Will Massachusetts Be the Next State to Defy the Federal Ban on Overdose Prevention Centers?

Jeffrey A. Singer

Massachusetts Governor Maura Healey asked the Massachusetts Department of Public Health to report on whether it would be feasible for the Bay State to sanction overdose prevention centers (OPCs). As I wrote in a Cato briefing paper last February:

OPCs have a more than 30‐​year track record of preventing overdose deaths, HIV and hepatitis, and other diseases, and of helping people with substance use disorder find treatment. As of August 2022, 147 OPCs are providing services in 91 communities in 16 countries. They continue to gain acceptance as an effective tool for reducing the dangers of using drugs obtained through the increasingly deadly black market. Congress should remove federal barriers to OPCs in the United States.

The Massachusetts DPH agrees with me. The report it just released concluded:

Faced with the urgency of the overdose crisis, OPCs represent an evidence‐​based, life‐​saving tool that is aligned with a comprehensive, public health approach to reducing harm and improving wellbeing in the Commonwealth. OPCs are also well supported among people who use drugs, agencies and staff of existing harm reduction programs, and a majority of Commonwealth voters. After considering existing resources and capacity, DPH believes that OPC establishment is feasible and necessary, pending legislative action to extend legal protections, and recommends that OPCs be pursued as an additional tool to address the harms of substance use.

However, 21 U.S.C. Section 856, the so‐​called “crack house statute,” stands in the way. This federal law makes it illegal for an entity to knowingly permit the use of federally banned substances on its premises. The Massachusetts DPH report notes this unfortunate fact:

Unless there are changes to federal law, OPC activities will remain prohibited at the federal level and subject to the discretion of federal law enforcement.

In testimony before the House Judiciary Committee Subcommittee on Crime and Government Surveillance last March, I called on Congress to repeal the “crack house statute” to remove federal obstacles blocking harm reduction organizations from saving lives in their communities with this proven harm reduction strategy.

On November 30, 2021, the Mayor of New York City and the New York City Department of Health permitted OnPointNYC, a private non‐​profit harm reduction organization, to open two OPCs, one in Washington Heights and the other in East Harlem, in defiance of federal law. In July of this year, the organization reported reversing more than 1000 overdoses—those are 1000 people who might not be alive today. Kailin See, the implementation lead for the two OPCs in New York City, discussed their success—and the surrounding community’s acceptance of them—in a Cato online event last March.

The federal government has yet to take any steps to shut down the two New York City OPCs.

During the summer of 2021, Rhode Island lawmakers authorized privately funded OPCs in the Ocean State, and the first one is slated to open in early 2024.

Last May, Minnesota lawmakers authorized OPCs and also repealed the state’s drug paraphernalia laws.

As more state and local governments defy the federal ban, Congress will find it increasingly difficult to ignore the reality that OPCs save lives and that many states and communities want to permit them. The authors of the Massachusetts DPH report believe the same thing:

Unless there are changes to federal law, OPC activities will remain prohibited at the federal level and subject to the discretion of federal law enforcement. However, enacting a state law that expressly permits OPCs may lead to federal policy development that will reduce exposure to federal enforcement or potentially to changes in federal law as with the legalization of marijuana. Notably, OPCs have operated in NYC since 2021 without federal enforcement intervention and Rhode Island plans to open its first state‐​regulated OPC in March 2024.

The report went on to recommend,

For these reasons, DPH recommends that Massachusetts enact statutory language offering protection against arrest, charges, or prosecution of property owners, managers, employees, volunteers, clients or participants, and state, city or town government employees acting in the course and scope of employment pursuant to §32, §32A‑D, 32I, § 34 § 40 of M.G.L. c. 94C or § 1–3 of M.G.L. c. 271A, including for attempting, aiding and abetting, or conspiring to commit a violation of any of those sections. Additionally, individuals and entities should be protected from property forfeiture and civil and administrative penalty, including, but not limited to disciplinary action by a professional licensing board, credentialing restrictions, contractual or civil liability, or other employment action. Protection should not extend to gross negligence or willful or wanton misconduct, and should relate solely to the approval, participation, or operation of an OPC.

Hopefully, Governor Healey and Massachusetts lawmakers will take these recommendations to heart.

The Massachusetts DPH report is a beautiful holiday gift for harm reduction advocates. Hopefully, it will boost morale and energize efforts to remove federal obstacles to this proven strategy for reducing overdose deaths as we head into the new year.

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