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Safe Injection Sites Are On the Way. But Will Prosecutions Follow?

As the federal government vows to pursue ‘swift and aggressive action’ against the sites, experts weigh in on what’s likely to happen next.

Safer Inside, a full-scale model of a safe injection site in San Francisco, presented by the Tenderloin Health Improvement Partnership.
Credit: Alain McLaughlin

Safe Injection Sites Are On the Way. But Will Prosecutions Follow?

As the federal government vows to pursue ‘swift and aggressive action’ against the sites, experts weigh in on what’s likely to happen next.

Christina Garcés and her team of volunteers spend every Sunday in Philadelphia’s Kensington neighborhood, the heart of the city’s opioid epidemic. Part of a local harm-reduction group called SOL Collective, they frequently run out of Narcan, the opioid overdose reversal drug, because the people they work with so often request it. “The reason why we’re out here is because we’re trying desperately to fill a gap in healthcare,” Garcés explained.

City leaders have proposed a safe injection site to lessen that gap. The idea behind it is simple, if controversial: Having a place where people struggling with addiction can shoot up under the supervision of medical professionals has been shown to prevent lethal overdoses.

Yet opponents, including the Department of Justice, view the concept as government-sanctioned illicit drug use—a stance Deputy Attorney General Rod Rosenstein made clear in an opinion article in the New York Times. “Advocates euphemistically call them ‘safe injection sites,’ but they are very dangerous and would only make the opioid crisis worse,” he wrote, promising to “meet the opening of any injection site with swift and aggressive action.”

That could pose a problem in a number of jurisdictions, both cities and states, that have reportedly started the process of establishing official safe injection sites. Still, in recent weeks, state and local lawmakers in California and Philadelphia have stepped up their public support for creating them in defiance of the federal government. A bill sitting on California Governor Jerry Brown’s desk would greenlight San Francisco to establish what could be the country’s first safe injection site pilot. On Sept. 4, local officials pressured him to do so at a press conference where San Francisco Mayor London Breed vowed to open a supervised injection site soon, whether or not the state bill is signed and despite federal opposition.

And on the other coast, a spokesperson for Philadelphia’s Department of Public Health, James Garrow, has endorsed plans to open a site. “The evidence speaks for itself—overdose prevention sites can save lives and reduce neighborhood disorder,” he said in a statement. “The federal government should focus its enforcement on the pill mills and illegal drug traffickers who supply the poison that is killing our residents, not on preventing public health officials from acting to keep Philadelphians from dying.”

However, in both San Francisco and Philadelphia, the proposed sites would be run by nonprofits rather than the cities themselves. And, as of yet, no official has proposed a plan to protect any organization willing to host a safe injection site or their workers from federal prosecution. In an interview with NPR, Rosenstein reiterated that “[P]eople who engage in that activity remain vulnerable to civil and criminal enforcement.” He suggested that advocates who want to protect people who use or oversee the use of an illicit opioid should “persuade the U.S. Congress to legalize it”—an unlikely outcome under Republican rule.

A table of supplies at the model safe injection site in San Francisco.
Credit: Alain McLaughlin

When asked about the threats inherent in these sites, officials in both Philadelphia and San Francisco seemed to sidestep the question. “[A]ny such center would have proper security precautions in place,” Garrow said in a statement, declining to offer specifics. Mayor Breed also addressed the issue with a vague response. “There are some challenges with federal law,” she said. “We need to make sure that the people who are going to be working at these sites are protected.”

The Appeal contacted some likely nonprofit partners to discuss the legal risk, but none were prepared to say whether they would host a safe injection site if propositioned or to speculate on the consequences.

How controversy grew

While safe injection sites were controversial before President Trump was elected, the issue seemed to fly under the radar of the federal government then, said Corey Davis, an attorney with the National Health Law Program who has been researching and advocating safe injection sites for a decade.

“Up until AG [Jeff] Sessions, I thought it was very clear: You should try to get as much authorization as you can at the state and local level. Make sure your local police forces are on board; that was what you really had to worry about,” Davis said. This is not to say that the sites were popular in Washington, he explained, but that the battle would most likely be a local one. “I thought it would be really silly to worry that the DEA would take action,” he said.

