[Is TDCAA now the equivalent of the UN for criminal justice matters?]

DA warns of needle exchange problem

Don Finley
Express-News Medical Writer

In a move that could threaten a pilot syringe exchange program for drug addicts in Bexar County, District Attorney Susan Reed has warned local officials that the legislation authorizing it doesn't trump the state's narcotics laws.
"I'm telling them, and I'm telling the police chief, I don't think they have any kind of criminal immunity," Reed said. "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."

An attorney general's opinion likely will be sought to resolve the issue, Reed and others said, which at best could delay the start of the program until sometime next year.

An amendment attached to Medicaid legislation by state Rep. Ruth Jones McClendon, D-San Antonio, in the waning hours of the legislative session authorized the pilot program here, after her bill that would have permitted such programs statewide died in committee.

Reed said language in the statewide bill created a legal defense to prosecution under Texas laws prohibiting drug paraphernalia. The amendment authorizing the pilot program included no such defense.

McClendon said she might seek an attorney general's opinion on the matter, which could take as long as six months. That would make it difficult for local authorities to gather enough evidence of the program's success should it prove successful to show the Legislature when it meets again in 2009. Supporters hope a successful local program will ease passage of a statewide bill next time.

Instead, McClendon said she is considering a meeting with the Texas District and County Attorneys Association.

"The Legislature had a purpose for this program, and the purpose for this legislation clearly was to allow a pilot program to proceed without prosecuting those who are managing the program and those who need the benefits of this," she said.

McClendon pointed to an exchange on the Senate floor between Sen. Jane Nelson, R-Lewisville, who introduced the Medicaid bill, and Sen. Bob Deuell, R-Greenville, who told her: "I did want to establish some legislative intent on the amendment regarding needle exchange. Is it your intent that, notwithstanding any other statutes, Bexar County will be allowed to legally operate a needle exchange program under the provisions of the bill?"

"That is correct," Nelson replied.

Aurora Sanchez, the county's executive director of community and development programs, who is overseeing the committee designing the program, said the issue needs to be resolved before it can go forward.

"If it takes three months or six months to get the attorney general's opinion, that's what's going to have to happen," Sanchez said. "Because none of us wants to go to jail."

The amendment would have allowed a local program to begin Sept. 1.

While Reed said she had some personal misgivings about syringe exchange programs in general ? "When you acknowledge that they are purchasing controlled substances, I'm just not sure that's a government function for taxpayer money" ? she said she was satisfied that the language in the original bill was sound.

McClendon vowed to fight.

"We're going to approach all avenues because this is something very serious. This is a life-saving program that's going to be replicated across the state, and (Texas) being the only state in the nation that does not have the opportunity to have a program of this sort is just ridiculous."

What's the beef? The clear legislative intent was for this program to proceed as a trial program. It is a great idea, and the monies we as a society pay for uninsured medical care for HIV and Hep indigent patients greatly outweighs the cost of the needles.

Doesn't this exchange pretty much clarify the matter for a speedy AG opinion?

McClendon pointed to an exchange on the Senate floor between Sen. Jane Nelson, R-Lewisville, who introduced the Medicaid bill, and Sen. Bob Deuell, R-Greenville, who told her: "I did want to establish some legislative intent on the amendment regarding needle exchange. Is it your intent that, notwithstanding any other statutes, Bexar County will be allowed to legally operate a needle exchange program under the provisions of the bill?"

"That is correct," Nelson replied.

It's not like the IV abusers will not abuse IV drugs because they are not getting clean needles. They'll just keep using dirty ones. The multi-million dollar question is will the addicts avail themselves of the program, as many other states claim they do?

I don't know if this is a viable solution to the HIV and Hep epidemics that rage amongst the IV using population, but it sure makes sense to try it and see if it helps. It seems common sense that if we can prevent some of these folks from burdening our already bustin'-at-the-seams public healthcare system, more money could then be spend on indigent health care for those who did not catch their disease through IV drug abuse.

Not to mention saving hundreds or thousands from the horrible disease process involved in these diseases.

Just going out on a limb here, but I would guess that the elected DA of Bexar County doesn't feel that it is her job to declare immunity from prosecution in the absence of actual law saying so. While the statements of legislators are nice, they are not supported in any manner by an actual, written defense. Legislative intent, alone, is not law. Legislative intent, when combined with an ambiguous statute, might help. Here, there is no defense or immunity, ambiguous or otherwise.

