Act cannot be construed to

prohibit operation of a facility designed to address the

most acute aspects of this public health emergency.

These issues are particularly concerning now, with

an ongoing pandemic and fractured relations between

law enforcement and communities. Failing to address

the loss of life resulting from drug overdoses—and

criminalizing a community-based public health organization working to save lives—will further erode trust

OPSs are also sometimes referred to as safe consumption

sites, supervised consumption facilities or medically supervised

consumption sites. They provide people using drugs with a

sanitary environment in which to inject drugs under supervision.

Drugs are provided by the participant, not the facility, and OPS

staff observe injections and are available to respond immediately

to an overdose. Importantly, OPS staff do not perform any

injections.

in the justice system. If there were ever a time to

demonstrate that our government values the dignity

of human life, that time is now.

Amici respectfully submit that the Court should

grant certiorari to review the Third Circuit’s determination that 21 U.S.C. § 856 prohibits public health

organizations, such as Petitioner Safehouse, from establishing an overdose prevention site that will prevent

fatalities by providing immediate medical care to

people experiencing drug-related overdoses.

SUMMARY OF ARGUMENT

Petitioner seeks to open a facility specifically

designed to address the public health emergency posed

by the epidemic of opioid-related overdoses. Like a

syringe exchange, the contemplated OPS would provide people who inject drugs with sterile equipment to

minimize the spread of illness. And like any emergency medical care provider, the contemplated OPS

would also administer oxygen or the overdose “antidote”

naloxone to reverse overdoses. Rather than pushing

participants onto the streets to inject in an unhygienic

and unmonitored place, Safehouse would provide space

for supervised consumption and observation. Supervision

ensures that individuals who could otherwise be at

high risk of death if they inject unsupervised or alone

are within immediate reach of lifesaving medical

care—including the administration of oxygen, CPR, or

naloxone—in the event of an overdose. Safehouse

would also help injection drug users, who are often

medically vulnerable, stabilize their lives and improve

their health. Safehouse would offer services, including

on-site initiation of medication-assisted treatment for

substance use disorder, basic medical services, wound

care, physical and behavioral health assessments, and

referrals to social services. See Pet. App. 73a-74a.

While no OPSs are operating in the United States,

more than 110 currently operate in at least 11 other

countries, with many more expected.4 Not one of

these OPSs has ever reported a fatal overdose inside

its facility.5 The supervision available in an OPS is

directly responsible for saving lives: for example, an

OPS facility in Vancouver, Canada had 189,837 visits

from 5,436 individuals in 2018, and the OPS staff

administered 1,466 overdose interventions and 3,725

other clinical treatment interventions, such as wound

care and pregnancy tests.6

Two months ago, Rhode Island became the first

state to statutorily recognize the enormous potential

value of OPSs. On July 6, 2021, Governor Dan McKee

signed into law a statute authorizing a two-year pilot

program “to prevent drug overdoses through the establishment of [OPSs].” R.I. Gen. L. § 23-12-10-1(a).

As law enforcement and criminal justice leaders,

amici’s objective is to maintain public safety; saving

lives and promoting health is as central to that

mission as preventing and prosecuting crime. Local

governments must have the leeway to address the

opioid crisis through proven methods that minimize

the need for confrontational encounters between police

and citizens, especially in this time of pandemic and

See Beau Kilmer et al., Considering Heroin-Assisted

Treatment and Supervised Drug Consumption Sites in the United

States, RAND Corporation 30-31 (2018), www.rand.org/t/RR2693

[hereinafter “RAND Report”].

See, e.g., Vancouver Coastal Health, Insite User Statistics,

http://www.vch.ca/public-health/harm-reduction/supervised-cons

umption-sites/insite-user-statistics (last updated July 2019) (“[M]ore

than 3.6 million [clients have] inject[ed] illicit drugs under supervision by nurses at Insite since 2003.”).

Id.

tension between communities and law enforcement.

Amici therefore urge the Court to consider the wellreasoned opinions of the district court; of Judge Roth,

who wrote in dissent in the Third Circuit; and of Judge

McKee, who wrote in dissent from the Third Circuit’s

denial of the petition for rehearing; and grant review.

ARGUMENT

I. The Opioid Overdose Epidemic Has Caused

Extensive Harm

Nationwide, 70,630 people died from drug-related

overdoses in 2019.7 Since 1999, the drug overdose

death rate in the United States has increased nearly

four-fold.8 Existing drug policy strategies are insufficient to respond to a crisis of this scale.

Philadelphia, like many other parts of the United

States, contends daily with the epidemic of opioidrelated deaths. “In Philadelphia alone, on an average

day the city morgue accepts three or more overdose

victims, making the city’s overdose death rate about

triple its homicide rate.”9 Philadelphia County’s 2016

Centers for Disease Control and Prevention, Drug Overdose

Deaths (Mar. 3, 2021), https://www.cdc.gov/drugoverdose/data/

statedeaths.html. 2019 represents the latest CDC statistics

available. These figures describe only fatal drug overdoses; the

number of overall overdoses is certainly much higher. See Shane

Darke et al., The Ratio of Non-Fatal to Fatal Heroin Overdose, 98

Addiction 1169, 1170 (2003) (estimating that there are from 20 to

30 non-fatal opioid-related overdoses events for every fatality).

Holly Hedegaard, M.D. et al., Drug Overdose Deaths in

the United States, 1999–2017, Centers for Disease Control

and Prevention, NCHS Data Brief No. 329 (Nov. 2018),

https://www.cdc.gov/nchs/products/databriefs/db329.htm.

