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Bronx D.A. Says She Wants to Reduce Overdose Deaths, But Opposes A Program That Can Help

Darcel Clark’s approach to overdose deaths continue the criminalization of drug users and put her on the wrong side of history, advocates say.

Darcel Clark at a podium
Bronx DA’s website

The Bronx has the highest rate of drug overdose deaths in New York City. If the South Bronx were a state, it would be ranked among the highest in the nation in rates of overdose deaths. The Bronx had 342 such deaths in 2017, and in the first three quarters of 2018 there were 272.

In New York City, as a whole, 2017 was the deadliest year on record for overdoses. City officials have put out multiple plans to halt the crisis. One of those plans calls for opening safe injection sites, government-sanctioned places where people who use drugs can do so under the care of medical staff. The main purpose of these sites, also known as safer consumption spaces or supervised injection sites, is to prevent overdose deaths.

Last year, the mayor’s office published a report on overdose deaths in the city and called for a one-year pilot program of four supervised injection sites in three boroughs: the Bronx, Manhattan, and Brooklyn. To open this program, the city would need permission from state authorities and the borough DAs; the Manhattan and Brooklyn DAs have already pledged their support.

But Bronx District Attorney Darcel Clark doesn’t appear to be on board. On a radio show in January, she came out against the supervised injection sites.

“As a district attorney, as somebody who has to deal with people dying of overdoses every day, I think it’s a little dangerous to set up places where people can say that they can shoot up safely—but you don’t know what it is that they’re taking,” Clark said.

“I think the government should not be involved in taking on that kind of liability. I don’t look forward to anything like that.”

Advocates say her refusal to adopt harm reduction strategies and treat substance use disorders as a public health problem will put her on the wrong side of history. They argue that her office’s everyday prosecution tactics cause harm and her commitment to criminalization makes her one of the leading figures of current drug war practices in the city.

“The failed war on drugs has shown us that we cannot arrest and punish our way out of the opioid crisis,” Avery McNeil, the Alternatives to Incarceration specialist at the Bronx Defenders, told The Appeal. “Safe injection sites are a common sense and practical way to meet people where they are, connect them to the services they need, and hopefully prevent deaths.”

Governor Andrew Cuomo has not yet committed to the city’s proposal, but his office told The Appeal he is open to it.

Safe injection sites are a common sense and practical way to meet people where they are, connect them to the services they need, and hopefully prevent deaths.

Avery McNeil Alternatives to Incarceration specialist at the Bronx Defenders

“Governor Cuomo has long championed a multi-faceted response to the opioid crisis with a focus on prevention, harm reduction, treatment and recovery and we remain committed to exploring all options to reduce opioid deaths,” Hazel Crampton-Hays, a spokesperson for the governor, told The Appeal by email.

Safer consumption sites have opened in multiple countries in Europe as well as in Canada and Australia. There are over 100 sites in 12 countries, according to the Drug Policy Alliance. The sites allow people to use drugs in a safe environment—providing safe needles and supplies, medical assistance if necessary, fentanyl drug testing, and an entryway into treatment. Advocates have pushed a primary fact about safe injection sites: None have ever reported a deadly overdose.

Safe injection sites aren’t expected to solve the opioid epidemic. Rather, they are one tool within a larger harm reduction strategy, which might include helping people get housing and stabilize their lives. Jasmine Budnella, the drug policy coordinator at Vocal-NY, told The Appeal that harm reduction is grounded in the idea that drug users are human beings and should be treated with respect and dignity in a nonjudgmental environment. Advocates argue that harm reduction strategies can save lives, as they have in other areas.

“The basic harm reduction strategies are like condoms, right?” Budnella said.  “Condoms are harm reduction. How do we have safer sex? Well, we know people are going to have sex, how do we make sure it’s safe? Seat belts are another example.”

When it comes to drugs, Budnella pointed to syringe exchange programs as an example. “They reduce the harm, provide people sterile supplies. It’s everything that a safe injection site would do, beyond the fact that we offer places where folks can use openly and be able to get revived if they overdose,” Budnella said.

Fentanyl strip tests, currently provided with the state’s syringe exchange programs, allow people who use drugs to determine whether their drugs include fentanyl. These strips could easily be provided in a safer consumption site as well.

Arresting someone experiencing a personal health crisis only exacerbates the problem.