We went through the same problems when the legislature wrote a bad version of a defense to the unlawful carrying a weapon law. It was still a defense, which applies at trial, not at the point of arrest.

I kind of like it when prosecutors stick to the applying the law rather than making it up to suit situations.

Well, I certainly agree she should await an AG opinion. But the leg intent seems clear.

Just more business the lege should have taken care of properly. That program is a long time coming and many feel it will do some real good.

"I kind of like it when prosecutors stick to the applying the law rather than making it up to suit situations."

Isn't that what critics accused many prosecutors of doing with the ucw law from the previous session?

[This message was edited by GG on 08-02-07 at .]

It seemed to me like people wanted prosecutors to apply that horrible UCW presumption only when it was someone else busted for it. I used to get that a lot when I was a teacher, too..."Yes, we want you to be strict, because ALL THOSE OTHER PEOPLE are dangerous. Not ME, or my kids, or my friends--for us, the laws don't apply because WE are good people." I saw that critics wanted the UCW applied only to the "bad people" and that, of course, is in the eye of the beholder.

If the lege wanted syringes legal, they should say so. Just like they wanted guns legal in cars and now they have said so in a law that we can apply equally to everybody's friends.

quote:

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Originally posted by smj:
If the lege wanted syringes legal, they should say so.

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Texas is the only state that doesn't allow syringe exchange programs, which are meant to curb the spread of diseases through intravenous drug use by giving users clean hypodermic needles.

S.F. scrambles to fix needle-swap program after public outcry
Heather Knight, Chronicle Staff Writer
Friday, August 3, 2007

City officials and nonprofit agency leaders, responding to an outcry over used syringes littering parks, say they are looking at ways to reform San Francisco's needle-exchange program - including locked, 24-hour syringe drop boxes and technologically advanced syringes.

The city's needle-exchange program gives out 2.4 million needles a year and receives 65 to 70 percent of them back after they're used. Other cities - including Portland, Seattle and jurisdictions throughout New Mexico - have return rates of well over 90 percent.

In San Francisco, The Chronicle reported recently, many unreturned needles wind up in parks, playgrounds and other outdoor expanses.

"We can recover a lot more needles," said Mark Cloutier, executive director of the San Francisco AIDS Foundation, which runs most of the city's needle-exchange sites. "We understand it's a public health problem, and we're excited about the attention that's happening."

Cloutier said a locked, 24-hour biohazard drop box will be installed on Sixth Street within the next six weeks. It will be available for anonymous needle drop-off any time, sort of like drop boxes for library books or rented movies. The AIDS Foundation likely will test it for six months but expects to open others around the city.

"We're not going to put it in the middle of Union Square," he said. "It's where people can experience some anonymity."

As it is now, injection drug users usually return their used syringes during the hours needle exchanges or health clinics are open. The AIDS Foundation operates seven exchange sites around the city, each of which is open two to four hours a week.

Public health officials also will meet soon with manufacturers of retractable syringes - in which the needle fully retracts into the syringe's barrel after one injection. These are considered much safer than the syringes commonly used and would prevent children or others who pick up dropped syringes from infecting themselves.

The retractable syringes cost seven times more than the common ones - an average of 35 cents compared with 5 cents - but might prove to be worth the extra money, according to Dr. Mitch Katz, the city's public health chief.

Supervisor Ross Mirkarimi still has some retractable syringes in his office desk - left over from the board's discussion two years ago of switching to the new syringes. At the time, they were deemed too pricey.

Mirkarimi said Thursday that he thinks the Public Health Department has been slow to deal with the needle problem but that a switch to retractable needles would be better late than never.

"This would be an apt opportunity for the city to pursue this option," he said.

Other options are on the table, too.

Tracey Packer, interim director of the health department's HIV Prevention Program, said officials are looking at providing homeless outreach workers with biohazard boxes to carry with them, giving users of the needle-exchange programs small biohazard packs that can carry 10 used needles at a time and better educating users about needle safety.

Packer said the city needs more drop-off sites, and fire stations and soup kitchens could be good options.

The San Francisco needle-exchange program was begun in 1992 under Mayor Frank Jordan. The Public Health Department contracts with the AIDS Foundation, the Homeless Youth Alliance and Tenderloin Health to run the exchanges at a total of $850,000 a year.

But, as reported recently by The Chronicle, not everyone is returning the needles, and parents are sharing horror stories about their children finding needles in parks and playgrounds.

Supervisor Bevan Dufty said Thursday he successfully advocated for the closure of a play area at the Eureka Valley Recreation Center because children were finding needles in the sand.