Thomas Farley, M.D., Overdose prevention sites can help

cities like Philadelphia save lives, STAT News (Apr. 5, 2019),

drug overdose death rate was second among the 44

U.S. counties with over one million residents, and

Pennsylvania’s drug overdose death rate increased

16.9 percent from 2016 to 2017.10

Notably, the coronavirus pandemic has significantly

exacerbated the overdose crisis. Fatal opioid overdoses have spiked in the wake of pandemic-related

isolation, trauma and the inability to access treatment. For instance, confirmed and suspected opioid

deaths in Pennsylvania’s York County were three

times higher in March 2020 than January 2020.11

Ohio’s Montgomery County, which led the nation

in per capita overdose deaths in 2017, saw drug

overdoses increase through April 2020 by more than

50 percent compared to the same period in 2019.12

The devastating consequences of this crisis go

beyond fatalities. Although the overall number of new

HIV cases in Philadelphia has fallen over the last few

years, the number of cases among those who inject

drugs has substantially increased. The number of new

https://www.statnews.com/2019/04/05/overdose-prevention-sitessave-lives.

Larry Eichel & Meagan Pharis, Philadelphia’s Drug

Overdose Death Rate Among Highest in Nation, The Pew

Charitable Trusts (Feb. 15, 2018), https://www.pewtrusts.org/

en/research-and-analysis/articles/2018/02/15/philadelphias-drugoverdose-death-rate-among-highest-in-nation.

See Talia Kirkland, Overdose Deaths Skyrocket in

Pennsylvania During COVID-19 Pandemic, Local21News.com

(Apr. 22, 2020), https://local21news.com/news/local/overdosedeaths-skyrocket-in-pennsylvania-during-covid-19-pandemic.

See Leila Goldstein, Montgomery County Overdoses Up 50

Percent Over Last Year, WYSO.org (Apr. 16, 2020), https://www.

wyso.org/post/montgomery-county-overdoses-50-percent-over-lastyear.

Hepatitis C cases, most of which result from intravenous drug use, has also increased dramatically. The

proportion of emergency room visits related to drug

use has doubled since 2007.13 And the opioid crisis

costs Pennsylvania nearly $56 billion annually.14 The

severity of this crisis demands solutions of equal

magnitude.

A. Criminalization Has Exacerbated, Not

Prevented, The Overdose Epidemic

As current and former criminal justice leaders,

amici have seen first-hand how the classic “war on

drugs” approach to drug control—with its almost exclusive focus on aggressive criminal law enforcement—

has exacerbated the overdose epidemic. This experience

confirms that no jurisdiction can arrest its way out of

this public health problem. Fatal overdoses are a

symptom of substance use disorder, a medical condition requiring a medical response.

Amici’s experience comports with the available

evidence. Between 1981 and 2006, the number of drug

arrests in the United States quadrupled to nearly two

million per year, disproportionately affecting people

and communities of color.15 An estimated 74 percent

City of Phila. Dep’t of Pub. Health, The Opioid Epidemic in

Philadelphia: Implementation of the Mayor’s Task Force

Recommendations, 9 (March 14, 2018), https://www.phila.gov/

media/20180606132344/OTF_StatusReport_March2018.pdf.

Drug Enforcement Admin., The Opioid Threat in

Pennsylvania, Joint Intelligence Report 45 (Sept. 2018) (estimated economic cost to Pennsylvania of opioid use disorders in

2016).

Katherine Beckett, The Uses and Abuses of Police Discretion:

Toward Harm Reduction Policing, 10 Harv. L. & Pol’y Rev. 77, 81

(2016); see also Brian Stauffer, Every 25 Seconds: The Human

Toll of Criminalizing Drug Use in the United States, Human

of the people processed at Philadelphia prisons test

positive for drug use upon admission to jail, and

“[d]rug crimes have been the predominant reason for

new admissions into state and federal prisons in

recent decades.”16

These massive increases in drug arrests and drugrelated incarcerations have not reduced drug consumption. The evidence shows that “higher rates of

drug imprisonment do not translate into lower rates of

drug use, arrests, or overdose deaths.”17 When a

person with substance use disorder is incarcerated,

the weeks following release pose a dramatically elevated risk of fatal overdose.18 Mass incarceration for

drug offenses also has devastating consequences for

Rights Watch (Oct. 12, 2016), https://www.hrw.org/report/

2016/10/12/every-25-seconds/human-toll-criminalizing-drug-useunited-states (“In every state for which we have sufficient data,

Black adults were arrested for drug possession at higher rates

than white adults[.]”).

City of Phila., The Mayor’s Task Force to Combat the Opioid

Epidemic in Philadelphia, Final Report & Recommendations, 11

(May 19, 2017) [hereinafter “Mayor’s Task Force Report”];

Jonathan Rothwell, Drug Offenders in American Prisons: The

Critical Distinction Between Stock and Flow, Brookings

Institution (Nov. 25, 2015), http://www.brookings.edu/blogs/

social-mobility-memos/posts/2015/11/25-drug-offenders-stock-flowprisons-rothwell.

The Pew Charitable Trusts, More Imprisonment Does Not

Reduce State Drug Problems, 6 (March 2018), https://www.

pewtrusts.org/-/media/assets/2018/03/pspp_more_imprisonment_

does_not_reduce_state_drug_problems.pdf.

