Proceedings--Workshop on Needle Exchange and Bleach Distribution Programs (1994) / Chapter Skim
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LEGAL ISSUES AND DRUG PARAPHERNALIA
LEGAL ISSUES AND DRUG PARAPHERNALIA
Pages 111-152
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From page 113... ...
Drug control policies are driven by the belief that if the supply of drugs and drug paraphernalia is aggressively cut off and if growers/manufacturers, sellers, and users are swiftly and severely punished, the result will be a reduction in drug abuse and the cycle of related v~olence.~ The essence of drug control policy, therefore, is to create a scarcity of drugs and drug injection equipment, and to punish users. The public health approach is markedly different from -- and perhaps incompatible w~th -- traditional drug control.
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From page 114... ...
~. Broadly speaking, two categories of legislation directly affect the supply of sterile drug injection equipment: drug paraphernalia laws and needle prescription laws.
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From page 115... ...
Drug paraphernalia laws, including the federal Mail Order Drug Paraphernalia Control Act and comprehensive state statutes, present formidable obstacles for the injection drug user who complies with public health advice to use sterile injection ~5
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From page 116... ...
The law also creates a marked disincentive for users to carry sterile equipment when they frequent a "copping place." Yet drug users need to be carrying sterile injection equipment precisely at this time, when they are buying and/or injecting heroin or cocaine. PROPOSAL FOR REFORMING DRUG PARAPHERNALIA STATUTES Drug paraphernalia laws, if they are to be consistent with public health objectives, should focus on prohibiting the illicit sale, rental, or distribution of drug injection equipment.
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From page 117... ...
Needle prescription laws are more onerous than drug paraphernalia laws because they do not require criminal intent. Needle prescription laws that are regulatory and do not impose criminal liability on the buyer have been upheld by the courts [People v.
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From page 118... ...
Social science research indicates that behavioral change is enhanced when people have full and accurate health information and the means to act on that information.33 In 1992, Connecticut gave policy makers and researchers their first opportunity to evaluate such proposals for reforming drug paraphernalia and needle prescription statutes. The legislature enacted a statute relaxing criminal prohibitions on the purchase and sale of hypodermic needles and syringes [Connecticut Public Act No.
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From page 119... ...
Since 198S, Congress has passed at least seven statutes that contain provisions prohibiting or restricting the use of federal funds for needle exchange programs and activities.34 For example, the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act of 1992 stipulates that: , ~ None of the funds provided under [the Public Health Service Act] shall be used to provide individuals with hypodermic needles or syringes so that such individuals may use illegal drugs, unless the Surgeon General of the Public Health Service determines that a demonstration project would be effective in reducing drug abuse and the risk that the public will become infected [with HIV]
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From page 120... ...
Officials might exercise their prosecutorial discretion to overlook violation of drug paraphernalia laws when public health officials are operating needle exchange programs, but this discretion is an imperfect too} at best. it can be revoked at any time, it may not prevent street arrests (as the experience in San Francisco illustrates)
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From page 121... ...
The law does not give clients immunity from prosecution for violating the state drug paraphernalia law. However, to date, no arrests have been reported.
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From page 122... ...
1992. The state `department of health services was authorized to estan~sn neen~e-ana-syr~nge exchange programs in the three cities with the highest number of AIDS cases among injection drug users "Connecticut Public Act No.
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From page 123... ...
In November 1992, the Supreme Court unanimously declared that the state's exchange programs were lawful: The Legislature has not explicitly directed regional AIDS services networks to develop needle exchange programs. However, the allowances for "needle sterilization" and "the use of appropriate materials" to combat the spread of AIDS can and should be liberally construed to include needle exchange.
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From page 124... ...
Parker because he lacked the intent needed under the state drug paraphernalia law and because he acted out of necessity. In Commonwealth v.
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From page 125... ...
The Massachusetts Supreme Judicial Court was the first state supreme court to consider whether necessity could be raised as a defense to a charge of violating state criminal proscriptions against distributing drug injection equipment. In Commonwealth v.
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From page 126... ...