"I have a child, and I want my child to be able to play in the sand, but I no longer felt comfortable having a playground feature be dangerous like that," he said. "I'm open to ideas."

Mayor Gavin Newsom last week asked Katz to come up with ways to make needle disposal easier and safer. The issue is politically tricky because disease prevention and social services are important to San Franciscans, but so are public safety and clean parks and playgrounds.

"This is a difficult situation, but we can't end our needle-exchange program," said Newsom's press secretary, Nathan Ballard. "It saves lives."

The health department is looking at needle-exchange programs in Portland, King County, Wash., which includes Seattle, and the entire state of New Mexico. Drop boxes seem to have proven especially effective.

New Mexico began its program in 1998 and has 24 drop boxes around the state, mostly outside health department offices and nonprofits. It's about to get six more.

Bernie Lieving, who works in the state's public health department's infectious disease bureau, said the drop boxes have been popular not only with intravenous drug users but also with diabetics and others who use needles for medical reasons.

"They're available 24 hours, they're locked, they're bolted to the concrete," he said. "The only problem we've had is people backing into them with cars."

The drop boxes have helped the department achieve a 97 percent return rate - and have never been vandalized.

"Why would somebody want to break into a medical waste box and get out used syringes?" he asked. "That doesn't make sense."

One thing just about everybody associated with the needle-exchange program in San Francisco agrees on: It is saving lives and will continue as a city program.

Cloutier said six years ago, 16 percent of new cases of HIV in the city were attributable to injection drug use. Now, the figure is down to 0.5 percent.

"We have proven in San Francisco that this largely solves the problem," he said. "Needle exchange has been enormously successful."

GG--I understand the positives to the program, which in itself is certainly worth trying.

My point is, why is it legal for the government to hand out syringes FOR THE PURPOSE OF ILLEGAL DRUG USE but not legal for a citizen to possess it for that same purpose? Especially when just possessing it is a Class C but delivering it with intent for injection is a Class A?

So maybe possessing and delivering the syringes themselves are not dangerous enough in comparison to the health risks presented to criminalize the actions. And as in JB's SF article, if the possession was not illegal, maybe people would be more inclined to return them without fear of prosecution to the agencies that handed them out.

My issue is not with the program itself, but with policy promises from legislators that conflict their own laws. I would not feel comfortable at all prosecuting someone for Class C possession of paraphernalia if the defendant came in and said he got it from a government agency.

Can we prosecute for possession of the trace amount of illegal drugs in the needles? Or, is the defendant also getting immunity for that felony, too?

Immunity for possession of illegal drugs?--I would say no way.....unless the government GAVE the drugs out and drug users were encouraged to get them from the government rather than other places.

quote:

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Originally posted by smj:
Immunity for possession of illegal drugs?--I would say no way.....unless the government GAVE the drugs out and drug users were encouraged to get them from the government rather than other places.

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I'm no expert at all on the subject, just another guy on the street with an opinion.

But didn't San Francisco, L.A. and N.Y.C. (and probably many other locales) have some success with reducing drug-seeking crime related behaviors since the 60's by operating methadone clinics? I don't know if they were public health clinics or non-profits funded by government grants, but in the end the government paid for it.

And I don't mean to unduly dog the legislators, or most of them anyway. The majority work hard and are committed to their positions. I know those who got this particular provision passed worked very hard and have worked hard for years to make it a reality, against stiff opposition. And perhaps, in the midst of all that conflict and drama, the affirmative defenses got left out or forgotten.

I always thought the legislative intent was the deal when dealing with an ambiguous legal issue. For many years, I was fortunate to work as a trial prosecutor with a gifted chief appellate prosecutor in Fort Bend County who often spent hours upon hours listening to the tapes of legislative sessions on various hard-core criminal legal and procedural issues to give advice on difficult issues to the trial lawyers BEFORE trial. For years and years he has done this. Methodically searching legislative histories for the specific intent of each issue.

His appeals always do very well.

[This message was edited by GG on 08-03-07 at .]

[This message was edited by GG on 08-03-07 at .]

[This message was edited by GG on 08-03-07 at .]

For an interesting take on the value of legislative history, click here.

The whole legislative history question is fascinating because I don't think there is really a good answer.

Clearly there are benefits to having some explanation to complex areas....but that article cites the tax code as an example of the benefits of interpretive history!! MHO is that it should not require a CPA to file taxes and it should not require a criminal attorney who has done research into legislative intent to tell a person whether or not they are illegally possessing drugs or guns or paraphernalia.