See Ingrid A. Binswanger et al., Release from Prison-A High

Risk of Death for Former Inmates, 356 New Eng. J. Med. 157, 165

(2007).

those incarcerated, their families, and their communities.19

A strict-enforcement approach also stigmatizes

people who use drugs in ways that increase health

risks, drive problems underground, and magnify social

harms. Fear of arrest and incarceration does not

reliably deter drug use, but it does deter intravenous

drug users from accessing healthcare, harm reduction

services, and treatment that could save their lives and

significantly reduce the social costs of their drug use.20

Fear and shame force people using drugs to turn to

isolated and dangerous spaces—such as alleys and

abandoned houses—where hygienic injection is impossible. These environments increase transmission of

blood-borne diseases like HIV, hepatitis C, and septicemia.21 Isolation increases the risk of fatal overdose:

people injecting alone are unlikely to be discovered

and to receive the overdose “antidote” naloxone within

the critical minutes before a drug overdose can kill.

Given the stark evidence that criminalizing drug use

only increases its harms, the prior Administration’s

The Pew Charitable Trusts, Collateral Costs: Incarceration's

Effect on Economic Mobility, 3-5 (2010), https://www.pewtru

sts.org/~/media/legacy/uploadedfiles/pcs_assets/2010/collateralco

sts1pdf.pdf; Drug Pol’y Alliance, The Drug War, Mass Incarceration and Race, 2 (Jan. 2018), http://www.drugpolicy.org/sites/

default/files/drug-war-mass-incarceration-and-race_01_18_0.pdf.

Leo Beletsky et al., The Law (and Politics) of Safe Injection

Facilities in the United States, 98 Am. J. Pub. Health 231, 231

(2008).

Id.; see also Samuel R. Friedman et al., Relationships of

deterrence and law enforcement to drug-related harms among

drug injectors in US metropolitan areas, 20 AIDS 93, 97 (2006)

(strict criminalization is associated with higher incidence of HIV

among injected drug users).

attempt to extend the Controlled Substances Act to

block a public health response to the overdose crisis is

perplexing.22 Amici, who have served in federal agencies that enforce the Controlled Substances Act and

state agencies with their own (often similar or even

identical) criminal drug laws, have never seen these

laws used to prohibit public health and harm reduction programs such as syringe exchange facilities,

naloxone provision services, or OPSs. Substance use

disorder is, first and foremost, a medical condition

requiring medical treatment. Criminal sanctions by

themselves do not address—and often exacerbate—

the root causes of substance use disorder. Section 856

was enacted to target the manufacturing of crack

cocaine in “crack houses” and amended to address

ecstasy use at raves. See Prosecutorial Remedies and

Other Tools to end the Exploitation of Children Today

The current Administration is appropriately viewing the

opioid crisis through a public health lens. It has committed to

“expanding access to evidence-based prevention, treatment and

harm reduction.” White House Statement, August 2, 2021,

ONDCP Funds Research to Support Evidence Based State Drug

Policies and Laws. https://whitehouse.gov/ondcp/briefing-room/

2021/08/02/ondcp-funds-research-to-support-evidence-based-statedrug-policies-and-laws/. And the Drug Enforcement Administration explicitly recognized that “we cannot arrest our way out of

this devastating [opioid epidemic] problem.” White House

Statement, June 29, 2021, Biden-Harris Administration Expands

Treatment to Underserved Communities with Mobile Methadone

Van Ride. https://whitehouse.gov/ondcp/briefing-room/2021/06/

29/biden-harris-administration-expands-treatment-to-underserv

ed-communities-with-mobile-methadone-van-rule-2021/.

Against this backdrop, it is unfortunate that the Government

has chosen to waive its response to the instant Petition. The

Court would undoubtedly have benefited from the views of the

new Administration and many state and local leaders are looking

for federal guidance on this issue.

Act of 2003 (PROTECT Act), Pub. L. No. 108-21, § 608,

117 Stat. 650, 691 (2003). It was never intended to

target public health facilities like OPSs.

B. Law Enforcement Agencies And Elected

Prosecutors Around The Country Are

Embracing A Harm Reduction Model

Because It Is Effective

OPSs fit comfortably within an approach to the

opioid epidemic known as “harm reduction,” which has

proven more effective than simply arresting and incarcerating people struggling with substance use disorder.

Harm reduction describes an approach to addressing

drug use generally, and the opioid crisis in particular,

by “targeting directly drug-related harms rather

than drug use itself.”23 Harm reduction encompasses

numerous practices, including “drug consumption rooms,

needle and syringe program[s], non-abstinence-based

housing and employment initiatives, drug checking,

overdose prevention and reversal, psychosocial support,

and the provision of information on safer drug use.”24

Extensive evidence demonstrates that these practices

are cost-effective and have a positive impact on

individual and community health.25 Central to harm

reduction is the principle that institutions must

Jonathan P. Caulkins et al., Towards a harm reduction

approach to enforcement, 8 Safer Communities 9, 9 (2009);

see also Harm Reduction International, What is harm reduction?, https://www.hri.global/what-is-harm-reduction (last visited

September 2, 2021).

Harm Reduction International, supra note 23.