However, if those programs can foster a measure of trust among drug users, promote greater use of sterile injection equipment and less sharing, provide counseling and education about safer drug injection and safer sexual intercourse,4i and provide a bridge to an array of treatment services for drug dependency, HIV disease, sexually transmitted disease, and tuberculosis, then American society would be short-sighted if it rejected this potentially effective public health strategy.
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From page 127... ...
Needle Exchange Programs: Are they Effective? ONDCP Bulletin 1992;7: I -9.
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From page 128... ...
"Intravenous Drug Abuse and AIDS Transmission: Federal and State Laws Regulating Needle Availability." In Needle Sharing Among Intravenous Drug Abusers: National and ·ntemational Perspectives, edited by R
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From page 129... ...
Needle Exchange Programs: Research Suggests Promise as an AIDS Strategy. Washington, D.C.: U.S.
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From page 130... ...
Forcing Needle Exchange Through the Courts: A Citizen's Approach to Syringe Exchange. San Mateo, Cali£: AIDS Prevention Action Network, 1991.
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From page 131... ...
-a—- —~ California* Connecticut*
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From page 132... ...
From July i, 1992 through June 30, 1993, we conducted an evaluation to determine whether the changes in the needle prescription and drug paraphernalia laws were associated with changes in pharmacies' needle and syringe sales practices and needle and syringe sales, IDUs' needle and syringe-related purchasing and usage, and police officers' practices and risk of needlestick injuries.
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From page 133... ...
Our data suggest that once legal restrictions on the purchase and possession of needles and syringes are removed, pharmacies watt sell nonprescription needles and syringes, and IDUs will shift their needle and syringe purchasing from illegal "street" sources to pharmacies and reduce their needle sharing behaviors. Therefore, policy-makers should consider: the repeal of needle prescription laws -- allowing increased availability of sterile needles and syringes, and the modification of drug paraphernalia laws -- specifically, decriminalizing the possession of needles and syringes.
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From page 134... ...
COMMENT We recognize that increasing sterile needle and syringe availability for IDUs who cannot or will not enter drug treatment programs requires the consideration of a variety of options including increased pharmacy sales and needle exchange programs. However, among these options, pharmacy sale of sterile needles and syringes offers an intervention that can be implemented with minimal, or no, public funding.
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From page 135... ...
explore ethical issues that surround harm reduction for pharmacies. BACKGROUND Prior to describing the study results some background information for Canada will be provided in order to highlight possible differences from the United States with regard to the epidemiology of HIV/AIDS, the national response to injection drug use in relation to HIV/AIDS and factors that may influence this response.
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From page 136... ...
The concern led to the establishment of a number of Injection Drug Use Pilot Outreach Programmes. The first outreach programme/needle and syringe exchange was reportedly established in i989.3 Ibis programme, and others soon to follow, were multifaceted projects with various components including: risk and risk reduction education; provision of condoms, bleach kits, needle exchange; and addiction treatment referrals.
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From page 137... ...
First, in principle, injection drug users are linked into the Health Care System. Second, in Canada there is a will and an interest in protecting this system, and prevention of hospitalizations is a major component.
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From page 138... ...
This National AIDS Strategy committed to support research initiatives to address the issue of HIV infection among people who use injection drugs8. It is through these initiatives that many of the early outreach oroarammes for injection drug users were funded.
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From page 139... ...
The study responses received reflected that there was a potential role for pharmacies. Data from interviews with injection drug users, another aspect of the evaluation, suggest that 30% of injection drug users experienced difficulty obtaining needles and 47% indicated that pharmacies and drug stores were their most important source of needles and syringes.~° METHOD To conduct this cross-sectional, nation-wide survey of community pharmacies a mailed questionnaire was directed to owner-managers in all Canadian provinces and Territories.
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From page 140... ...
attitudes regarding the prevention of HIV, (3) perceived cause of injection drug use and (4)
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From page 141... ...
The province of Quebec shows a further variation. This may be a result of the fact that in Quebec many of the pharmacy services may be provided through specific community pharmacies designated as serving injection drug users and through community health centres.