But it wasn’t silly after all. And Rosenstein has the law behind him: Heroin is a Schedule 1 drug, which means the Drug Enforcement Administration classifies it as having no medical use and the highest potential for addiction. Under a law known as the “Crack House Statute,” it is a felony—punishable by up to 20 years in prison, and fines up to $500,000—to open, own, or run an establishment knowing that people come there to use drugs. The law, passed in 1986, was directed at private properties where people gathered to use and sell crack cocaine.

A model of individual booths that could be created in a safe injection site.
Credit: Alain McLaughlin

When Canada’s first safe injection site was opened in Vancouver in 2003, it did so in violation of federal law. There, a nonprofit covertly constructed a facility under the “ask for forgiveness, not permission” philosophy. When the building was ready to go, the group announced its intentions to local health authorities, who signed on—as health officials in Philadelphia, San Francisco and other jurisdictions have promised to do. However, the Canadian government was much more open to the idea overall. Canada’s health authorities agreed to give the site an exemption to federal drug laws to open as a scientific pilot and to be thoroughly evaluated, as long as the facility met government standards.

But, the Canadian government changed hands in 2006, and a conservative administration took over. Under threats of closure, the nonprofit that runs the site sued the federal government. The case eventually made it to the Canadian Supreme Court where, in 2011, justices ruled unanimously that it be allowed to continue operation, and that the federal law be changed to legalize safe injection sites.  

What comes next

Some legal experts say safe injection sites could face a similarly rocky-but-not-impossible path here in the United States, even in the Trump and Sessions era.

State laws condoning safe injection sites would not protect the sites’ workers from federal prosecution, but they could help in a court showdown, according to some legal observers.

Leo Beletsky, professor of law and public health at Northeastern University, said the law was written to sanction criminal operations, not a “legally authorized public health intervention,” as he and Davis wrote in a 2008 article published by the American Journal of Public Health.

If cities and states made that argument in court, they could potentially delay recriminations until there is a new administration, if not win at trial.  Beletsky sees it playing out like this: A jurisdiction that moves forward with plans to establish a safe injection facility would be given official notice that federal legal action is imminent. At that point, knowing litigation is on the horizon, the jurisdiction could request an injunction, allowing the site to operate while the case makes its way through the courts. During this time, he said, experts could study the efficacy of the site, and voters could elect a new president.

“This has never been litigated, and we’re in a public health crisis,” said Beletsky. Last year, about 50,000 people died from opioid overdose in the U.S., a number that has been rising steadily over the past decade and has jumped by about 7,000 since 2016. It’s numbers like these that have spurred elected officials, including President Trump, to declare the overdose epidemic a public health emergency. To enact an injunction, a judge would have to say that proponents of safe injection sites as a public health intervention would likely win in court.

Yet former federal prosecutor Brett Tolman told The Appeal he is skeptical that a judge would defy the Department of Justice. “Hoping for a judge to issue an injunction would be lightning in the bottle. You would have to have the right judge, a judge who would see that the problem is that people are dying,” he said. “If the DOJ is prosecuting, judges too often side with the government.”

He said that proponents’ best shot is to lobby Congress to enact a legislative fix.  “I think that you would certainly have issues with the Senator [Tom] Cottons [of Arkansas] and the like, who still think under-incarceration in the country is a problem,” he said. But, on other hand, “I do think that there are folks who … see the problem with prosecuting harm reduction. You would think that the number of people dying would make them want to take action.” Pushing possibly sympathetic legislators to support a bill legalizing supervised injection could offer a way to avoid the wrath of Sessions and Rosenstein.

Garcés, who often works with people struggling with addiction, agrees that the law should be changed. “It is a law that, in this situation, doesn’t protect people. In this situation, it prevents them from getting medical care,” she said. But she points out that the people she works with can’t wait for the lengthy process of legislative change, nor can their families. “This is someone’s daughter, this is someone’s son, this is someone’s dad,” she said. “We’re in a crisis.”  

Correction: This story has been updated to clarify that an injunction would require a judge to rule that proponents of safe injection sites would likely win in court.

