Staten Island DA Michael McMahon. Photo: Carmen Natale/ALM The Staten Island district attorney's groundbreaking diversionary program for opioid addicts is falling short in terms of combating the opioid epidemic because it excludes defendants with certain prior convictions, say drug law reform advocates and public defenders. Critics have raised their concerns about Staten Island's Heroin Overdose Prevention and Education program, which was unveiled in February 2017, as district attorney's offices in other boroughs are getting their own programs off the ground—Bronx justice system officials announced the Overdose Avoidance and Recovery program in December and Brooklyn District Attorney Eric Gonzalez announced the launch of the Collaborative Legal Engagement Assistance Response program in March. According to statistics from the office of Staten Island District Attorney Michael McMahon, 468 defendants who faced low-level drug charges have been referred to HOPE, of which 361 completed the program and had their charges withdrawn. About 5 percent of referrals have had their cases turned away, according to his office's count. But because it excludes defendants with felonies on their records, for every one defendant referred to the program, two are barred from entry, said Melissa Moore, deputy state director of the New York office for the Drug Policy Alliance. Additionally, she said, McMahon's office has taken a heavy-handed approach to prosecuting pushers, which potentially prevents them from receiving effective treatment if they are addicts themselves. Moore said McMahon is taking a “war on drugs” approach to the issue rather than fully embracing a rehabilitative approach and that, because people with past criminal histories tend to disproportionately come from communities of color, may provide wider access to white defendants. “The door really should be open to everybody who needs care,” Moore said. While the diversionary program in the Bronx has been in operation for several months, Moore said there isn't enough data available at this point to determine if some of the issues occurring in Staten Island are happening in the Bronx as well. But McMahon said there are drug courts available for defendants who are excluded from HOPE and defended his approach to the opioid crisis in his jurisdiction, which he said is a public health issue in addition to a public safety issue. “We have to be clear that people who are dealing, and if they deal death, then they will be prosecuted,” McMahon said. “This is a public health and a public safety issue. And if someone is selling illegal drugs, dangerous illegal drugs like fentanyl, and it is known who they are selling to then I'm going to lob a very punitive sentence at them. You can be damned sure of that.” McMahon's office was the first in the city to prosecute a dealer who sold a lethal dose on a manslaughter charge. Last year, his office brought second-degree manslaughter and criminally-negligent homicide charges against Stephen Cummings for selling fentanyl-laced heroin from a Staten Island barber shop that killed a 52-year-old man. Cummings' case is pending. His lawyer, Mario Gallucci of Helbock, Nappa & Gallucci, said Cummings has pleaded not guilty and that he has filed a motion to dismiss the indictment, arguing that the DA has not presented evidence to a grand jury that Cummings' wares caused the victim's death. "Just because my client bragged about his quality could be chalked up to 'mere puffery,'" Gallucci said. The judge in Cummings' case has yet to rule on the motion.

Christopher Pisciotta, the attorney-in-charge of the Legal Aid Society's criminal defense practice on Staten Island, said that in his judgment HOPE has proven to be effective and that McMahon expressed a willingness to expand HOPE when the program was launched to include more defendants, but that since then no further steps have been taken to grow eligibility.

Pisciotta said HOPE could be expanded by including defendants who have warrants or those who face charges that aren't directly related to narcotics but associated with criminal behavior driven by addiction, such as theft, shoplifting or trespassing.

“If you address the substance abuse, you could address the criminal behavior,” Pisciotta said.

According to a report from the Office of Court Administration, the number of referrals to the Staten Island Treatment Court, which accepts persistent misdemeanor and first-time felony offenders, fell from 434 in 2014 to 201 in 2016.

But Yung-Mi Lee, the supervising attorney for the criminal defense practice at Brooklyn Defender Services, told the New York City Council's justice system committee at a hearing last week that, while treatment courts have contributed to a decrease in the number of people jailed for drug charges, the courts are a “Band-Aid” for the opioid epidemic and that the treatment courts' rigid rules create a disincentive to participation. In an interview, Moore said that the treatment courts are also hindered by the fact that decisions about rehabilitation are being left to judges—a job that would be better suited for medical professionals. “It flies in the face of good science,” Moore said. “Those decisions should be made between a medical professional and a patient, not before a judge.”