Id.; British Columbia Ministry of Health, Harm Reduction:

A British Columbia Community Guide 6-12 (2005).

structure their services “to meet drug users ‘where

they’re at.’”26

Harm reduction has been accepted as a proven

response to substance use disorder globally, and numerous U.S. law enforcement organizations have similarly

recognized that harm reduction strategies address substance use disorder and the overdose epidemic more

effectively than arrests and prosecution. For example,

52 jurisdictions have already implemented a Law

Enforcement Assisted Diversion (“LEAD”) model,

which enlists police and prosecutors to work with community groups and social service agencies to provide

harm reduction interventions instead of a punitive,

criminal justice response.27

LEAD programs are rapidly spreading: 44 jurisdictions are currently considering, developing, or launching

LEAD programs.28 This is a testament both to the

benefits accruing to law enforcement agencies and the

communities they serve and to the increased trust and

cooperation born of incorporating public health and

harm reduction strategies into responses to the opioid

crisis. Amici who have introduced harm reduction

programs in their own jurisdictions have seen how

such strategies lead to more positive interactions

between law enforcement and vulnerable community

members. This mutual understanding builds relationships that can lead to greater cooperation and better

Harm Reduction Coalition, Principles of Harm Reduction,

https://harmreduction.org/about-us/principles-of-harm-reduction

(last visited September 2, 2021).

LEAD Bureau, www.leadbureau.org (last visited September

2, 2021).

LEAD Bureau, supra note 27.

outcomes during police interactions with the people

they serve, thereby enhancing public safety.

Particularly when employed within a comprehensive

public health framework, harm reduction techniques can

successfully address some of the most significant

limitations of the traditional approach to the opioid

crisis. One report concluded:

Harm reduction saves lives and improves

quality of life by allowing drug users to

remain integrated in society. The alienation

and marginalization of people who use drugs

often compound the reasons why they engage

in unsafe drug use. Harm reduction also

reduces health care costs by reducing drugrelated overdose, disease transmission, injury

and illness, as well as hospital utilization.

Harm reduction benefits the community

through substantial reductions in open drug

use, discarded drug paraphernalia, drugrelated crime, and associated health, enforcement and criminal justice costs. It lessens the

negative impact of an open drug scene on local

business and improves the climate for tourism and economic development.29

Criminal justice leaders should not take a back seat

in implementing harm reduction strategies.30 Police,

prosecutors, and others involved in the criminal justice system have adopted several harm reduction

strategies, including referring users to treatment or

British Columbia Ministry of Health, supra note 25, at 4;

see also id. at 7-12 (identifying harm-reduction strategies for

addressing opioid abuse).

Caulkins, supra note 23, at 9.

social service agencies before arrest or charging,

obtaining familiarity with and implementing overdose

remediation techniques and medications such as naloxone, and warning users when a shipment of tainted

drugs hits a city’s streets.31 These duties are integral

to the oath officers take to protect and serve their

communities and to the aim of prosecutors to serve the

public and promote the community’s wellbeing.

OPSs would fill a critical need in the harm reduction

efforts of cities like Philadelphia: they prevent

overdose fatalities among some of the most at-risk

groups. While 2,333 people died from overdoses in

Philadelphia in 2017 and 2018, not one person has

died of an overdose within an OPS anywhere in the

world.32 As described below, OPSs are evidence-based,

public health focused facilities that can help address

the opioid crisis in a manner consistent with smart

and effective criminal justice policies.

II. Public Safety Is Well-Served By Overdose

Prevention Sites

Introducing an OPS into a community ravaged by

opioid deaths permits law enforcement agencies to use

resources more effectively and promotes trust and

cooperation between law enforcement agencies and a

population subject to a disproportionate number of

police interactions. Empirical evidence also shows

that OPSs can reduce crime and public nuisances

related to injection drug use. Accordingly, OPSs are

valuable tools for protecting public safety when

See id. at 14; The Pew Charitable Trusts, supra note 17, at

6-7.

See City of Phila. Dep’t of Pub. Health, Opioid Misuse and

Overdose Report (Feb. 13, 2020), https://www.phila.gov/media/

20200226121229/Substance-Abuse-Data-Report-02.26.20.pdf.

employed as part of a multifaceted solution to the

overdose epidemic—particularly at this critical moment.

A. Overdose Prevention Sites Save Lives

And Reduce The Adverse Impact Of

Drug Use

The primary objective of OPSs is to save lives, and

they have been proven to do so. Multiple studies in

Vancouver, British Columbia and Sydney, Australia

have demonstrated that overdose-related morbidity

and mortality are reduced when people inject drugs at

an OPS rather than on the street.33 In Vancouver, a

statistical analysis of the OPS known as Insite

estimated that the facility prevented an average of 1.9

to 11.7 deaths annually over four years. This would

have accounted for between 6 percent and 37 percent

of the overdose fatalities in the neighborhood during

that period.34 Also, compared to the period before

Insite’s opening, Vancouver experienced 35 percent

fewer overdoses in the area within 500 meters of the

facility.35 Similarly, during its first eighteen months,

Sydney’s Medically Supervised Injecting Centre

See, e.g., Vendula Belackova & Allison M. Salmon, Overview

of International Literature-Supervised Injection Facilities & Drug

Consumption Rooms Issue 1, 8-18 (Aug. 2017).

M-J. S. Milloy, et al., Estimated Drug Overdose Deaths

Averted by North America’s First Medically-Supervised Safer

Injection Facility, 3 PLoS One e3351, 4 (2008).

Brandon D.L. Marshall et al., Reduction in Overdose

Mortality After the Opening of North America’s First Medically

Supervised Safer Injecting Facility: A Retrospective PopulationBased Study, 377 The Lancet 1429, 1433 (2011); Steven Petrar,

et al., Injection Drug Users’ Perceptions Regarding Use of a

Medically Supervised Safer Injecting Facility, 32 Addictive

Behaviors 1088, 1092 (2007).

(“MSIC”) managed 409 overdoses without a single

death.36

By reducing fatal overdoses in the community and

moving some of the highest-risk injection drug use

from streets and alleys to a facility with medical

supervision, OPSs can reduce the burden on law

enforcement resources caused by the opioid epidemic.