As hurricane nears, South Carolina won’t evacuate over 900 prisoners in a red zone

As hurricane nears, South Carolina won’t evacuate over 900 prisoners in a red zone

What you’ll read today

  • Spotlight: As hurricane nears, South Carolina won’t evacuate over 900 prisoners in a red zone

  • Man sentenced as ‘career criminal’ gets his first chance at freedom in 48 years

  • Deported before his case was closed

  • Florida voters might lose their chance to reduce incarceration levels

  • Scholar argues to fix, not eliminate, private administration of justice

  • Nashville group aims to end school-to-prison pipeline

  • Louisiana residents will vote on nonunanimous juries

In the Spotlight

As hurricane nears, South Carolina won’t evacuate over 900 prisoners in a red zone

Despite an evacuation order for the area, while nearly a million leave their homes before Hurricane Florence hits, 934 inmates and as many as 119 prison staff members were ordered to stay behind. “Right now, we’re not in the process of moving inmates,” South Carolina Department of Corrections spokesperson Dexter Lee said. “In the past, it’s been safer to leave them there.” Ridgeland, which houses two prisons, falls within a red area on the evacuation map, meaning evacuation is most crucial. “We know the evacuation order I’m issuing will be inconvenient,” Governor Henry McMaster said during a press conference. “But we’re not going to gamble with the lives of the people of South Carolina. Not a one.” Except, apparently, for prisoners and some prison staff. Guards are not allowed to opt out of work during Hurricane Florence. [Emily Bohatch / The State] Prisoners in Virginia, however, have been evacuated.

“Since at least 2004, the intensity of hurricanes and the damage they have caused in America has increased significantly,” writes William Omorogieva in a paper published this year by the Sabin Center for Climate Change Law at Columbia Law School. “However, even with increased calls for evacuations, warnings from public officials, and around the clock media coverage, a significant portion of the population has continued to be overlooked during times of natural disasters. This neglected group of citizens ‘left out of sight and out of our hearts’ during natural disasters are [prisoners].”  The paper explores “the culture of neglect regarding prisoner safety and well-being during natural disasters.” It also reviews the shortcomings of existing legal protections, including the Eighth Amendment and the National Environmental Policy Act, in addition to inadequate prison emergency planning. [William Omorogieva / Sabin Center for Climate Change Law]

During Hurricane Katrina in 2005, the ACLU reported that over 6,500 prisoners were abandoned at the Orleans Parish Prison by the authorities without access to food, water, or ventilation. One 13-year-old girl in the prison’s youth center was moved to an area next to an adult male holding area where the men watched her relieve herself publicly. As the building flooded, she spent days in toxic water up to her neck. Adult prisoners rescued her and the other children from the waters. A guard at the psychiatric ward “was locked in during his shift to prevent desertion, and was then ordered to go to the roof with a shotgun and shoot anyone trying to leave one of the flooded buildings.” [ACLU]

An American University Law Review article documents the horrors endured by those incarcerated in Orleans Parish Prison during Katrina, including “days of rising, toxic waters, a lack of food and drinking water … beatings at the hands of guards [and finally being] marooned in correctional institutions throughout the state, as the judicial system in New Orleans ceased to function.” Robbins argues that “prison administrators have a constitutional duty to plan for emergencies, and argues that the failures of New Orleans officials to do so violated prisoners’ Sixth and Eighth Amendment rights, as well as internationally recognized human rights standards. With the wealth of training and planning materials available to prison officials and the knowledge of possible emergencies, it is unconscionable for prisons to have nonexistent or inadequate plans.” The article recommends “that states develop mechanisms, such as emergency courts, to enable the administration of justice to resume promptly following serious natural or man-made disasters.” [Ira P. Robbins / American University Law Review]

New York had no evacuation plan for Rikers Island during Hurricane Sandy, even though the jail, which housed 12,000 people at the time, was close to areas zoned for evacuation. In response to a question about the island’s evacuation, Mayor Michael Bloomberg, seeming to misunderstand, responded: “[On] Rikers Island, the land is up where they are and jails are secured. … Don’t worry about anybody getting out.” [Alyssa Rinaldi / NYU Local]

During Hurricane Maria, people detained in a federal jail were locked in their cells for a week. Toilets overflowed, and the water containing human waste mixed with flood waters, spreading across the cells. During the eventual evacuation, guards forced prisoners to lie face-down in the water. Those who refused were either pepper-sprayed or shot with rubber bullets. Eventually, by the time prisoners were hosed down and moved, in their wet clothes, to a federal prison in Mississippi and were given water and a sandwich, they had not been fed in over 24 hours. [Nick Chrastil / ThinkProgress]

