CHAPTER 6
Do Less Harm
Oh brother are you gonna leave me wasting away
On the streets of Philadelphia.
—Bruce Springsteen, “Streets of Philadelphia”
A perverse, unjust system harms the bodies of the people in it. Our society has a history of addressing the overall health of our privileged classes, even in an epidemic, by pursuing or at least allowing the selective harming of our outsiders—Black, brown, indigenous, gay, and poor people, and people suffering from mental health issues and addiction—rather than protecting them. The nature of contagious disease, of any epidemic, is that it spreads. Our system comfortably disregards the deaths of marginalized people to its peril. It’s not just immoral, it’s suicidal in the end. Our history of facing HIV and COVID-19 proves that even as epidemics kill the outsiders first, in the end they are not as selective as people in power might prefer. Epidemics harm everyone. Even a perverse government bent on self-interest should have learned by now that protecting anyone’s body, no matter how marginalized and stigmatized that body is, protects everyone, including the people who hold power.
The Kensington neighborhood in Philadelphia has been the city’s epicenter of heroin use since at least the late 1960s due in part to the relative purity and low price of heroin available there, a by-product of the neighborhood’s proximity to the ports, highways, airports, and train tracks where drugs—and the guns that come with them—move up and down the East Coast. There are other reasons beyond its geography. Industry died here in the 1950s and ’60s, at first slowly, so that it degraded wages and drove out its population of white ethnic workers. Then industry died here completely, but only after a substantial population of Puerto Ricans moved here to work in industrial plants for low wages. They were effectively stranded. The next industry to arrive was the illegal sale of drugs, offering what became the only real economic opportunity in a neighborhood that remains desperately poor, even by Philadelphia’s standards. Notably, Philadelphia’s primary answer in Kensington has been to wage a failing war on addicted people through arrest and incarceration rather than to address their disease through public health approaches, which work far better. The story is not completely one-sided, as public health approaches have made moderate inroads and reaped benefits, benefits that I witnessed long before 2017 but that informed our platform as we campaigned.
I got to know Kensington in the late 1980s through my work as a public defender and later as a lawyer representing Prevention Point, Philadelphia’s needle exchange program that activists built in part to stop the spread of HIV/AIDS among intravenous drug users during the AIDS crisis. Drug users shared needles frequently, spreading the virus rapidly, as they shot up three or more times a day. The needle exchange collected dirty needles and syringes and exchanged them for sanitary ones. The fact that HIV/AIDS was spreading through intravenous drug use, blood transfusions, and sexual contact meant we needed to simultaneously slow its spread and do the research that could offer a medical solution down the road. I saw no reason why criminal laws meant to protect us should place us in danger.
My attachment to Prevention Point’s work to fight the spread of AIDS via intravenous drug use—and the related work of ACT UP, the AIDS Coalition to Unleash Power, to fight the spread of AIDS via sexual contact and to fund research to find a cure—was partly personal. Having gone to law school in the Bay Area from 1984 to 1987, Lisa and I watched the catastrophe of AIDS and HIV unfold in San Francisco, in particular, and quickly spread elsewhere, including Philadelphia. We were seeing a world ravaged by a growing plague my generation had so far failed to address. And it was getting worse. AIDS was already devastating certain marginalized groups—gay men, Haitians, hemophiliacs, at first—and was daily finding more groups to slaughter. My generation’s ongoing failure to cure it or to slow its spread meant that every human was or would soon be at risk. Intravenous drug use and insecure medical blood supplies were killing people. And so was mere sexual activity.
Lisa’s first job as a lawyer was representing workers who were discriminated against by employers. Many of those workers were people who had disabilities, including life-threatening illnesses. One of her fellow lawyers, a hemophiliac, contracted AIDS from a tainted blood supply and died. Other clients and organizations she represented connected her, and then me, to members of ACT UP and its remarkable non-violent work for social change. In the late 1980s, two American presidents—Reagan and the elder Bush—declined to fund medical research that might find a cure or at least flatten the curve of the spread of HIV. Televangelists intoned that AIDS was God’s plague on homosexuals.
When Bush visited Philadelphia he was greeted by activated and angry members of ACT UP, who with characteristic theatricality imagined for the impact of the photograph they could create and place above the newspaper’s fold. Protesting pallbearers carrying a symbolic coffin filled with symbolic ashes of the dead, to confront the president’s indifference to the growing epidemic. When jostling at the police barricade surrounding a prominent Philadelphia hotel caused the mock ashes to spill from the mock coffin, some panicky police wrongly assumed they were real ashes from the bodies of AIDS victims that could somehow infect them. A police riot ensued, with officers who had nothing to fear from the ashes violently swinging police batons that broke one protester’s skull and drew blood from others who might actually have been HIV-positive. A scandal ensued. The outgoing mayor appointed a blue ribbon panel to investigate the event, find facts, and make recommendations about how such a fiasco might be avoided in the future. The mayor allowed ACT UP to pick a panel member. The organization picked me, a baby public defender whose instincts they trusted and whose knowledge of police procedures, albeit limited, was an upgrade from their own. Other panelists included prominent members of law enforcement, academia, LGBTQ activism, and so on.