Overdoses, whether fatal or not, require responses

from police, EMS, and other first responders; these

increasingly common overdose calls prevent and

distract personnel from addressing other public safety

concerns.

OPSs have been shown to substantially reduce these

burdens on law enforcement and first responders by

providing medically trained staff within a designated

facility to respond to overdoses. For instance, the

presence of an OPS in Sydney, Australia significantly

reduced the burden on ambulance services in the site’s

vicinity.37 By diverting overdoses from the street to a

controlled, medically supervised facility, and by allowing for more effective early responses to overdoses,

OPSs advance public safety and allow law enforcement agencies to dedicate their resources to other

objectives.

Policing people who publicly inject drugs poses

burdens beyond the high cost of the immediate

response to an overdose. People who inject publicly

account for a disproportionate share of police

Ingrid Van Beek, The Sydney Medically Supervised Injecting

Centre: Reducing Harm Associated with Heroin Overdose 14

Critical Public Health 391, 395 (2003).

See A.M. Salmon, et al., The Impact of a Supervised Injecting

Facility on Ambulance Call-Outs in Sydney, Australia, 105

Addiction 676, 678 (2010).

interactions and criminal prosecutions.38 The result

of an arrest-only response is often that medical

treatment occurs within an incarcerated setting (if at

all). Currently, as in many American communities,

Philadelphia’s largest provider of medication-assisted

drug treatment is its jail.39 By encouraging and

increasing substance use treatment services in the

community, OPSs help stabilize patients’ lives, thereby

reducing future negative interactions with law enforcement and first responders, allowing law enforcement

to allocate resources elsewhere, and creating a more

positive self-help pathway.

Multiple studies have also shown significant additional public health benefits associated with OPSs.

These facilities have reduced harmful behaviors, reduced

blood-borne virus transmission, reduced infections,

increased access to substance use disorder treatment,

and connected users to other critical healthcare and

social services.40 For example, a survey of 1,082 people

found that, after visiting the Vancouver OPS, 71

percent indicated they had engaged in less outdoor

injecting, 49 percent reported cleaning the injection

See, e.g., Federal Bureau of Investigation, 2017 Crime in the

United States Table 29, (2017), https://ucr.fbi.gov/crime-in-theu.s/2017/crime-in-the-u.s.-2017/tables/table-29 (documenting that

the highest number of arrests in the United States in 2017 were

for drug abuse violations).

Nina Feldman, Philadelphia Department of Prisons will

begin offering buprenorphine to male inmates again, WHYY (Apr.

1, 2019), https://whyy.org/articles/philadelphia-department-ofprisons-will-begin-offering-buprenorphine-to-male-inmatesagain/.

See, e.g., Belackova, supra note 33, at 8; Chloe Potier et al.,

Supervised Injection Services: What Has Been Demonstrated? A

Systematic Literature Review, 145 Drug & Alcohol Dependence

48, 50-61 (2014).

site more frequently, and 37 percent reported reusing

syringes less often.41 These benefits are experienced

by individuals with the greatest need for support:

people who are “homeless, unsure of how to access

clean drug equipment such as needles, ha[ve] overdosed

in the past, and tend[] to inject in public spaces.”42

OPSs also serve as critical lifelines to health and

social services. One study associated the Vancouver

OPS with a 30 percent increase in the use of detoxification services compared to the year before it opened.43

Another found that regular use of the Vancouver OPS

and contact with its counselors was “associated with

entry into addiction treatment, and enrollment in

addiction treatment programs [which were] positively

associated with injection cessation.”44 OPSs are also a

conduit to other critical services such as housing,

social work, and mental health treatment.45

OPS opponents sometimes contend that opening an

OPS will create a so-called “honeypot effect,” drawing

drug dealers and attendant crime and public nuisance

See Petrar, supra note 35, at 1091.

Massachusetts Medical Society, Report of the Task Force on

Opioid Therapy and Physician Communication: Establishment of

a Pilot Medically Supervised Injection Facility in Massachusetts,

12 (Apr. 2017).

See, e.g., Evan Wood et al., Rate of Detoxification Service Use

and Its Impact Among a Cohort of Supervised Injecting Facility

Users, 102 Addiction 916, 918 (2007).

Kora DeBeck et al., Injection drug use cessation and use of

North America’s first medically supervised safer injecting facility,

113 Drug & Alcohol Dependence, 172, 174-75 (2011).

See, e.g., Mark W. Tyndall, et al., Attendance, Drug Use

Patterns, and Referrals Made from North America’s First

Supervised Injection Facility, 83 Drug & Alcohol Dependence,

193, 197 (2006).

to a neighborhood. The evidence is to the contrary.

Communities’ experiences with the more than 110

OPSs in operation worldwide demonstrate that OPSs

can, in fact, reduce the negative effects of injection

drug use and enhance public safety.46 In Vancouver,

controlled studies documented an abrupt and durable

decline in property crimes and violent crimes in the

area around the OPS.47 A study in Sydney likewise

concluded that no local increases in property crimes,

drug-related crimes, or loitering could be attributed

to the opening of an OPS.48 And a 2018 RAND

Corporation review of the empirical literature concluded that “[n]o study reported an increase in crime

associated with [OPS] operation.”49 Notably, OPSs

also protect their participants, who are more likely

than the general population to be victims of violent

and property crimes.50

Similarly, a study of the Vancouver OPS found that

daily counts of suspected drug dealers in the vicinity

See RAND Report, supra note 4, at 30-31.

