NEEDLE EXCHANGE PROGRAMS: Considerations
for Criminal Justice |
“Needle
exchange programs can be an effective part of a comprehensive
strategy to reduce the incidence of HIV transmission
and do not encourage the use of illegal drugs”
-HHS
Secretary Donna Shalala, 1998
“The National Drug Control Strategy focuses on the
need for drug treatment
to help addicts free themselves of addiction and it’s
terrible health and social consequences. Federal treatment
funds should not be diverted to short term harm reduction
efforts like needle exchange programs.”
“Drug Czar”
Barry McCaffrey, 1997.
Without a doubt, reducing the spread of HIV is a national priority. These statements, however, illustrate the
challenges facing public health and public safety regarding the issue of Needle Exchange
Programs (NEPs) – one strategy in a mosaic of comprehensive HIV prevention programs
designed to address HIV infection among injection drug users. This paper will provide law enforcement and
criminal justice professionals with information about:
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Why the Controversy?
Striking a balance between
“feeding an addiction” and preventing the spread of a fatal disease seems to be
the core struggle police officials have with NEPs. The
dilemma for law enforcement is the possibility of having to enforce laws restricting an
intravenous drug user’s (IDU) access to clean needles, while at the same time
acknowledging that these very restrictions contribute to the spread of HIV in their
community.
To be caught
between a public health crisis and the need to appear that they are not backing away from
enforcement of illegal drug use is troubling for police.
Contributing to this controversy is conflicting information and data, community
standards, the concern about the “message” given to children, and often the
absence of a cohesive, coordinated, and comprehensive local policy to address the
community’s drug abuse issues.
Some police
executive see HIV/AIDS prevention among injection drug users as strictly a public health
issue and have left prevention to their public health colleagues, avoiding debate on the
more controversial issues. Other police
executives have joined with their local public health officials in cooperatively
advocating for prevention and treatment options and resources. Still others have become
involved, both personally and as an agency, in opposing certain prevention strategies for
IDUs, including NEPs. Whatever the path
chosen by the law enforcement official in the community’s deliberation over
prevention and treatment choices, the leadership role of the police executive is
undeniable in this debate. |
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In the United
States between 1.1 and 1.5 million people inject drugs. 1
According to the Centers for Disease Control and Prevention, more than one-third (36%) of
all reported AIDS cases are due directly or indirectly to injection drug use as are 31% of
recently reported cases. 2
It is estimated that 50% of new HIV infections are among intravenous drug users. 3 In
addition, minorities and women have been disproportionately impacted by HIV due directly
or indirectly to injection drug use. The
costs in health care, lost productivity, accidents and crime? More than $50 billion a
year, according to the Center for AIDS Prevention Studies at the University of California,
San Francisco. The human toll is
incalculable.
One hundred
and thirteen NEPs are operating in at least 30 states, some legal, some not. Some receive state funding, others local funding,
some operate on public and private contributions. 4 In 1997, NEPs reported that 17.5 million
syringes were exchanged. 5
In 1998, the estimated number of syringes exchanged was 19.4 million, an increase
of almost 11% from the previous year. 6 |
Increasing
Community Health Through Collaboration Between Public Health and Public Safety
Effectively addressing the “twin
epidemics” of injection drug use and HIV/AIDS requires a cohesive and concerted
partnership between public health, the community and public safety professionals. These groups acknowledge common goals: reduce injection drug use and reduce the spread of
HIV. Additional common objectives include
implementation of strategies such as early intervention, outreach to addicts to encourage
them to accept treatment, increased availability of on-demand treatment, and access to
risk reduction information.
Perhaps the
most controversial initiative to address the rule of injection drug use in the spread of
HIV has been NEPs. NEPs allow injection drug
users to exchange used needles for clean ones. In
many communities, there are treatment professionals involved in the NEP who provide
referrals to drug treatment, medical care and other resources, some of which are offered
at the site of the NEP. NEPs are designed to address the problem of sharing used needles
and syringes, which contributes to the spread of HIV and other blood borne infections.
Why do drug
abusers continue to inject drugs and share needles? There
are several factors including the power of addition, the lack of treatment beds and
services, and the scarcity of clean needles and syringes.