We worked for months, producing a bombshell report of about eighty pages that documented a lack of police training and policies around HIV and AIDS to reduce panic and prevent riots. We recommended the establishment of a civilian board to make policing more accountable. The whole process made me want to go beyond criminal justice, to do civil rights law for people whose skulls were cracked or who were otherwise stepped on by government for simply trying to protect lives. Serving on the panel changed the course of my career.
After five years as a county public defender and then a federal public defender in Philly, where I exclusively represented poor people charged with federal crimes, I set up my own private practice—the practice where I would continue solo, and with a few partners over time, for twenty-five years. Only a few years into my private practice, in the early 1990s, I was hired by Prevention Point, which had grown out of the work of ACT UP.
Back then, Lisa and I had just had our two sons. One was walking. Their births reminded me that the generation of children now arriving on this old planet were watching a worldwide epidemic expand, with no cure in sight. If we did nothing for all of our babies, as teens or adults many of them would unknowingly infect and eventually kill themselves and tens of millions of others. As usual, our government was not acting to prevent harm that did not yet greatly impact its beloved, powerful insiders. I wanted a piece of that historic, good fight and was excited to represent Prevention Point for the pittance they could pay.
Under Pennsylvania law, there is a simplistic legal argument that providing clean syringes to drug users violates the law against disseminating drug paraphernalia. But there is a better legal argument that providing clean syringes to drug users follows the law of justification, which includes the law of self-defense. Justification allows us to commit a smaller offense to prevent a greater harm, mostly when we are trying to protect ourselves or other people from suffering injury or death. In my view, protection of others—everyone, really—was the mission of Prevention Point and its needle exchange. Contracting or spreading HIV and suffering or dying from AIDS were great harms to
be prevented by the smaller offense of giving clean needles to intravenous drug users. So, in my view, Prevention Point’s work was morally required and legally justified. Not everyone agreed with this analysis.
In the early 1990s, Pennsylvania’s statewide prosecutor, the elected attorney general, railed against needle exchange programs like Prevention Point and suggested he would arrest and prosecute the activists who worked for them. His comments were friendly to upstate conservative voters uncomfortable with everything that HIV/AIDS and drugs and needles represented in the event he tried for higher office statewide, as so many other state attorneys general have done. I believed he meant business, and so did Prevention Point. We prepared for arrests and prosecution. But concern about the attorney general’s cynical enforcement subsided when he resigned his office after taking secret campaign contributions from video poker machine operators that were omitted from the finance reports he signed. Shortly before beginning his fourteen-month custodial sentence, the former law enforcement chief prosecutor reportedly told the press: “I can do federal prison standing on my head.”
Although the threat of Prevention Point being prosecuted by the Pennsylvania attorney general had been removed, Philadelphia police were initially unsupportive in a culture that still gave room to the laughable notion that providing clean needles increases drug use. It made no more sense than the fiction that access to condoms causes teenage sex. Science backs neither theory.
But Philadelphia police still rousted users who showed up for clean needles at the card tables Prevention Point set up in Kensington under the elevated train tracks. Rather than getting clean works, the users got arrested for possession of drugs, or witnessed their clean needles and syringes being stomped and broken by police boots.
But as time passed and public health information spread, the wisdom of stopping the spread of the disease by providing clean needles gained momentum with a new mayor, Ed Rendell, and policing in Philly changed. The cops left the exchange’s card tables alone. Over time, Prevention Point was accepted by government insiders because it reduced harm in the middle of an epidemic. The people of Prevention Point did a lot to reduce the spread of HIV, AIDS, and hepatitis C in Kensington and therefore helped to flatten the curve of their spread to everyone everywhere. In 2017, it was still being debated whether Prevention Point also reduced harm in Kensington by eliminating countless dirty needles from parks and sidewalks where everybody uninvolved in drugs walked around every day. Some neighbors blamed Prevention Point for the used needles’ presence in their community because Prevention Point supplied those needles and did not always require people to return dirty ones in exchange for new ones, as the phrase “needle exchange” suggests. Prevention Point’s better resourced and city-funded work was ongoing when I ran for district attorney. By then, it was efficiently distributing a few million needles annually, under punches from some neighborhood residents who blamed it and the absence of an idealized second war on drugs for their painful, daily struggles with the addiction and misery that surrounded their homes and affected them and their families daily. Prevention Point had saved a lot of lives. But it didn’t end Kensington’s problems.