If legislative intent is going to trump the plain reading of a statute, then why bother with having statutes at all?

These situations present a choice between two evils -- being stuck with poorly-drafted legislation, or giving judges the ability to say what they think the law should be. Having seen all too much of the latter type of evil over the years, I'm resigned to preferring the lesser evil of living with what's on paper until it can be fixed by the legislators who made the error in the first place.

If there are no consequences for mistakes, then mistakes will continue, and if a legislative body isn't held to what it votes for, then the result will inevitably be more rushed, half-baked, incorrect legislation. I see enough of that as it is without creating incentives for them to do more of it!

Very well stated, Shannon. Amen.

Needle swap advances

Web Posted: 08/15/2007 11:19 PM CDT

Don Finley
Express-News Medical Writer
Despite a warning from District Attorney Susan Reed that the law authorizing it was faulty, the Bexar County Commissioners Court voted unanimously Wednesday to move forward with a pilot syringe exchange program aimed at drug addicts, and expressed hope the legal issues could be worked out.
"I think we need to budget it in this budget, on the assumption that the program's going to be cleared � and if it's not, it's not," County Judge Nelson Wolff said before the court approved spending $60,000 for a staff position and planning costs, beginning in October. The program is expected to cost more if it becomes operational, although organizers will seek grant funding from private organizations.

A working group of health and government officials is designing the exchange program with a Jan. 1 launch in mind. Advocates hope that if a program here were successful, it would be easier to pass a statewide program during the next legislative session. Texas is believed to be the only state without some sort of legally authorized program.

An amendment attached to Medicaid legislation by state Rep. Ruth Jones McClendon, D-San Antonio, authorized the pilot program here after another bill that would have permitted such programs statewide died in committee.

Reed has said while language in the statewide bill created a legal defense to prosecution under Texas drug laws, McClendon's amendment did not.

"And Judge Reed, as the person in charge of enforcing the law in Bexar County, feels obligated to enforce the law, absent any defense," said Kelsey Menzel, an assistant district attorney who advises the Commissioners Court.

But Janis Reinken, an attorney and chief of staff for McClendon, told commissioners that in researching the matter further she believes that the Texas Penal Code already contains a defense for government agencies "on the basis of public duty to protect public health and safety. It has a defense built into it for need to prevent imminent harm. And all of those things are present in the situation we have here."

Wolff encouraged both sides to meet again to try to resolve differences, to avoid seeking an attorney general's opinion, which could take months.

No one spoke against the program before the vote, and several spoke in favor of it � including Precinct 2 Constable Jimmy Willborn, who worked as a narcotics officer earlier in his career and saw fellow officers accidentally stuck by dirty needles during searches.

"At least if they're replaced, the opportunity for hepatitis and AIDS would be reduced," Willborn said. "At least it would be reduced for the police officers that are involved. I think that this is a great idea."

Speaking on behalf of the Texas Medical Association, which supports syringe exchange, Dr. Janet Realini said the program would go beyond preventing drug addicts from getting sick and protect their families as well.

"I have had to tell young women � two young women in the last year or so � that they have tested positive for HIV," said Realini, medical director of the city's Project Worth program. "And every day I remember the look of shock and fear on their faces. Neither has done any IV drug use or shared needles. Neither has been unfaithful to her husband. They just happened to be in love with someone who has a drug problem."

Dr. Fernando Guerra, director of the health district, said that of some 200 new HIV infections in Bexar County last year, roughly 10 percent injected drugs. Add to those several thousands of hepatitis C cases in recent years, and "you can appreciate the burden of disease and the high cost," he said.

sounds like a broad use (aka stretch) of the term "imminent harm."

If the necessity defense (PC 9.22) covers it, then why doesn't that apply statewide right now? Doesn't that mean any county could run a needle-exchange program, with or without the state's permission?

If preventing HIV and Hep-c do not constitute imminent harm, what would, SMJ? Remember, we're not just talking the addicts here, but the collateral victims as well (spouses, significant others, and sadly, the children born with these diseases from infected parents).

Well, GG, with that sort of thinking there are lots of other things that social activists could do and claim the defense. That would mean that any program, even those that are clearly illegal, are justified because an individual draws the conclusion that he/she is doing some greater social good. Seems to me that some anti-abortionists have attempted to use that defense when trespassing on clinics or even when shooting doctors. What is the distinction?