At any one time it is estimated that 85% of IDUs are not in drug treatment. 7 There
is a large unmet need for drug treatment beds and resources (not including treatment for
alcohol abuse). 8 The
scarcity of clean, sterile needles means that IDUs use syringes multiple times, share
needles with other drug users, or use dirty needles they find in areas of high drug use. Therefore, other harm reduction options, including
needle exchange, are needed for those who injection drugs.
For a definition of “harm reduction”, see the Glossary.
IDUs may make
decisions about seeking sterile needles based on numerous factors including how the local
police enforce drug paraphernalia laws and the ease with which needles are available. If the search for a clean needle is time consuming
and carries a risk of incarceration, the IDU’s decision may be to forego a clean
needle. A female heroin addict was “asked why she did carry sterile syringes to use
when she injected drugs” “Because, she answered, I would rather get AIDS than go
to jail.” 9
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Like Secretary Shalala, many public health and medical organizations endorse
NEPs as an effective component of a comprehensive HIV prevention program. The organizations supporting NEPs include:
American Medical Association
National Academy of Sciences
American Public Health Association
National Institute of Health, Consensus Panel
Centers for Disease Control and Prevention
American Bar Association
United States Conference of Mayors
American Nurses Association
American Pharmaceutical Association
Several public
safety membership organizations, however, following the lead of Drug Czar Barry McCaffrey,
have rejected NEPs maintaining that addicts need treatment, not equipment to further their
drug abuse. Opponents of NEPs also believe
the presence of NEPs endangers law abiding citizens and potentially damages neighborhoods,
and children who see the government’s support of NEPs may view this as acceptance or
endorsement of illegal drug use. |
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A review of
how needle exchange programs became a strategy in HIV/AIDS prevention for IDUs is helpful. NEPs evolved in the U.S. as the role of injection
drug use in the spread of HIV became clear.
In 1984, the
first NEP was started in Amsterdam, Netherlands, to address the spread of Hepatitis B. To years later, sterile injection drug equipment
was first distributed in the United States. In
1988, the first U.S. NEP was established in Tacoma, Washington.
What is an
NEP and How Does it Operate?
There is not
one way to distribute clean needles to IDUs. Ideally,
NEPs offer IDUs a non-threatening, public location to bring a dirty needle and exchange it
for a sterile one. At the same time, users
can be encouraged and supported in taking advantage of treatment options, medical care and
other services. In fact, the United States
Conference of Mayors suggests that referral to treatment is perhaps the most overlooked
and most vital role NEPs play. 10 Of the 110 NEPs surveyed in 1998, many
reported providing a wide range of both medical and social services. Among the medical services provided were HIV
counseling and testing (64%), Hepatitis C counseling and testing (24%), Hepatitis B
counseling and testing (21%), medical care (19%), Hepatitis B vaccine (16%), TB screening
(15%), and STD screening (13%). On-site
social services provided included food (36%), assistance in enrolling in welfare and/or
Medicaid (25%), transportation (23%), legal assistance (16%), housing services (16%), and
nutrition/vitamin therapy (13%). 11
Three major
trends illustrate how NEPs have coming into being:
Civil disobedience, designed to challenge
existing law and provide IDUs with sterile equipment even when illegal, marked how some
NEPs got started. This approach brought NEPs
into the news and public consciousness and began to underscore the connection between
injection drug use and the spread of HIV disease. Ultimately,
some NEPs were established after much community coalition-building.
Gradual acceptance.
Some NEPs that were once illegal have been legitimized and actually receive
funding from local governments. In a 1998
survey, 25% of the NEPs responding indicated their status as
“illegal-underground”, with another 22% indicated their status as
“illegal-tolerated.” 12
Toward legitimacy – the funded model. Several NEPs now get local, state government
and/or foundation funding. Of the 110 NEPs
responding to a 1998 survey asking the source of their funding, some from multiple
sources, 34 indicated they were receiving state funding, 15 city funding, 12 county
funding, 53 were funded by private foundations, 30 funded by individual donations, 3 by
corporate donations, and 19 indicated no specific funding source. 13
Federal funding?
