Bexar Co. District Attorney Susan Reed cares about you. Really, she does. So much so that she’s single-handedly derailed the start of the confidential needle-exchange pilot program that state legislators passed this spring, with threats that individuals facilitating the exchange as well as drug users availing themselves of the public health project would likely be subject to prosecution for possession of drug paraphernalia. “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 in August. “That’s the bottom line. It has nothing to do with whether they do it or don’t do it – other than if you do it you might find yourself in jail.”
With Reed invoking the jailhouse boogeyman, the needle-exchange start date, Sept. 1, came and went, forcing state Sen. Jeff Wentworth, R-San Antonio and chair of the Senate Jurisprudence Committee, to pen a request for a legal opinion, asking state Attorney General Greg Abbott to weigh in on whether it is “self-evident from the context and language” of the needle-exchange law that an “exception or defense” to prosecution was “intended” by lawmakers – or, if there’s somehow something more to Reed’s embarrassing Wacky World of Criminal Law than meets the rational eye. (A 20-page PDF of Wentworth’s request is available here.)
At issue is an amendment to the state’s Medicaid legislation that would allow Bexar Co. health officials to establish a one-for-one anonymous hypodermic-needle-exchange-program – a harm reduction program that seeks to reduce the spread of communicable diseases, such as HIV and hepatitis C. Texas is the only state without some form of legalized needle exchange, which allows intravenous drug users to trade dirty needles for clean ones – a way to ensure proper disposal of hazardous medical waste and, as envisioned by state lawmakers, a way to provide confidential health screening for various diseases. Harm reduction strategies are serious business and can help the state save a lot of money by identifying people at risk for certain diseases and by directing them to available medical resources. (For more on the battle over needle exchange in Texas, see “Needle-Exchange Bill Barely Hanging On,” May 25.) According to Wentworth’s request, in 2006 the state spent more than $24 million in 2006 toward caring for individuals with hepatitis C; in 2005, the state spent more than $86 million treating people with HIV/AIDS. In 2005, there were approximately 300,000 Texans living with hepatitis C, he wrote, and “most of them did not know it.”
The plain truth is this: Whether we pay now, or pay later, we always end up paying for health care – so, it’s better to be proactive and aim for prevention than it is to be reactive and simply cut taxpayer funded checks, right? Logically, yes, but for Reed logic is apparently on a vacation. In Reed’s world, it appears that neither the plain language of the law, nor the so-called “public duty” defense to prosecution would protect health workers or drug users from facing possible prosecution for paraphernalia possession under the Texas Controlled Substances Act. Reed has done a good enough job derailing the needle-exchange train that Bexar Co. officials have put the program on hold until Abbott weighs in – jeopardizing the chance that any real measurable results will be available for law makers to consider in 2009. “This prosecutorial interpretation of the new law would create an absurd result,” Wentworth wrote, “in that it suggests the Legislature enacted the pilot program with the intent or awareness that it would place persons associated with the program in the position of committing a criminal offense under the [Texas CSA].”
Absurd? That’s Susan Reed!
A decision from Abbott’s office is expected by April.
This article appears in October 5 • 2007.