How Abbott Killed the Needle Exchange Program
Attorney General Abbott’s opinion killing the proposed needle exchange pilot program for Bexar County could have gone either way. This would never have become an issue had not Bexar County DA Susan Reed announced that she would prosecute participants in the program for violating the Texas Controlled Substances Act. Why a DA would want to eviscerate a program that would save lives and taxpayers’ money (because HIV and hepatitis are transmitted by nonsterile needles) is beyond me. What public interest was served by Reed’s decision other than her own political interest?
San Antonio state senator Jeff Wentworth, who requested the opinion, argued, reasonably enough, that the pilot program created an exception to the Texas Controlled Substances Act (TCSA). Abbott disagreed. “[W]e find several instances in which the Legislature has adopted express exceptions to the [TCSA],” the opinion says (for example, the use of peyote by a member of the Native American Church),…. “The presence of these express exceptions to the [TCSA] indicates that the Legislature knows how to create such an exception when it wishes to do so. It did not, however, choose to create an exception here.”
The language of the AG’s opinion concedes that this is a close decision. “One interpretation is to conclude that, because the Legislature did not exempt participants in the needle and syringe component of the program from the possibility of prosecution … they are subject to the possibility of such prosecution. The alternative is to conclude that, because the Legislature should not be presumed to have authorized the establishing of a portion of a disease-prevention program that is effectively illegal under the Texas Controlled Substances Act, the statute creates a special exception from the possibility of prosecution under the [TCSA].”
To my way of thinking, it is so much more logical to conclude that the Legislature did not intend to establish a program that subjects anonymous drug users and county health officials to prosecution. The whole idea of the program is to save lives. As Wentworth said to me, “Clearly, the Legislature did not intend to create criminals by having this program in Bexar County.” Instead, Abbott chose to cloak his decision in the eccentricities of the principles of statutory construction. People will die and medical costs will rise as a result.
JUICE says:
Couldn’t agree more. The opinion is almost comically illogical. And the unfortunate result could be a slew of bills next session with tortured sections exempting them from every crazy law school hypothetical imaginable.
Reply »
Anonymous says:
Burka, if I remember correctly, you are an attorney, and thus I cannot believe you are blaming Abbott for the problems with this legislation. This is far from a “crazy law school hypothetical,” as was mentioned in the comment above. The author of the amendment, at least at one point, knew that a provision providing a defense to prosecution must be included in order for the legislation to have any meaning. Rep. McClendon filed legislation that would have allowed health authorities to run needle exchange programs, and it included that language.
After the bill died in committee, McClendon offered an amendment to SB 10, a Medicaid bill, creating the Bexar County needle exchange program. Inexplicably, the amendment she offered did not contain the defense to prosecution provision. Had she simply used the language in her bill, there would not be a problem. Read any article on needle exchange in Texas, and you will understand that the impediment to any entity establishing a program is that there is no defense to prosecution. Perhaps she got a ruling from the parliamentarian that such language would not be germane, or perhaps in haste of drafting the amendment, her staff or legislative council made a mistake. Regardless, any needle exchange legislation that does not contain a defense to prosecution provision is meaningless. Abbott was absolutely correct in his opinion.
Reply »
el_longhorn says:
The better practice would have been to specifically include language regarding prosecution, but the amendment accomplished the same goal without that language. If there was any question of legislative intent, the AG should have looked at the legislative record (which he curiously refuses to do in the opinion). That AG Opinion was one of the worst I have read – he twists himself into a pretzel trying to say that the legislation is clear on its face so he doesn’t have to look at the legislative intent.
Below is the clear legislative intent. This is from May 27 and is available on the Senate’s video archives:
Senator Nelson called from the President’s table the Conference Committee Report on SBi10. The Conference Committee Report was filed with the Senate on Saturday, May 26, 2007.
“LEGISLATIVE INTENT of S.B. 10 AMENDMENT
Senator Deuell:
“Senator Nelson, 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?”
Senator Nelson:
“That is correct.”
Senator Deuell:
“Okay, thank you, and thank you for your support in this regard, and many, many other issues: and thank you, Mr. President.”
Reply »
Anonymous says:
I find it amazing that in your blog you pose these questions to DA Reed but never took the time to pick up the phone and ask her some of them. You just might find that she has some good answers. Perhaps it is easier to debate when you don’t give the other side a chance to respond.
First, DA Reed did not just come out on her own and announce she would prosecute anyone in the program. The program sponsors asked the DA’s Office for an opinion (because they knew there was a big problem) and then when they got the answer they did not want to hear, they chose to blame the DA for any problems. She told them she would enforce the law. That is what DA’s do.
Second, a needle exchange program does not automatically save lives. It has to be run correctly and regulated properly. There are no guidelines or parameters under the legislation that passed. The legislation that was originally proposed was very specific in what was permitted and that legislation failed to get out of committee. Mr. Burka, do you support providing needles to underage kids? How about exchanging one dirty needle for 10 new ones, thereby putting nine new needles on the street? The more needles the greater chance of spreading disease. None of these issues were addressed in the final amendment. The road to hell is paved with good intentions. Surely even supporters of the program must recognize that a needle exchange program must have some regulations that ensure it is a benefit to society, not just a feel good program. This legislation failed that test.