The Marshall Project reported that evacuation would be difficult for many Puerto Ricans during Maria, but predicted that “it will be harder still for people who are incarcerated in Puerto Rico’s 29 territorial and federal prisons” because “the prisons are clustered around eight complexes across the island, most along the coast and near high-risk flood areas.” [Yolanda Martinez and Anna Flagg / Marshall Project]

Stories From The Appeal

Ken Agtuca and his family at a 2017 pow wow.. [Courtesy of the Agtuca family]

Man Sentenced as ‘Career Criminal’ Gets His First Chance at Freedom in 48 Years. Despite a 2015 Supreme Court ruling limiting the mandatory minimum law, few people are seeing relief. [Levi Pulkinnen]

Deported Before His Case Was Closed. Immigrants are being deported while their cases are still pending, immigration attorneys say. [Zack Peterson]

Stories From Around the Country

Florida voters might lose their chance to reduce incarceration levels: “A chance to allow the Legislature to drastically cut Florida’s prison population was knocked off the November ballot Thursday by a Tallahassee circuit judge, but that decision has been stayed pending an appeal,” reports the Florida Times-Union. “The ballot initiative, Amendment 11, has three portions: it would repeal xenophobic language from the Florida Constitution; it would repeal obsolete language; and it would make a highly technical change to the Legislature’s power over criminal sentences.” But a former state Supreme Court justice filed a lawsuit arguing that the amendment “violates voters’ First Amendment rights by bundling three unrelated issues.” The proposal would repeal much of the “savings clause,” an 1880s-era section of the state Constitution that prohibits the legislature from changing criminal sentences after someone has been convicted, which criminal justice advocates, including the ACLU, have said is a crucial way to reduce incarceration levels. [Andrew Pantazi / Florida Times-Union]

Scholar argues to fix, not eliminate, private administration of justice: On the most recent episode of the “Voir Dire” podcast from the Criminal Justice Policy Program at Harvard Law School, John Rappaport spoke about his forthcoming article “Criminal Justice, Inc.,” which asks, “To what extent can criminal justice be privatized?” Rappaport explores the private, for-profit system that major retailers nationwide have begun to employ to settle criminal disputes, “extracting payment from shoplifting suspects for a promise not to call the police.” The article shows “how industry has penetrated new parts of the criminal process, administering deterrent sanctions to resolve thousands of shoplifting allegations each year.” Critics call the practice blackmail and the interviewer rightly points out that it is only an option for those who can afford it, but Rappaport writes, “private justice can be seen as a novel form of decriminalization.” Instead of eliminating it due to its shortcomings, states “should aim to foster optimal conditions for its success.” [Schuyler Daum / Voir Dire]

Nashville group aims to end school-to-prison pipeline: “Last year, 113 students ages 12 and under were arrested in Metro Nashville Public Schools,” reports The Tennessean. “The youngest was a 7-year-old African American boy” who had run away from home. Instead of support at school, children who have learning disabilities or histories of poverty, neglect, or mental illness are arrested over and over. PASSAGE, which stands for Positive and Safe Schools Advancing Greater Equity, is a community initiative that hopes to change all this. PASSAGE “focuses on racial disparity in punishment.” It has worked with the school district to rewrite its code of conduct, eliminating discipline disparities and introducing positive intervention strategies. It is now, asking the school board to end all out-of-school suspensions, expulsions and arrests for elementary-age students, except in the most serious offenses involving drugs, weapons or violence. [Jessica Bliss / The Tennessean]

Louisiana residents will vote on nonunanimous juries: A Jim Crow-era statute allows a person in Louisiana to be convicted of a felony and sentenced to prison, including life without parole, on a 10-2 or 11-1 verdict. Louisiana and Oregon are the only states that allow split-jury verdicts in felony cases. “Lawmakers in Louisiana passed the split-jury rule in 1880 after the 14th Amendment guaranteed all men, including former slaves, the right to vote and serve on juries,” reports the Los Angeles Times. “The rule was formally entered into the Louisiana Constitution at the state’s 1898 constitutional convention, where lawmakers declared a mission to ‘perpetuate the supremacy of the Anglo-Saxon race in Louisiana.’” This has led to suppressing the power of Black jurors and to wrongful convictions. Efforts over the last decade to overturn the rule have been unsuccessful, but in a rare bipartisan move, Louisiana legislators passed a bill in May calling for a referendum, which will allow voters to amend the state’s constitution on Nov. 6. [Jenny Jarvie / Los Angeles Times]

Thanks for reading. We’ll see you tomorrow.