Andrew J. Myer & Linsey Belisle, Highs and Lows: An

Interrupted Time-Series Evaluation of the Impact of North

America’s Only Supervised Injection Facility on Crime, 48 J. Drug

Issues 36, 43 (2017). See also Canada v. PHS Community

Services Society, [2011] 3 S.C.R. 134, 189 (Can.) (reaching the

same conclusion about the Vancouver OPS).

Karen Freeman et al., The impact of the Sydney Medically

Supervised Injecting Centre (MSIC) on crime, 24 Drug & Alcohol

Rev. 173, 182-184 (2005).

RAND Report, supra note 4, at 34.

See, e.g., Nadia Fairbairn et al., Seeking refuge from violence

in street-based drug scenes: Women’s experiences in North

America’s first supervised injection facility, 67 Soc. Sci. & Med.

817, 817 (2008).

did not increase after the OPS was opened.51 The

reason is simple: OPSs tend to serve people in the

immediate neighborhood, rather than drawing in

people from farther away. Over 70 percent of frequent

users of the Vancouver OPS reported living within

four blocks of the facility.52 And while overdose

mortality dropped approximately 35 percent in the

area within 500 meters of the facility following its

opening, there were no significant changes in overdose

mortality further away.53 This concentrated benefit

suggests that the OPS was primarily serving people

already in that area, rather than attracting people

from elsewhere. Because an OPS largely serves its

immediate neighborhood, rather than drawing in new

users, there is no additional demand drawing drug

dealers into the area. And an OPS’s presence need not

prevent law enforcement from going after dealers and

traffickers as they always have.

OPSs also decrease public nuisances associated with

large-scale public injection in public streets, alleys,

parks, and restrooms.54 The prevalence of discarded

needles and other injection-related litter tends to drop

near an OPS, since an OPS moves consumption inside

and provides safe disposal facilities.55 Studies have

Evan Wood et al., Changes in Public Order After the Opening

of a Medically Supervised Safer Injecting Facility for Illicit

Injection Drug Users, 171 Canadian Med. Assoc. J., 731, 733

(2004).

Marshall, supra note 35, at 1431.

Id. at 1433.

Wood, supra note 51, at 732.

MSIC (Medically Supervised Injection Centre) Evaluation

Committee, Final Report of the Evaluation of the Sydney Medically Supervised Injection Centre 116-125 (2003), https://www.

drugsandalcohol.ie/5706/1/MSIC_final_evaluation_report.pdf.

also found that opening an OPS does not increase

drug-related loitering or create open-air drug scenes in

the surrounding area.56

B. Overdose Prevention Sites Promote

Trust In The Justice System, Thus

Enhancing Public Safety

Amici understand that developing and retaining

the trust of the communities they serve is vital to

enforcing the law and protecting public safety. Police

and prosecutors can neither prevent nor solve crimes

without cooperation and trust from the people they

serve. But community trust requires that people

view the criminal justice system and law enforcement

as legitimate. As the nationwide protests against

systemic racism and police brutality underscore, law

enforcement’s legitimacy depends on valuing the dignity of all human life. Adopting a harm reduction

approach—and treating substance use disorder as the

public health issue it is—fortifies confidence in law

enforcement’s legitimacy. Harm reduction enhances

legitimacy by embracing proactive and supportive

public health approaches that save lives, stabilizing

communities, and disrupting the cycles of trauma that

perpetuate crime.

Conversely, a punitive approach to managing substance use disorder breeds distrust, amplifies drug use

harms, and creates unnecessary risk from additional

police interactions. Excessive policing of people who

use drugs creates frequent, often hostile contacts with

police, disproportionately affecting communities of

See Laura Huey, What is Known About the Impacts of

Supervised Injection Sites on Community Safety and Wellbeing?

A Systematic Review, 48 Soc. Publications 11-12 (2019) (collecting

studies).

color. Repeated searches, arrests, prosecutions, and

punishment in response to a public health concern

exacerbate tensions between police and the community. Such interactions also spur police use-of-force

incidents, further risking the safety of all involved.

Treating overdoses as crime scenes also alienates community members and dissuades people from seeking

help.58 Indeed, people witnessing an overdose often

delay calling emergency services due to fear and

distrust of the police.59 This trust deficit costs lives—

even a few minutes’ delay can turn an overdose into a

fatality.

Aggressive enforcement can also deter people who

use drugs from reporting crimes committed against

them. People who use drugs are more frequently

victims of crime,60 but they are unlikely to report those

crimes unless there is a relationship of trust with law

enforcement. This dynamic can lead to increased lawlessness in areas where drug use is common, as crimes

See Jamie Fellner, Race, Drugs, and Law Enforcement in the

United States, 20 Stan. Law & Pol’y Rev. 257, 269-74 (2009),

https://www-cdn.law.stanford.edu/wp-content/uploads/2018/03/fe

llner.pdf.

See Leo Beletsky, America’s Favorite Antidote: Drug-Induced

Homicide in the Age of the Overdose Crisis, 4 Utah L. Rev. 833,

862-863 (2019).

See Melissa Tracy et al., Circumstances of Witnessed Drug

Overdose in New York City: Implications for Intervention, 79 Drug

& Alcohol Dependence 181, 183-185 (2005) (“The most commonly

cited reason for delaying or failing to get help was fear of police

response (52.2%). Among those who called for medical help at the

last witnessed overdose, 21.2% delayed before calling for help; the

most frequently reported reason for the delay was fear of police

response (66.3%).”).