The issue of federal funding for NEPs has been a complicated one. There have been five different bans on the use of
federal funds for NEPs. In 1998, Health and
Human Services Secretary Shalala supported lifting the ban on direct federal funding for
NEPs, and Drug Czar Barry McCaffrey, opposed
it. Ultimately, the Clinton administration decided to continue the ban reasoning that it
was best to have local communities use their own dollars to support NEPs. Although the federal ban remains on funding for
NEPs, federal funds are used by researchers to summarize current information and collect
new data so that communities can construct the most successful programs possible to reduce
the transmission of HIV, while not encouraging illegal drug use. 14
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What does the scientific research tell
police executives about the impact of NEPs on illegal drug use, access to treatment, the
spread of blood borne diseases, community
safety, and the behavior of IDUs?
Scientific
research in the last decade suggests several public health benefits of NEPs including: reduction in risk behavior; reduction in the incidence of HIV and other blood
borne infections; and greater access to drug
treatment and other HIV prevention services. 15 Indeed, after reviewing all of the research, HHS
determined “that there is conclusive evidence that needle exchange programs, as part
of a comprehensive HIV prevention strategy, are an effective public health intervention
that reduces the transmission of HIV and does not encourage the use of illegal drugs. 16
Risk Reduction.
Behaviors of IDUs before and after participating in a NEP have been compared. Studies reveal a significant drop in high risk
behavior. There is less sharing of drug
paraphernalia and ore use of sterile needles. In
Baltimore, when comparing behaviors over a two week period following enrollment in the
NEP, based on self-reporting the lending of used needles decreased from 34 percent to 15.5
percent. 17 So
did the borrowing of syringes (down from 23.2 percent to 11.1 percent). 18 Studies
in New York, Portland and San Francisco, where NEPs operate, report level or decreased
injection drug use. 19
In March 1997, the National Institute of Health reported that NEPs “show a
reduction in risk behaviors as high as 80% in injecting drug users, with estimates of a 30
% or greater reduction of HIV.” 20·
Incidence reduction. Recent studies described in the National Research
Council’s review of NEPs, have found direct evidence of substantially lower rates of
new HIV infection among New York City’s IDUs. 21 Researchers credited the New Haven NEP with a 33
percent reduction in HIV incidence. 22 In Baltimore, after eight years of follow-up, HIV
incidence decreased 35 percent. 23 The connection between NEPs and reduced infection
is not limited to HIV. In Pierce County, Washington, research indicates that Hepatitis B
and C cases attributable to injection drug use declined by more than 75 percent within two
years after a NEP was established. 24 These findings suggest a community-wide effect of
the NEP in Baltimore. 25
In Hawaii the state department of health funds the NEP. In addition to the needle exchange, the program
operates a centralized drug treatment referral system, a methadone clinic and a
peer-education program that uses IDUs who use the NEP to reach IDUs who do not. The results of Hawaii’s program? Rates of HIV among IDUs have dropped from 5% in
1989 to 1.1% in 1994 -1996. From 1993 through 1996, 74% OF Hawaii’s NEAP clients
reported no sharing of needles. Additionally,
only 18% of The AIDS cases reported in Hawaii during 1997 were related to drug injectors,
as compared to one-third throughout the rest of the United States. 26
The bigger picture. NEPs serve as conduits to drug treatment and
other HIV and drug prevention services. They
have become a “necessary component of a broader, more comprehensive HIV prevention
plan.” 27 In
Baltimore, for example, the number of IDUs participating in drug treatment went up from 8
percent to 18.8% percent. 28 In Baltimore, when comparing crime trends in NEP
areas to non-NEP neighborhoods, no significant differences were found in any drug-related
arrest categories, such as drug possession, economically motivated crimes, resisting
arrest or violence. 29 In
fact, no differences in the incidence of crime were found at all. 30
The scientific community’s support
for NEPs offers a bright star in the constellation of
HIV prevention for injection drug users. The benefits of NEPs, however, are not
limited to IDUs and the public at large. Criminal justice has realized some benefits. The benefits are noted by Fred H. Lau, San
Francisco Chief of Police, in a letter to HHS Secretary Donna Shalala:
“Of significant importance
to our officers is the positive impact that needle exchange has had on public safety. Offices report that needle sticks are less likely
to occur during routine “pat-downs” because exchange syringes tend to be capped. This fact, in addition to removing dirty syringes
from the streets, thus removing potentially dangerous biomedical waste from the community,
and providing participants with referrals to health care and drug treatment programs
certainly help prove that the needle exchange program is beneficial to the public health
and safety in our community.” March 1, 1998.
