Needle-Exchange Pilot Stung by Prick
The future of a state-approved anonymous needle-exchange pilot program is in the hands of Bexar Co. District Attorney Susan Reed.
At least that's the conclusion Texas Attorney General Greg Abbott seems to have reached in a long-awaited opinion his office released May 5. At issue is whether an amendment to the Legislature's 2007 omnibus Medicaid bill (Senate Bill 10) – allowing public health officials in Bexar Co. to implement a needle-exchange program – protects program administrators and participants from prosecution for possession or distribution of drug paraphernalia, illegal under the state's Controlled Substances Act. The text of the disputed needle law allows the state Health and Human Services Commission to provide "guidance to the local health authority" in Bexar Co. to establish "a pilot program funded by the county to prevent the spread of HIV, hepatitis B, hepatitis C, and other infectious and communicable diseases," which "may include a disease control program that provides for the anonymous exchange of used hypodermic needles and syringes." Lawmakers did not specifically exempt participants from prosecution, wrote Abbott, and thus that possibility remains. In fact, Abbott noted, the law doesn't even require that Bexar Co. actually include a needle-exchange program within whatever disease-prevention pilot program they decide to undertake. "On its face, the disease-prevention pilot program merely allows – it does not require – Bexar County to implement a needle- and syringe-exchange program," he wrote. "The word 'may' denotes discretion not to do something."
Still, the program could go forward, Abbott wrote: An "express exception" to prosecution "is not required" in order to get the exchange up and running. "[T]he possibility remains that prosecutorial discretion may be exercised in evaluating the facts and evidence of possession of drug paraphernalia to determine whether a criminal violation of the Texas [CSA] has occurred." And that would be fine and good (well, sort of – if you think it's OK to give one elected county official the power to essentially override the will of the Legislature) if Reed seemed inclined to use her discretion to help the program prosper. She doesn't. In fact, her office appears eager to put San Antonio needle-exchange program participants in jail. Indeed, it was Reed who derailed the start of the pilot program – initially slated to begin Sept. 1 – prompting state Sen. Jeff Wentworth, R-San Antonio, to query Abbott. "I'm telling [local officials], and I'm telling the police chief, I don't think they have any kind of criminal immunity," Reed told the San Antonio Express-News last summer. And in the interim, Reed has upped the ante. In January, police arrested three members, including 73-year-old lay chaplain Bill Day, of the Bexar Area Harm Reduction Coalition, which runs the area's relatively undercover needle-exchange program, for handing out clean needles to addicts. The three were charged with class C misdemeanor possession of paraphernalia. Now, coalition attorney Neel Lane says he's heard secondhand that Reed's office is talking about increasing the charges to class A misdemeanor distribution, which carries the potential of up to one year in jail and/or a $4,000 fine. To date, Lane said he has not been contacted by anyone in Reed's office. First Assistant D.A. Cliff Herberg did not return phone calls from the Chronicle requesting comment, but, ironically, he seemed to dismiss the notion that Reed's office actually has discretion to decide whether or not to prosecute: "Our critics think this is some sort of philosophical or moral issue," he told the Houston Chronicle. "It's not. We follow the law as written, not how we would like it to be."
The needle-exchange pilot program legislation came late in the 2007 session, authored by state Rep. Ruth Jones McClendon, D-San Antonio, after a bill with impressive bipartisan support to legalize anonymous needle-exchange statewide was killed by state Rep. Dianne Delisi, R-Temple (for more on Delisi's anti-needle stance, see "Needle-Exchange Bill Barely Hanging On," May 25, 2007). With the session waning, lawmakers took what they could easily get: approval for a small, geographically contained pilot program that could provide lawmakers with the data needed to convert the remaining needle naysayers over to the side of right in 2009. As Wentworth noted in his 20-page letter to Abbott, the one-for-one anonymous needle-exchange program is a harm-reduction strategy that seeks to reduce the spread of communicable diseases – including HIV and hepatitis C – by allowing intravenous drug users an opportunity to trade dirty needles for clean ones. It helps ensure the proper disposal of contaminated medical waste and protects emergency personnel who regularly come into contact with IV drug users. Moreover, it provides a point-of-access for users in need of rehab or other medical services.
The way lawmakers see it, it's also an easy way to save money. Where a clean needle costs pennies, the state spent more than $24 million in 2006 to care for individuals with hepatitis C; in 2005, the state spent more than $86 million caring for people with HIV/AIDS. In 2005, there were about 300,000 Texans living with hepatitis C, Wentworth wrote, and "most of them did not know it." And studies show that needle-exchange can reduce the spread of HIV by up to 30%.
Texas is the only state without legalized needle-exchange – though that doesn't mean harm-reduction needle programs don't operate in Texas. Instead, they operate under the radar and often in quasi-cooperation with law-enforcement officials who grasp the wisdom inherent in making sure that addicts shoot clean. Thus, advocates were encouraged last spring when Gov. Rick Perry signed into law the pilot needle-exchange program. And things seemed on track for the program to start up in the fall – that is, until Reed brought things to a screeching halt.
Abbott's ruling appears to confirm Reed's stance, although the law's supporters, including Wentworth, find Abbott's conclusions "absurd." "We're not in the business of passing bills that if people follow them, they would be charged with a crime," Wentworth told the Associated Press. Attorney Lane argues that Abbott completely ignored certain principles of "statutory construction" in his conclusion, notably, that generally where a conflict between two laws exists, the most recent – in this case, the needle-exchange law – serves essentially to override the conflicting portion of the older law: here, the CSA paraphernalia ban. To that argument, which Wentworth made in his Sept. 26 opinion request, Lane says Abbott took a "pass." The result, he says, is unfortunately – and, realistically – deadly; harm-reduction efforts in San Antonio have ceased since Day and his colleagues were cited in January. "The bottom line, and the tragic part of this, is that there are people being infected, as we speak, with HIV and hepatitis C," says Lane. "And there's no reason for it."