Avery McNeil Alternatives to Incarceration specialist at the Bronx Defenders

But the Trump administration may try to intimidate cities out of considering safe injection sites to reduce deaths. At the end of January, Philadelphia city officials approved the opening of a safer consumption site, operated and financed through the nonprofit Safehouse. About two weeks later, the Department of Justice and U.S. Attorney William McSwain filed a civil lawsuit against the nonprofit. The lawsuit claims that a safer consumption site would violate the section of the Controlled Substances Act that says maintaining a place for the purpose of using a controlled substance is illegal. Often referred to as the “crack house” statute, it was passed in 1986 under Ronald Reagan during an era known for its harsh drug war tactics.

“We have been actively working with stakeholders and the city on their proposal while working to address the threat of federal legal challenges,” Crampton-Hays said of New York City. “As part of our ongoing review, we are closely evaluating the claims and issues raised in the federal case in Pennsylvania.​”

Though she balked at safe injection sites, Clark said she was concerned with the epidemic of opiate overdoses in the Bronx and the city as a whole.  

“It’s because of the fact that fentanyl is being pushed into the drugs now. And that’s 50 times, 100 times more potent than heroin. … This is not the same old heroin. And it’s killing them,” Clark said on the radio show.

“I want to be at the forefront of turning those [overdose] numbers around in the Bronx. I had a number of programs put in place to really start saving lives.”

Clark’s recent programs mainly consist of drug courts that she opened with Chief Administrative Judge Lawrence Marks in 2018. The Bronx Criminal Court’s Overdose Avoidance and Recovery (OAR) program allows some people charged with criminal possession in the seventh degree to go through “intensive” treatment. The defendants are screened and if they are determined to be at high risk of overdose, they can make the decision to enter the program. For the people who successfully complete the program, their cases will be dismissed and sealed.

However, advocates say continuing to handle substance use disorders through the criminal legal system is a mistake, and one that will cost lives.

“It’s wildly ridiculous to hear a DA say that we cannot arrest our way out of this but proposes nothing but negative war on drug tactics that really do nothing but to accomplish anything but continues to fuel the fire of the opioid crisis,” Budnella told The Appeal.

“We know that the war on drugs failed,” she continued. “It’s a racist, classist war. And doing nothing to actually focus a public health crisis through a public health lens is absolutely harming people.”

The Bronx district attorney’s office did not respond to multiple requests for comment about Clark’s current prosecution efforts, harm reduction strategies, or programs she has implemented to address the overdose crisis.

McNeil pointed out that Clark’s main alternative is bringing people through drug courts, a situation that starts with an arrest.

“The tools of the criminal justice system are simply too blunt, too harsh, and too coercive,” McNeil said. “Arresting someone experiencing a personal health crisis only exacerbates the problem.”

Our clients are presented with an impossible decision: Commit to drug treatment or risk being detained at Rikers Island. It’s not really a choice at all.

Avery McNeil Alternatives to Incarceration specialist at the Bronx Defenders

The main problem with drug courts, advocates say, is that people struggling with substance use disorders and other drug users are still being brought into the criminal legal system. For opiate users or people undergoing a treatment program like such as a medication-assisted treatment, spending 24 hours in a jail cell often means going through painful and dangerous withdrawal at least until arraignment, when they might be diverted into the drug court and a treatment program. If the defendant doesn’t complete the treatment— which can require court supervision, random drug and alcohol tests, and hours of programming and community service— the result is often incarceration. The alternative: proceed with the criminal charges and possibly return to jail.

“I don’t think drug courts are beneficial in our process to save lives,” Budnella said. People with substance use disorders who leave incarceration are 40 times more likely to die in the first two weeks of release, according to a study in the American Journal of Public Health.

Often, people with opioid use disorders will come into arraignments visibly in withdrawal.

“When we first meet our clients in court, they have been handcuffed, thrown in a police car, spent a night sleeping on the floor of a holding cell, and are often in active withdrawal. Many are sick and in need of medication,” McNeil said.

“They are anxious about seeing the judge, about their jobs, their children, their housing. It is in this context that our clients are presented with an impossible decision: Commit to drug treatment or risk being detained at Rikers Island. It’s not really a choice at all.”

The impact of Clark’s new drug courts is also limited. While the OAR program does not require people to plead guilty, only people charged with misdemeanors can participate. But people charged with felonies, which include possessing a larger amount of a drug or being arrested in the NYPD’s buy-and-bust campaigns, are not eligible for OAR and have to go through the traditional drug court. In order to enter this drug court, people  must plead guilty to the felony. If they don’t complete the treatment program, they are usually sentenced to two years in prison followed by two years in supervised release (for a first-time felony).

Budnella argues that drug courts, combined with arrests and the threat of jail, help create a stigma that pushes people who use drugs into more dangerous situations.

“People are being forced into the shadows where they are dying. This is a way to bring people in so that they don’t die and [to] make sure they stay alive.”