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From page 142... ...
To assist in the interpretation of these data two analyses were conducted; one relating provincial/territorial policy to sale of needles and syringes, and another examining factors considered by pharmacists when · · · ~ exercising c .lscretlon. Pharmacy's Response to Requests to Purchase Nationally, 17.0% of the owner-managers indicated that they would not sell needles and syringes to non-diabetic drug users, 29.~% would sell in some cases, 29.2% would sell in most cases and 24.6~o indicated that they would sell in all cases.
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From page 143... ...
Specifically these deal with willingness to provide and support services to injection drug users, perception of those factors that cause injection drug use, agreement with strategies for preventing the spread of HTV and future preventive interventions. As indicated earlier in this paper factor analyses were used to develop composite variables.
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From page 144... ...
Data on knowledge and educational need, not included in this report' suggests that the study populationts lowest levels of information related to such areas as the role of methadone in HIV prevention, and availability of needle exchange programmer. As with other health promotion campaigns additional skills training may be important.~5 Movement forward with harm reduction strategies by pharmacies will require careful planning.
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From page 145... ...
Successful implementation watt require extensive community development and collaboration with other health professionals, public health officials, police, groups representing injection drug users, and Persons Living with HIV. Careful monitoring and evaluation of these programmer wall be necessary to enhance their effectiveness.
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From page 146... ...
Major C and Mindell W The Evaluation of a Program to Prevent Human ·mmunodefciency Virus in Injection Drug Users in Toronto.
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From page 147... ...
Proportion of Reported AIDS Cases by Province/Territory in Canada tD IS. SW'CK SCOTIA Current Policy by Province/Territory to Sale of Needles and Syringes in Canada OLD NB NS ~0~ A=No sale B=Discretion C=Self-selection D=No Policy ~0 A' Response by Province/Territory to Survey hi YUKOI)
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From page 148... ...
124 1 _ 14.8 20-5 _~ ._~ ___ 1 ~~ 18.1 21.4 O at- ~4 ~~ ~ 0( ~~ ~ ~ ~ ~§ ~/ REQUESTS FOR NEEDLES AND SYRINGE SALES BY PROVINCE/TERRITORY 100 80 60 40 20 o e;, ~ ~~ ~ on ~ 49~/ None · 4.8 5.3 16.5 15 3.6 3.8 4.9 6.3 8.3 51.6 14.3 20 - ~3 37.1 46.6 53.9 46.7 32.2 50 43.1 43.5 16.7 33.3 42.9 21-100 63 28.6 29 13.9 15.9 25.8 20.7 26.5 23.2 41.7 10.8 14.3 100+ [] 29.5 19.1 15.7 22.4 38.4 25.5 25.5 26.8 33.3 4.3 28.5 Pharmacies' Response to Requests to Purchase Needles and Syringes Sell In Some Cases 29.1 o/o Sell In Most Cases 29.2% 148 Not Sell 1 7.0°/0 , l .
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From page 149... ...
69.5% 0% Sales Illegal Discretion Self-selection No Policy Classification of Regulatory Policy °/O Using Discretion Who Consider Specific Aspects "Very important" in Decision to Sell Needles and Syringes Sobriety of Client Familiar with Client Client Characteristics Customers Present Time of Day 0% 20% 40% 60% 80% 100% 149
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From page 150... ...
Sales Exchange Program Group mean for composite variables developed from factor analysis) (1 = Not at all willing/supportive, 3= Very willing/supportive)
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From page 151... ...
(1 = Bad Idea, 2= Neither Good nor Bad, 3=Good I dea) Change in Professional Thinking About Non-Diabetic injection Drug Use Since AIDS No Change 27.5% More Tolerant 47.
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From page 152... ...
During much of the workshop, Porter observed, there has been considerable discussion about the conflict between drug control strategies and efforts at harmonizing drug control and public health objectives. He said that consideration should be given to how the legal community can work with program planners in fashioning or enabling needle exchange programs that will be effective, well managed, and lawfully operated.
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