A Publication from The Kaiser Forums; Sponsored by The Henry J. Kaiser Family Foundation
Edited by: Jeff Stryker, Center for AIDS Prevention Studies University of California-San Francisco; Mark Smith, M.D., M.B.A. -

*One may overlook the fact that there are those who inject drugs other than psychoactive drugs. In addition to steroids, injection of vitamins is prevalent in some communities.27

The way needles and syringes are distributed also varies. The requirement that used equipment be traded in for new equipment is very common and, in some locales, has minimized the danger of discarded equipment. The sanitation department in Tacoma filed an affidavit in 1990 to this effect in a lawsuit involving the needle exchange program there.28 Programs also vary in how far they go in identifying, coding, and tracking needles to measure the extent of sharing and the degree of hepatitis and HIV infection. For example, researchers at Yale have developed an elaborate system that involves polymerase chain reaction testing of HIV residues in syringes returned to the New Haven exchange.29 Finally, programs vary in the aggressiveness of outreach and in how they seek and identify clients. Programs may take pains to preserve client anonymity in ways that make it difficult for researchers to follow clients over time.

One open question is how strong a link should be forged between needle and syringe distribution, and HIV counseling and drug treatment. Some programs have claimed success in part because of their nonjudgmental nature and an unwillingness to exhort clients to abstain from drug use. Still, if linking the provision of sterile injection equipment to counseling and education is possible without driving clients away, there are compelling reasons to do so.

Studies show that even when injection drug users have been willing to modify their drug-use practices, they have been somewhat reluctant to change their sexual practices.30 Advice about safer sex can be offered along with precautions regarding drug use; many programs that dispense bleach or needles and syringes distribute condoms at the same time. Many exchange programs also are forging more explicit links to substance abuse treatment and clinical care. The program in Tacoma is the largest local source of referral for drug treatment; in addition, it provides on-site screening for tuberculosis. Some programs also discuss and provide referrals for a broader range of social services, such as housing, employment, and family support.

The law poses a variety of obstacles to the implementation and operation of needle exchanges. The nonmedical use of narcotic drugs has been illegal in the United States since passage of the Harrison Act in 1914. Courts have recognized the broad powers of states to proscribe or regulate the sale, distribution, and use of addictive drugs.

* Courts also have upheld the police powers of the state to regulate drug-use paraphernalia, even when the materials in question, such as needles and syringes, have legitimate medical uses.

* However, the U.S. Supreme Court held that to punish the mere "status" of drug addiction is a violation of the U.S. Constitution's prohibition against cruel and unusual punishment. Robinson v. State of California, 370 U.S. 660 (1962).

Along with broad paraphernalia laws, eleven states have enacted statutes that specifically address needles and syringes. These laws generally make it a crime to sell a needle and syringe without a prescription, to prescribe a needle and syringe for a known addict, or to possess injection equipment for the purpose of illicit drug use. Such statutes are on the books in some of the states with the largest AIDS caseloads, including New York, New Jersey, and California. Under these regulatory schemes, wholesale druggists and surgical suppliers must keep accurate records of needle and syringe sales.

In many jurisdictions, HIV-transmission risks have led policy makers and prosecutors not to enforce paraphernalia and prescription laws. However, prosecutorial discretion is an imperfect solution at best. Federal and state paraphernalia laws may overlap. For prosecutorial discretion to be effective, a consistent message must emanate from the entire law enforcement hierarchy. From the prosecutor to the cop on the beat, the public-health and criminal-justice systems must operate in concert.31

More than twenty needle exchange volunteers have been arrested for violating laws against possession and distribution of drug paraphernalia. Many defendants have used their trials as a way to educate judges and the public about the rationale for needle exchange programs. Needle exchange defendants have been acquitted in all but two instances.

In virtually all of the trials, defendants have invoked the defense of necessity. The particulars of this defense vary from jurisdiction to jurisdiction, but there are certain common elements. Defendants must prove that although they knew they were breaking the law, they acted under a reasonable belief that they did so to avoid a greater and imminent harm, and that there were no other legal means to do so.*

The precedent-setting value of these cases is limited, however, because of their trial-level status. Such cases also are expensive and time consuming, as they involve expert testimony from drug-policy, HIV-prevention, and epidemiology experts. Broader legislative reform may be a preferable, long-term strategy. The Hawaii and Connecticut legislatures have authorized pilot needle exchange programs, requiring evaluative studies. Similar legislation in California was vetoed by Gov. Pete Wilson.

Until the past couple of years, there weren't enough data from the American experience to change minds on either side of this contentious debate.** The Institute of Medicine added the following caveat to its recommendations favoring greater needle and syringe availability:

The actual effects of increasing the legal availability of sterile needles and syringes in the U.S. are unknown. Almost no data have been collected on the relationship between the legal availability of sterile needles and the levels of drug use prior to the AIDS epidemic, and it is doubtful that data collected prior to the awareness of AIDS would be applicable today.1

Whether policy decisions regarding this issue are to be driven by research findings or by policy makers who are impervious to data and who refuse to doff ideological blinders will become apparent as more data emerge from U.S. programs.

* Decision and Order, New York v. Bordowitz, Criminal Ct. of City and County of New York, No. 90N028423 at 25 (June 24, 1991).

** Needle exchange and distribution programs have sprouted and flourished in many foreign locations. The failure in the United States to reckon with the data from these programs is attributable, at least in part, to jingoism. Nevertheless, international comparisons can be tricky. The patterns of drug use differ over time and among countries, as does the response of the health care and criminal justice systems in each country. The demographic and sociocultural profile of drug users also varies.
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