See Karen McElrath et al., Crime Victimization Among

Injection Drug Users, 27 J. of Drug Issues 771, 779 (1997).

against vulnerable people go unreported. By contrast,

harm reduction programs, including OPSs, reduce

crime by stabilizing lives. For example, Seattle’s

LEAD program significantly reduced re-arrest rates

for participants, as compared to people subject to

standard criminal prosecution.61

Criminal justice leaders in cities with OPSs recognize the stabilizing effects an OPS can bring to a drugridden community. This understanding is critical,

because a harm reduction facility cannot be effective

unless the police allow people to come and go without

fear of arrest. Indeed, local police tend to quickly

become a major source of referrals for OPS participants after the facilities open.62 These referrals

indicate that local law enforcement can come to trust

OPSs as a constructive part of the collective effort to

protect the community.

Supportive, non-punitive interactions between law

enforcement officers and people who use drugs can

make the entire community safer. Indeed, numerous

law enforcement groups have endorsed harm reduction

policies, noting that “[p]olice are at the front-line of

this ‘war’, and many individuals around the world are

growing weary of fighting a ‘war’ that has so many

negative outcomes, especially poor health outcomes,

for so many of those involved. Police have growing

See Susan E. Collins et al., LEAD Program Evaluation:

Recidivism Report (March 27, 2015), http://static1.1.sqspcdn.com/

static/f/1185392/26121870/1428513375150/LEAD_EVALUATION_

4-7-15.pdf.

See Evan Wood et al., Impact of a Medically Supervised Safer

Injecting Facility on Drug Dealing and Other Drug-Related

Crime, 13 Substance Abuse Treatment, Prevention, and Policy 1,

1, 3 (2006).

concerns about a system that pits them against

everyday citizens.”63

The public likewise understands the need to

embrace these strategies. Recent polling indicates

that 60 percent of the American public (including 53

percent of Republicans) support OPSs as a tool to

reduce fatal opioid overdoses.64 This reflects Americans’

quintessentially pragmatic understanding that extraordinary public health problems demand proven public

health responses.

Distorting federal drug laws to prohibit an OPS or

to prosecute its sponsors would further undermine

trust in the justice system and faith in the fair and

sensible application of our drug laws. Interpreting

federal criminal law to bar empirically validated harm

reduction measures would make no one safer; it would

only impede cooperation between law enforcement and

the communities they serve.

* * *

OPSs protect their communities from harm and

serve those who need support. As the district court

ruled, and as Judge Roth wrote in dissent in the Third

Circuit, the Controlled Substances Act does not

criminalize public health facilities. Amici therefore

Centre for Law Enforcement & Public Health, Police

Statement of Support for Drug Policy Reform (Feb. 2019),

https://cleph.com.au/application/files/4815/4957/9983/Statement

_of_Support_for_Drug_Policy_Reform_Feb_2019.pdf. See also,

e.g., PHS Community Services Society, 3 S.C.R. at 151 (“The

Vancouver police support Insite.”).

Sterling Johnson & Leo Beletsky, The Role of Overdose

Prevention Sites in Coronavirus Response, Justice Collaborative

Inst. (May 7, 2020), https://papers.ssrn.com/sol3/papers.cfm?ab

stract_id=3607946.

submit that Philadelphia and other American communities should be able to gain the proven benefits of

an OPS to save lives, improve public health, and

enhance community trust and public safety. This was

evident at the time of the district court’s thoughtful

decision; the overlay of a global health crisis and an

intensified distrust of law enforcement make it all the

more apparent.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MIRIAM KRINSKY

DANIEL SEGAL

ROSEMARY NIDIRY

Counsel of Record

ELIZABETH KOMAR

MATTHEW A. HAMERMESH

DAVID WEISS

HANGLEY ARONCHICK SEGAL

ESTELA DIMAS

PUDLIN & SCHILLER

FAIR AND JUST PROSECUTION, One Logan Square, 27th Floor

A PROJECT OF THE

Philadelphia, PA 19103

TIDES CENTER

(215) 568-6200

1012 Torney Avenue

das@hangley.com

San Francisco, CA 94129

Counsel for Amici Curiae

September 17, 2021

APPENDIX

List of Amici Curiae

Roy L. Austin

Former Deputy Assistant Attorney General, Civil

Rights Division, U.S. Department of Justice

Former Deputy Assistant to President Obama for

the Office of Urban Affairs, Justice and Opportunity

(White House Domestic Policy Council)