If you really are a lawyer, then you know about statutory construction and interpretation. Legislative intent means very little. You look at what was actually voted on and passed, not at what they wanted to pass, hoped to pass, or thought they passed. If the written law says “red,” you can’t turn around and say, “We really mean green.” Haven’t you ever heard of the old saying, “The law is the law.” It would be a very useless set of written laws if the old saying was “The law is what I want it to be today and not what it was yesterday.”
The sponsors could not get their specific bill even out of committee so they slipped this vague amendment into a massive piece of legislation and slid it through. It was a Hail Mary play that did not work. They will have to go back next session and do it right but it is not the DA’s fault if the legislature refuses to pass it or if the sponsors can’t draft it right.
Reply »
paulburka says:
To #4 –
My questions for District Attorney Reed were rhetorical. Too many DA’s ignore that part of their job in which they are supposed to be the conscience of the community who concerned about justice as well as punishment of wrongdoers.
I really do have law degree from the University of Texas; I once worked for the Legislative Council drafting bills, as well as for a member of the Senate; and I drafted enough provisions including the phrase, “It is the intent of the Legislature that…,” to know that legislative intent does matter.
The plain meaning rule is a bedrock principle of statutory construction. But it is only one of many principles, and one can always find several that will fit the result you want to reach.
You make some interesting points about the legislative history of the bill. These may have been fatal infirmities. But General Abbott chose not to investigate the legislative history or base his opinion on any of the facts that you state. If the question is, Did the Legislature intend to subject participants in a needle exchange program to criminal penalties?, the answer is clear.
Reply »
Anonymous says:
Mr. Burka:
I wrote #4. Thanks for taking time to respond. I never write comments but I respect your writing and so this is the first time I have done this.
I understand your questions were rhetorical. My point is that the press refuses to give DA Reed a fair opportunity to respond. The press is fixated on the IDEA of a needle exchange program rather than the realities of the situation and the legal obligations of the DA.
I agree that the DA is often times placed in the position of being the conscience of the community. That is why I asked you whether you supported handing out needles to underage kids or exchanging one used needle for 10 needles. A needle exchange program that does not have a requirement for the even exchange of one used needle for every new needle is defective. Likewise, the community would have fits if underage kids could lawfully be given needles, as was possible under the passed amendment. That is currently a felony. In the capacity of “the conscience of the community,” DA Reed was protecting the community from the spread of disease by well intentioned people who nevertheless had no restrictions on them to ensure an equal exchange of needles. Likewise, she protected the community when she took a stand against the possiblity of kids being given needles. The passed legislation was simply too vague to be of use to anybody, no matter how well intentioned. The proposed bills (there were three of them) that failed to get out of committee all addressed these and other important issues. Our legislature is usually viewed as being the best body to speak for the people. In this case the ledge refused to pass bills expressly creating deatiled and regulated needle exchange programs.
As the writer to comment #2 correctly notes, the amendment was tacked onto SB 10, an omnibus Medicaid bill that if I recall correctly was about 89 pages long. The operative portion of the amendment supposedly creating the needle exchange program was about three sentences. As I said before, this was slipped in at the last minute. I seriously doubt if the legislature truly had any intention of creating a needle exchange program. They intended to pass a Medicaid bill.
As one who truly appreciates the work of the Ledge Council, I understand the written expressions of legislative intent carry weight and signifcance. Those bills are worked on and reviewed by skilled people to achieve the bill’s purpose and conform to existing law. That expression of leglisaltive intent is significantly different and far more compelling than the brief verbal exchange of two legislators on the floor that is referenced in comment #3, which is, to my knowledge, the sole alleged statment of legislative intent on the issue.
Thanks again for taking time to respond.
Reply »
anonymous says:
Having worked in needle exchange programs (NEP’s) for over 7 years, I’d like to share some information to illuminate what is otherwise only speculation by those who debate or seek to block this important disease prevention tool through provoking fear and distrust.
NEPs are not designed according to a “standard” because they operate in many environments in many communities around the world and the United States. There are however Best Practices that have evolved in the over 30 years that NEP’s have been around, and these practices are determined by studying and indentifying what works best to prevent disease among injection drug using populations- that is the first and most important goal of any needle exchange program.
