In a wrong-headed move last week, Manhattan U.S. Attorney Damian Williams threatened enforcement action against the two Upper Manhattan overdose prevention centers run by nonprofit OnPoint, which provide space for drug users to test and use drugs under supervision of trained personnel. Explaining that the centers run afoul of the so-called crack house statute, Williams wrote that he was “an enforcer, not a policymaker.”
Williams is, of course, correct that federal prosecutors are appointed and confirmed for the purposes of enforcing the law. He is completely wrong that this responsibility entails an expectation that he will indiscriminately enforce all laws at all times without consideration of context. Prosecutorial discretion is one of the oldest and most significant principles of an administrative state, and governance would be untenable without it. Even the most die-hard, by-the-book, no-quarter lawyers and politicians have to admit that our society would collapse if every single law had to always be enforced, every jaywalker booked.
Crucially, Williams himself does not enforce another federal prohibition: against cannabis, which remains (stupidly) a federal Schedule I drug. As New York has haltingly set up a legal cannabis growth and retail sale sector (notwithstanding the prevalence of illegal marijuana businesses, which is a separate issue), Williams has stood back for the simple reason that the feds are exercising discretion not to take action.
The prosecutor’s allusion to the centers being in “violation of federal, state and local law” hints at a distinction between an operation that has been authorized by state law and one that hasn’t as of yet, but it’s not like OnPoint set up its centers in the middle of the night without any sign-off. The nonprofit was established with explicit approval by the City of New York, and has been operating under color of this authority and without incident for almost two years.
What exactly would an enforcement action look like here, anyway? Body-armored feds bursting in to stop trained observers from preventing overdoses? If Williams goes this route, let’s not mince words about what will happen; people will overdose, and they will die. The wraparound services that OnPoint provides to help people overcome addiction will either cease to operate or limp along with would-be enrollees afraid to participate.
Yes, the prosecutor will have technically enforced the law, and for what? Certainly not public safety, as drug users would just switch to using their now-untested substances in streets and subways and, again, some would die. Not the principle of accountability for wrongdoing; no one is profiting off these centers. If anything, OnPoint executive director Sam Rivera and his staff are laboring in extremely difficult circumstances out of a public-spirited desire to help.
Maybe this is Williams’ way of pushing for much-needed clarification and state and federal sanctioning of these centers, in which case it’s a dangerous bluff but he’s not wrong about the need. At this stage, we have ample evidence that the model works, yet neither Attorney General Merrick Garland nor Gov. Hochul have definitely thrown their weight behind the concept, with Hochul going the other way and declining to financially support the centers with funds that were specifically meant for opioid mitigation. They must all get with the program if they’re serious about preventing deaths.