Legal Considerations
An
overview of the legal issues associated with NEPs provides a perspective for law
enforcement executives. This overview may
also provide a frame of reference as to how NEPs are becoming acknowledged as a legitimate
option for addressing a public health crisis. Having
a NEP as part of an HIV prevention strategy is consistent with public health experts’
advice on achieving harm reduction. Yet,
following this advice may have legal consequences. In states where NEPs are not legal,
program staff and IDUs face arrest and prosecution for possession of drug injection
equipment. In addition, arrest with this
equipment could lead to charges for possession of drugs if there is enough residue on the
syringe or needle.
The most
recent survey of NEPs found that, as noted earlier, 25% of the 100 programs responding
were “illegal-underground,” meaning that they operate in a state with a
prescription law and do not have formal support of local elected officials. Twenty-two percent (22%) of programs reported that
they were “illegal-tolerated,” meaning that they operate in a state with a
prescription law and received a formal vote of support or approval of a local elected
body. Fifty-three percent (53%) of programs
considered themselves to be “legal” meaning they operate in a state that has no
law requiring a prescription to purchase a hypodermic syringe or has an exception to the
law allowing the SEP to operate. The survey
further reported that the number of “legal programs” has grown from 33 in 1995
to 59 in 1998l. The “illegal-tolerated” programs have grown from 19 to 24 in the
same time period, and the “illegal-underground” programs had increased from 8 to
27 during the four years. 31
Those who
advocate for NEPs have used several legal strategies to keep operating: (1) arguing that greater public health interest
trumps the drug paraphernalia laws, an argument supported by several courts; (2) using a
“necessity” defense in criminal cases; and (3) getting municipal officials to
declare a “public health emergency.”
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Judicial
Declarations. Wen public health and public safety officials disagree on the use
of NEPs; courts have decided which set of laws should take precedence. This helps avoid
having two governmental agencies undermine each others’ goals and programs. 32 This was the
strategy used in the State of Washington, for example, where courts, including the state
Supreme Court found that certain state statutes empowered the health department to prevent
the spread of blood borne pathogens. 3
The
“Necessity” Defense. In defending against prosecution, some NEPs have
argued that they “acted out of necessity . . . [claiming their] actions are
legitimate because they were necessary to avert a greater harm . . . the imminent danger
of needle-borne transmission of disease." 34
Elements of this defense are: (1) the action was necessary to avoid imminent danger
to a person or the public; (2) the harm causes by the action is not disproportionate
to the harm avoided; (3) the defendant acted under a good faith belief that the action was
required to prevent a greater harm; and (4) the defendant believed that his/her actions
were reasonable at the time. 35 Courts have come to different conclusions in applying this
defense. Courts in New York and New Jersey have upheld the defense in the context of
NEPs while the Massachusetts Supreme Judicial Court refused to allow the defense to be
considered.
Medical
Emergency. Several municipalities in California have declared local states of
emergency to allow NEPs to operate. The legal viability of this strategy remains
unclear: “State law takes precedence over local law, so technically, state drug
paraphernalia and syringe prescription laws continue to apply.” 36
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What's Next?
At their
core, police and public health officials have the same mission: to ensure and protect the health and safety of the
public. Ideally, achieving that goal in the
context of injection drug use should reinforce, not undermine, their responsibilities: “The regulation of drug paraphernalia laws
must assist police and law enforcement in their attempts to prevent and punish the sale
and use of illicit drugs, but should not interfere with public health measures to prevent
blood-borne disease.” 37
Until
cures are found for blood-borne diseases like HIV and Hepatitis C, prevention is the best
way to fight them. NEPs remain an important
strategy for doing do.
To be
sure, NEPs are not appropriate for every community. A
case-by-case analysis should be made by the community, public health officials and police
as this option is considered. This analysis
could include such things as:
The
role of IDU plays in the spread of HIV and other blood-borne diseases in the community;
The
availability of other strategies for preventing the spread of disease among
IDUs;
How the
NEP would fit into the overall picture of public health and drug treatment;
The
legal barriers that may exist, such as the presence of drug paraphernalia laws; and
The
availability of funding for the NEP.