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In New York, Most Parolees Can Now Vote—But Many County Websites Say They Can't

As Thursday's election approaches, confusion reigns.

Screenshot of the NYC Board of Elections website (September 11, 2018).
Emma Whitford

In New York, Most Parolees Can Now Vote—But Many County Websites Say They Can't

As Thursday's election approaches, confusion reigns.

In May, Governor Andrew Cuomo of New York announced his first round of conditional pardons granting voting rights to 24,086 of the state’s roughly 36,000 parolees. “The right to vote is fundamental and it is unconscionable to deny that basic right of citizenship to New Yorkers who have paid their debt to society,” Cuomo stated at the time.

But a review by The Appeal found that notice of the governor’s message had not filtered down to the state’s more than 50 county-level Board of Elections websites, well past the Aug. 19 deadline to register to vote in Thursday’s state primary election.  

As of this week, more than half of the websites, including New York City’s (which serves  the city’s five counties)—home to approximately 16,000 parolees—stated explicitly that parolees do not have the right to vote. These sites feature some variation of the “Voter Qualifications” tab on the New York City Board of Elections website: To register to vote, it says, “you must… not be serving a jail sentence or be on parole for a felony conviction.”

Other county websites either linked to the state Board of Elections website, which updated on August 21 with the qualification that parolees cannot vote “unless parolee pardoned” (no reference to the executive order); or to PDFs of voter registration forms that state parolees cannot vote.

“I assume these [forms] were printed before the actual executive order,” surmised Isabel Zeitz-Moskin, an organizer for the National Action Network. The websites, however, “have no excuse.”

Parole officers across the state received instructions this spring to hand-deliver voter restoration pardons and voter registration forms to their parolees, according to the New York State Department of Corrections and Community Supervision. Parolees who don’t meet with their officers frequently can also look up their pardon status on the DOCCS website. But criminal justice advocates told The Appeal that misinformation on websites and forms has only compounded confusion among parolees.

“There are folks who, although they have received the pardon, are still very, very skeptical about being actually able to vote because they are hearing misinformation about this,” said Khalil Cumberbatch, associate vice president of policy at the Fortune Society, a re-entry organization based in New York City that has coordinated voter registration events for parolees this summer.

Cumberbatch added that while he’s been impressed by parole officers’ ability to quickly distribute forms, “we haven’t been in any communication with the governor’s office about coordination of efforts around registering people to vote.”

“There’s been a lot of confusion,” echoed Zeitz-Moskin. “I’ve been doing outreach outside of parole offices, and when I tell them they can [vote] they think they can’t. And then when I give them the form they say, ‘Oh I think my PO gave me one of those.’”

Only one county Board of Elections website, Ulster County, referenced the order explicitly before The Appeal inquired. “On April 18, 2018 Governor Andrew Cuomo signed an executive order allowing Parolees the right to register to vote,” it states. “To read the full order: click here.”

Ashley Dittus, the county’s Democratic elections commissioner, expressed surprise at having the only website with current information. “I guess the reason I put it on there is, I read about it, we got the executive order, and I thought it would be important for anyone to know,” she said by phone. “We have a lot of people who use that website so I try to keep it up to date as possible.”

“It was really easy to put it on,” Dittus added. “It took a minute.”

Susan Lerner, executive director of the good-government group Common Cause New York, says that the lack of information about the order on county-level websites is disappointing if not surprising in an “extraordinarily low voter information state” like New York.

“It’s very difficult to get the Boards of Elections to do anything,” Lerner told The Appeal. “It’s particularly disappointing in this situation, however, because these are voters who have felt marginalized and who need accurate information from every official source.”

