Tuesday, May 6, 2008

Needle in a haystack

Oh well, I thought this was a good plan thought out poorly.

AG opinion
Bexar needle-swap plan
Don Finley and Elizabeth Allen: Express-News

In the wake of a long-awaited opinion issued Monday by Attorney General Greg Abbott, Bexar County officials will not move forward with what would have been the first legally sanctioned syringe-exchange program for drug addicts in Texas.

The opinion essentially supports the view of District Attorney Susan Reed, who argued that the bill creating the local pilot program didn't trump state drug laws and would leave county workers open to prosecution. The opinion left such prosecution to Reed's discretion.

“We were hoping the attorney general would see the value of operating the sterile needle exchange in toto, which included the distribution of sterile needles,” said Aurora Sanchez, who as the county's executive director of community and development programs is overseeing the pilot program. “But since it doesn't do that, it appears to me we have to wait until the legislation is changed in 2009.”

State Rep. Ruth Jones McClendon, D-San Antonio, who attached an amendment to a Medicaid bill authorizing the program after another bill she authored that would have allowed such programs statewide died in committee, said she would work to fix the problem in the next session.

“This next session, one of the first bills I will file will be legislation allowing Bexar County and other Texas communities to implement safe needle exchange programs to prevent the spread of infectious diseases such as HIV-AIDS and hepatitis C, for which there are, unfortunately, no vaccines available,” said McClendon, adding she was disappointed by the ruling.

But Bexar County's First Assistant District Attorney Cliff Herberg said fixing the bill might be difficult.
“The problem with this legislation is that it was faulty from the beginning,” he said. “For example, it left open the possibility that needles would be distributed to underage kids.”

The bill was short, vague and lacked strict guidelines, he said.

About the DA's office's decision whether to prosecute those who violate state drug laws, Herberg said, “Our critics think this is some sort of philosophical or moral issue. It's not. We follow the law as written, not how we would like it to be.”

Monday's ruling clears the way for the prosecution of three members of a group that has been openly swapping needles with addicts for some time.

In January, Bill Day, 73, co-founder of the nonprofit Bexar Area Harm Reduction Coalition, and two board members were arrested on a charge of possession of drug paraphernalia—a Class C misdemeanor punishable by a fine up to $500. The organization is not part of an official effort to create a pilot syringe-exchange program in Bexar County.

Police refiled the case with Reed's office as a more serious Class A misdemeanor, distribution of drug paraphernalia, which carries a punishment of up to one year in jail and a $4,000 fine. The DA's office was awaiting the attorney general's opinion before deciding whether to proceed with the cases against the three.

“Based on the previous approach she's taken, I expect her to say she's going to exercise her discretion to prosecute these wholly good-hearted people. That's an unfortunate result,” said Neel Lane, an attorney with Akin Gump Strauss Hauer & Feld, which is representing the coalition at no cost.

“I think that the attorney general has reached an absurd conclusion that, in passing a law creating and funding a pilot needle exchange program, that the Legislature may nevertheless intended to prosecute those who carried out the program it funded,” Lane continued. “The practical effect of the opinion is to tell the Bexar County DA that she has the discretion to veto laws passed by the Legislature and signed by Gov. Perry.”

Yet the original bill that died in committee “looked fine; it's just been rejected,” Herberg said.
“The Legislature clearly didn't intend to create this program,” he said. “It was an 11th-hour amendment to a massive piece of legislation.”

The opinion by Abbott was requested by state Sen. Jeff Wentworth, R-San Antonio, chairman of the Senate Judiciary Committee. Supporters maintained that the Legislature clearly intended to authorize a legal program. And McClendon's staff had argued that the Texas Penal Code already contains a defense for government agencies that are acting to protect the public health and safety.

Sanchez said the county would continue to provide educational materials to addicts to prevent the spread of disease.