To the
extent that a NEP is found to be an appropriate and viable option, it should strive to:
Expand
access to substance abuse treatment, education and counseling;
Be part
of the community’s efforts to discourage illegal drug use;
Coordinate
with local law enforcement to offer training for offices and joint planning activities;
Encourage
and support crime prevention; and
Rehabilitate
IDUs. 38
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Endnotes
1
National Institute for Drug Abuse, White House Meeting on “Effective Approaches of HIV/AIDS Among
Intravenous Drug Users”, February 2000.
2 Centers for Disease Control and Prevention, HIV/AIDS
Surveillance Report, Volume 11, No 1, 1999.
3 National Institute for Drug Abuse, White House Meeting on “Effective Approaches of HIV/AIDS Among
Intravenous Drug Users”, February 2000.
4 Centers for Disease Control and Prevention, Update: Syringe Exchange Programs – United States,
1997, MMWR Weekly, August 14, 1998.
5 Centers for Disease Control and Prevention, Update: Syringe Exchange Programs – United States,
1997, MMWR Weekly, August 14, 1998.
6 Unpublished study, Dr. Denise Paone, Beth Israel Hospital, New York, New York. Presented at the North American Syringe Exchange
Conference X, Portland, Oregon, April 27, 2000.
7 National Institute for Drug Abuse, White House Meeting on “Effective Approaches of HIV/AIDS Among
Intravenous Drug Users”, February 2000.
8 Woodward, et. Al., “The Drug Abuse Treatment Cap: Recent Estimates,” Health Care Financing Review, 18:5-17, 1997.
9 Gostin, Lawrence O., and Zita Lazzarini, Prevention
and HIV/AIDS Among Injection Drug Users: The
Theory and Science of Public Health and Criminal Justice Approaches to Disease Prevention,
Emory University Law Review, Spring 1997.
10 The United States Conference of Mayors, Needle
Exchange: Moving Beyond the Controversy,
U. S. Conference of Mayors, Local Needle Exchange Forum, Meeting Summary, September 1994.
11 Unpublished study, Dr. Denise Paone, Beth Israel Hospital, New York, New York. Presented at the North American Syringe Exchange
Conference X, Portland, Oregon, April 27, 2000.
12 Ibid.
13 Ibid.
14 Centers for Disease Control and Prevention, Update: Syringe
Exchange Programs – United States, 1997, MMWR Weekly, August 14, 1998.
15 Gostin, page 23.
16 HHS Press Release, April 20, 1998.
17 Strathdee, Steffanie, Ph.D., Associate Professor, Johns Hopkins University,
School of Public Health and Hygiene, Summary of
Research Findings – Needle Exchange Programs in Baltimore.
18 Ibid.
19 Gostin, page 25.
20 National Institute of Health, Consensus
Development Statement on Interventions to Prevent HIV Risk Behaviors, March 1997.
21 Gostin, page 24.
22 Ibid.
23 Strathdee, Steffanie, Ph.D., Associate Professor, Johns Hopkins University,
School of Public Health and Hygiene, Summary of
Research Findings – Needle Exchange Programs in Baltimore.
24 Ibid.
25 Ibid.
26 Report Says Hawaii’s Syringe Exchange
Program Works, Press Release, Hawaii Department of Health, February 12, 1998.
27 HHS Press Release, April 20, 1998.
28 Strathdee, Steffanie, Ph.D., Associate Professor, Johns Hopkins University,
School of Public Health and Hygiene, Summary of
Research Findings – Needle Exchange Programs in Baltimore.
29 Ibid.
30 Ibid.
31 Unpublished study, Dr. Denise Paone, Beth Israel Hospital, New York, New York. Presented at the North American Syringe Exchange
Conference X, Portland, Oregon, April 27, 2000.
32 Scott Burris, David Finucane, Heather Gallagher and Joseph Grace, The Legal Strategies Used in Operating Syringe
Exchange Programs in the United States, American Journal of Public Health, August
1996, Vol. 86, No. 8.
33 Gostin, page 26.
34 Gostin, page 27.
35 Ibid.
36 Ibid., at 29.
37 Ibid.
38 Ibid., at 28.
The views expressed in this report are those of the
authors and do not necessarily reflect those of the Kaiser Family Foundation. |
About
NEP
| NEP
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| Biology
of Addiction
| Considerations
for Criminal Justice
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NEP's
Bottom Line for Jails
| NASEN:
Building Bridges
| Is
Baltimore a Bust?
Glossary
of Terms
| NEP
Staff Biographies
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