Part of the confusion stems from the fact that Cuomo’s order did not issue a blanket pardon to all parolees, says Nick Encalada-Malinowski, civil rights campaign director for the nonprofit VOCAL-NY. Under the order, the state corrections department provides monthly lists of parolees to the governor’s office for consideration on a case-by-case basis. “Individual boards of elections are not necessarily reading it the same way,” Encalada-Malinowski said.   

The Appeal contacted all of the county boards of elections across the state this week to ask whether they planned to reference the order on their websites, and received a wide range of responses. “As this is not an edict that covers every parolee, a blanket statement that all can vote would be misleading,” said Mary Lou Monahan, Republican commissioner of the Chenango County Board of Elections.  

“Since there is no change of law, per se … there is no statute to put on our website to reference,” said Onondaga County’s Democratic elections commissioner, Dustin Czarny, adding that he would consider a reference to the order after Thursday’s primary.

Other commissioners said they hadn’t realized the issue, and that they planned to update their websites in light of The Appeal’s inquiry. In total, 15 boards told The Appeal that they were in the process of—or would consider—updating their websites, either to mirror the state board’s website or with an explicit reference to the order.

Norman Green, the Democratic elections commissioner for Chautauqua County, told The Appeal he hadn’t realized that his website linked to a PDF voter registration form that stated, “To register you must … not be in prison for a felony conviction” in the top left corner.

“We’re going to do our best to have that corrected by tomorrow close of business, even if we have to cross out whatever’s there and put it back up,” he said. He had done so by the next morning.

Asked if they had received instructions on implementing the order, many county boards of elections said they had received the order by email from the state board of elections along with lists of parolees who had been pardoned, but no guidelines about website language. In Clinton County, deputy Democratic elections commissioner Brandi Lloyd said, “We not only received training but we have paperwork and procedures to follow when a parolee has come in to register to vote.”

“Honestly I did not know that [inaccurate information] was on the website,” she added. “I’ll bring it up tomorrow because that should be updated.”

John Conklin, a spokesman for the state board of elections, confirmed to The Appeal Tuesday that his office did not urge county boards to update their websites. Nor did it attempt to update registration forms, because “we had no prior warning of the Executive Order and as a result, no time to prepare for it.” The state board plans to “revisit the issue” after the general election, when they’ll have to order a new run of forms.  

“The governor’s executive order did nothing to change the statutory qualifications for registering to vote. He only took advantage of an existing provision in the law that allows all governors to issue pardons,” Conklin stated. “As a result we saw no reason to change the qualifications on the website or the forms.”

Conklin did however confirm the addition of unless parolee pardoned” to the state board’s website, acknowledging “the volume of calls and emails we received asking questions.”

Cuomo’s office did not comment on the website discrepancies by press time. The New York City board of elections also did not respond to multiple requests for comment.

To mitigate confusion this summer, criminal justice reform groups in New York City have hosted town halls on parolee voting rights, including one in Brooklyn last month, to explain the executive order. VOCAL-NY has communicated with about 70 parolees outside parole offices, about 30 people at town halls, and about 2,000 people over text message in coordination with the New York Civic Engagement Table.

VOCAL-NY has helped only 15 to 20 parolees actually fill out their voter registration forms to date. However, the group says Cuomo’s office was instrumental in getting them approval to help register voters inside parole offices. That initiative launches this week.

Fortune Society, which says it has helped roughly 250 parolees register in New York City, also invited primary candidates to speak to parolees in August. Attorney general candidates Leecia Eve and Letitia James and gubernatorial candidate Cynthia Nixon have participated so far. (Attorney general candidates Zephyr Teachout and Sean Patrick Maloney postponed, according to Fortune Society; conversations are ongoing with Cuomo’s office.)

Still, advocates worry that their outreach efforts in New York City area aren’t being matched upstate. “Most of the proactivity is coming not from any government bureaucracies, but from nonprofits, and there’s an abundance here in the city,” said Zeitz-Moskin. “We have chapters in Buffalo and Syracuse and I’ve given them a training. And to an extent they’ve been doing some registration, but they don’t have the same capacity.”

Codifying parolee voting rights into law would go a long way toward mitigating confusion, says Encalada-Malinowski of VOCAL-NY.

“People leaving prison should be getting this documentation,” he added. “As you leave prison, you get your certificate. You get your voter registration form. You get explained how to do this stuff. It can’t happen … county by county.”

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