Diana Becton

District Attorney, Contra Costa County, California

Wesley Bell

Prosecuting Attorney, St. Louis County, Missouri

Buta Biberaj

Commonwealth’s Attorney, Loudoun County, Virginia

Sherry Boston

District Attorney, DeKalb County, Georgia

Chesa Boudin

District Attorney, City and County of San Francisco,

California

Joseph Brann

Former Chief, Hayward Police Department, California

Former Director, Office of Community Oriented Policing

Services (COPS), U.S. Department of Justice

Aisha Braveboy

State’s Attorney, Prince George’s County, Maryland

Kenyen Brown

Former U.S. Attorney, Southern District of Alabama

Jim Bueermann

President, National Police Foundation

Former Chief, Redlands Police Department, California

Chris Burbank

Vice President, Law Enforcement Strategy, Center for

Policing Equity

Former Chief, Salt Lake City Police Department, Utah

Mike Butler

Chief, Longmont Police Department, Colorado

Kimberly B. Cheney

Former Attorney General, Vermont

John Choi

County Attorney, Ramsey County (St. Paul), Minnesota

Jerry L. Clayton

Sheriff, Washtenaw County (Ann Arbor), Michigan

Dave Clegg

District Attorney, Ulster County, New York

Scott Colom

District Attorney, 16th Judicial District, Mississippi

Brendan Cox

Former Chief, Albany Police Department, New York

John Creuzot

District Attorney, Dallas County, Texas

Satana Deberry

District Attorney, Durham County, North Carolina

Parisa Dehghani-Tafti

Commonwealth’s Attorney, Arlington County and the

City of Falls Church, Virginia

Brandon del Pozo

Former Chief, Burlington Police Department, Vermont

Michael Dougherty

District Attorney, 20th Judicial District (Boulder),

Colorado

Mark Dupree

District Attorney, Wyandotte County (Kansas City),

Kansas

Kimberly M. Foxx

State’s Attorney, Cook County (Chicago), Illinois

Neill Franklin

Major (Ret.), Maryland State Police and Baltimore

Police Department, Maryland

Former Executive Director, Law Enforcement Action

Partnership (LEAP)

Gil Garcetti

Former District Attorney, Los Angeles County, California

Kimberly Gardner

Circuit Attorney, City of St. Louis, Missouri

George Gascón

District Attorney, Los Angeles County, California

Former District Attorney, City and County of San

Francisco, California

Former Chief, San Francisco Police Department,

California

Former Chief, Mesa Police Department, Arizona

Sarah F. George

State’s Attorney, Chittenden County (Burlington),

Vermont

Diane Goldstein

Executive Director, Law Enforcement Action Partnership (LEAP)

Joe Gonzales

District Attorney, Bexar County (San Antonio), Texas

Deborah Gonzalez

District Attorney, Western Judicial Circuit (Athens),

Georgia

Eric Gonzalez

District Attorney, Kings County (Brooklyn), New York

Mark Gonzalez

District Attorney, Nueces County (Corpus Christi), Texas

Andrea Harrington

District Attorney, Berkshire County, Massachusetts

Robert J. Hoffman

Former Chief, Plainfield Police Department, Connecticut

Peter Holmes

City Attorney, Seattle, Washington

John Hummel

District Attorney, Deschutes County, Oregon

Natasha Irving

District Attorney, 6th Prosecutorial District, Maine

Melinda Katz

District Attorney, Queens County, New York

Justin F. Kollar

Former Prosecuting Attorney, County of Kaua’i, Hawaii

Lawrence S. Krasner

District Attorney, Philadelphia, Pennsylvania

William Lansdowne

Former Chief, San Diego Police Department, California

Former Chief, San Jose Police Department, California

Former Chief, Richmond Police Department, California

Rebecca Like

Second Deputy Prosecuting Attorney, County of Kaua’i,

Hawaii

James Manfre

Former Sheriff, Flagler County, Florida

Beth McCann

District Attorney, 2nd Judicial District (Denver), Colorado

Isaiah McKinnon

Former Chief, Detroit Police Department, Michigan

Daniel Meloy

Former Chief, Colerain Township Police Department,

Ohio

Spencer Merriweather

District Attorney, Mecklenburg County, North Carolina

Brian Middleton

District Attorney, Fort Bend County, Texas

Stephen Mills

Former Chief, Lindsay Police Department, Oklahoma

Marilyn Mosby

State’s Attorney, Baltimore City, Maryland

Bill Nettles

Former U.S. Attorney, District of Vermont

Jody Owens

District Attorney, Hinds County, Mississippi

Jim Petro

Former Attorney General, Ohio

Ira Reiner

Former District Attorney, Los Angeles County, California

Former City Attorney, Los Angeles, California

Rob Reyes

Former Chief, U.S. Department of Veterans’ Affairs

Police Department

Rachael Rollins

District

Attorney,

Massachusetts

Suffolk

County

(Boston),

Jeff Rosen

District Attorney, Santa Clara County, California

Stephen Rosenthal

Former Attorney General, Virginia

Dan Satterberg

Prosecuting Attorney, King County (Seattle), Washington

Ronal Serpas

Former Superintendent, New Orleans Police Department, Louisiana

Former Chief, Metropolitan Nashville Police Department, Tennessee

Former Chief, Washington State Patrol, Washington

Harry L. Shorstein

Former State Attorney,

(Jacksonville), Florida

4th

Judicial

Circuit

Daniella Shorter

District Attorney, 22nd Judicial District, Mississippi

Carol Siemon

Prosecuting Attorney, Ingham County (Lansing),

Michigan

David Soares

District Attorney, Albany County, New York

Norm Stamper

Former Chief, Seattle Police Department, Washington

David Sullivan

District Attorney, Northwestern District, Massachusetts

Tom Synan

Chief, Newton Police Department, Ohio

Betty Taylor

Former Chief, Winfield Police Department, Missouri

Jennifer Tejada

Chief, Emeryville Police Department, California

Tom Thompson

Former Chief, Kettering Health Network Police

Department, Ohio

Steven Tompkins

Sheriff, Suffolk County (Boston), Massachusetts

Raúl Torrez

District Attorney, Bernalillo County (Albuquerque),

New Mexico

Cyrus R. Vance

District Attorney, New York County (Manhattan),

New York

Peter Volkmann

Police Commissioner, City of Hudson, New York

Mike Ward

Former Chief, Alexandria Police Department, Kentucky

Andrew Warren

State Attorney, 13th Judicial Circuit (Tampa), Florida

Organizations

Law Enforcement Action Partnership (LEAP)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.