Heroin use was worse than ever in Kensington during my campaign, thanks to the massive and reckless distribution by doctors of opioid pills manufactured by big pharmaceutical companies that corrupted healthcare with false marketing, lobbying, and cash that bought the U.S. government’s complicity. The U.S. government allowed the quadrupling of the U.S. opioid pill market over more than a decade while other, healthier countries reined in Big Pharma’s capacity to flood their national markets. American doctors were actively misled into becoming drug dealers who stuffed their patients’ hands with opioid pills that eventually enabled heroin and fentanyl addiction.
The United States was consuming approximately three-fourths of the world’s supply of opioid pills while other countries with long-standing heroin problems had turned widespread medical distribution of those pills away and were no worse off than before. For years, doctors and dentists had routinely written opioid prescriptions for a broken wrist, removed wisdom teeth, bariatric surgery. According to the U.S. Centers for Disease Control and Prevention, 20 percent of patients who take a ten-day prescription of opioids become addicted. For some people, the addiction starts the second day of taking the pills. Once the prescriptions expire and doctors refuse to write more, some people who are suffering addiction resort to street heroin. But, since at least 2015, Philly’s street heroin increasingly had been laced with fentanyl, a highly volatile and unpredictable anesthetic of such intense potency that tiny amounts are fatal, especially when they are roughly mixed with heroin or cocaine and crack by drug dealers rather than chemists. Fentanyl allows drug dealers to increase their profits while placing their customers in even more danger. By 2017, it was involved in more than 70 percent of fatal overdoses in Philadelphia.
Philadelphia was chronically among the worst jurisdictions in the United States for its rate of fatal drug overdoses. By comparison, New York, which is five or six times larger than Philadelphia, has about the same number of fatal overdoses per year as Philly. In 2017, more than one thousand people died from fatal drug overdoses in Philadelphia, more than died of AIDS per year at the height of the AIDS crisis there. That’s about three souls a day. One dies before I have breakfast; one dies by lunch; one more by dinner.
Opioids of all types kill primarily by suppressing breathing. Users nod off, sometimes when their necks are in a position that restricts air. For this reason, experienced opioid users take drugs with others nearby as lifeguards. Sadly, the other users are often impaired and may be simultaneously injecting the identical, potentially fatal mix. Opioid users who fatally overdose overwhelmingly die alone, behind dumpsters, in their bleak homes, or in the bathrooms of fast-food restaurants or libraries where no one sees them.
For many, addiction is self-medication for mental illness or severe trauma in its many forms—rape, abuse, or the weighty accumulation of terrible experiences in childhood that correspond directly to criminal conduct later, especially when they go untreated. I knew from my years as a criminal defense lawyer that many addicted people were healthy and vigorous before opioids got them. Several were injured athletes or construction workers who trusted their doctors’ prescriptions. The DSM-5 says substance addiction is a mental disorder: Substance Use Disorder. But unlike other medical problems we suffer that invoke compassion, our culture considers people suffering from addiction worthy of blame.
There is plenty of blame to ascribe to both our legally protected and our illegal opioid dealers—profiteering medical companies, medical providers, street drug dealers and their networks, and corrupted government. We have a punitive criminal justice system so wrongheaded that its failed war on drugs and program of mass incarceration have resulted in more street drugs at lower prices and more addiction than ever before. Go to jail and you will be massively delayed in getting treatment if any is available at all. There’s more access to treatment out of custody, woefully inadequate though it is. We should be outraged at this outcome, especially when we consider how other countries have avoided a similar crisis simply by limiting widespread medical distribution of opioid pills and providing low barriers to treatment, including national health programs. Instead, much of our outrage is directed at the person suffering the addiction, whose daily experience is fear mixed with stigma that erodes any feeling in them that their lives have value. So they hide from our government, its police and prosecutors, and with great frequency die alone. Stigma kills them, and we are all the source of that stigma.
Repeatedly, during my campaign in 2017, I was asked whether or not I supported Philadelphia copying what had already been done in places like Vancouver, Berlin, and Portugal. The answer wasn’t hard for me and has been the same since early in my career. Other candidates adamantly disagreed, or were tongue-tied, or just pivoted as always. Some people call them safe injection
sites. Others, wary of the notion that injection of hard drugs should ever be called safe, call them supervised injection sites. I call them harm reduction sites, because to me that’s what they are. The thing about these sites, whatever you call them, is that no one dies there. No one. Not since 2003, at least. No one dies in them in Canada or Germany or elsewhere, where they are legal. No one dies in them when they are run by idealistic doctors and med students. And there are no reports of deaths in the ones started by activists in the United States, where they are underground and illegal.
Most people who first hear of harm reduction sites conjure up images of medical doctors or maybe other drug users providing drugs and helping people inject in some post-apocalyptic urban ruin. Not so. There’s a roof. There is heating and cooling. Bathrooms are available. Opportunities for treatment are always available and encouraged in ways that are not intrusive. Some have detox facilities upstairs or offer help in other forms (copy machines, coffee, food, washing machines, advice on obtaining benefits) for people who are often homeless and whose daily grind is to avoid the physical and mental agony of coming off a drug that was fun only once, the first time they used.
For the People Page 11