Here’s some informed responses to questions asked by the author of #4
1. The heart string puller- the emotional rouser- the fear- Are you comfortable giving needles to children? The average age of a visitor to a needle exchange program is about 35, however there are minors who are addicted to dangerous drugs and some of them inject. If a needle exchange program is designed to prevent disease among IDU’s, how can they leave out the most vulnerable of the population- the youth addicts who are most likely gutter punks, street kids, children who have run away or been kicked out of their homes, who have no one to turn to and a bad addiction leading them into ever more dangerous life choices. If a NEP is to save a life, the life of a child would be worth protecting. I do not condone or encourage drug use by children or any other age group- but NEP’s are designed to serve an existing population of drug users- a population that is fearful of society, fearful of arrest, fearful of social services and yes, fearful of disease. IDU’s of all ages will use needle exchange programs to prevent disease among themselves or to insure that they don’t spread it if infected. This issue is emotional to many- but a child has a better chance to recover from drug addiction and lead a normal and healthy life is he/she can come out of the process free from HIV or hepatitis C infection. In fact- the contraction of a disease like that could increase the chance that a child might make it through addiction alive at all. If we have a needle exchange program, are we comfortable excluding minors who are addicts and only preventing disease among adults? Best Practices and common sense dictate that you provide clean needles to IDU’s regardless of their age and assist and support them when they are ready to seek addiction services- NEP’s can’t force a child or adult into treatment but they are more and more often the avenue through which addicts enter programs- why? Because they are given what they need when they need it- sometimes that’s a clean needle that saves their life, sometimes it’s a friendly face saying how are you today and sometimes it’s quick access to a detox center. Unfortunately, IDU kids need these services too.
2. Best Practices on exchange ratios: What seems common sense is actually not applicable to servicing and IDU population? It is a completely misinformed perspective that claims that NEPs that do not have one for one exchange ratios are “defective.” Around the country, different communities have established different exchange rations but the research on those who have 2 for 1 and 1 for 10 ratios are preventing disease more effectively and collecting more needle waste from the communities they serve. Why? Because of many reasons. First: needles are already very scarce. The need for clean needles in the IDU population (estimated to be 10,000 people in San Antonio alone) is huge and the access to syringes is extremely limited. A fact that has not reduced drug use but has increased the HIV and hepatitis C rates to horrendous levels. If people have drugs but no clean needles they use dirty ones. The presence of clean needles among this population must increase to prevent disease. Turning a dirty needle into a valuable commodity increases the incentive for addicts to hold on to all of their needles and return them. Every time they return to the exchange with their dirties-they learn more about how to better care for themselves and keep their community clean. Second: IDUs are often afraid to leave their homes and interact with society, social services and even NEPs. They fear that cops will stake NEP locations and arrest them. We often see groups of users represented by one courageous “caretaker” who assumes responsibility for exchanging everyone’s needles. Those people might come in with 10 needles but be exchanging for 15 people- best practices dictate a clean needle for every new injection per person. How far will you get with 10 needles and 15 people? Not far considering heroin injectors shoot 3-5 times per day and meth and coke addicts shoot closer to 10 plus times a day. Even if everyone just gets one needle per day for a week, that’s 7 needles times 15 people to truly prevent disease among this population. Third: Addicts can’t always keep their dirties on them. They get thrown in the trash, they get confiscated by police, they get ditched in an ally, they get left in a friends house they get removed from city workers cleaning up areas where homeless people camp. The needles disappear but the addiction doesn’t. If an addict shows up needing needles for the week but only was able to find one on the street on his/her way to the exchange- best practices dictate that that person be given what they need to prevent disease and the trust that they will do just that and do their best to return the following week with their dirties. Mostly- that is what happens.
3. DA Reed was supposedly protecting the community from who again? Bexar County Health and Human Services? That is an insult to the health care professionals who have worked so hard to learn all they could about successful NEPs, to explore best practices, to determine how to best prevent disease in their community. They have met with the directors of some of the most successful programs around the country, they’ve devoured the medical studies, the data, the various guidelines and are well on their way to developing a program that will prevent disease in a way that they have not been able to do before. Bexar County struggles with highly elevated HIV and hepatitis C rates and a generational epidemic of heroin usage. They were finally given the green light to design and implement a program that would increase outreach to this difficult population, reduce the expense and complications of HIV and hepatitis C, and create trusting relationships with addicts who more and more often are using those relationships with NEP staffers to get into treatment. The DA was protecting her own political opinions from being challenged and because of that addicts in Bexar County will continue to find that they are infected with HIV and hepatitis C due to the use of dirty needles- no matter what their age.
4. Legislative intent: The legislature did work hard all session to pass needle exchange. The Senate voted for it in a Republican led bi-partisan approach with 24 votes in support. It didn’t make it through the House committee because of one woman- Diane Delisi White would not give her committee the opportunity to vote on the bill. I was there- I spoke with legislatures all session. The support was there and Delisi wouldn’t allow the vote to happen. Legislators worked hard to change her mind and she refused to even discuss the FACTS supporting NEPs as a valid and medically recommended disease prevention measure. McClendon attached an amendment to SB 10 but it didn’t sail through un-noticed. The amendment had debate and a vote and legislators voted for it knowing that it was a NEP and was being put into the hands of a responsible Health Care Authority- Bexar County HHS.
It is the simplicity of NEPs that is perhaps what makes people so afraid. Take out the dirties and put clean ones in. Until our drug treatment centers are funded enough to truly handle the huge problem of addiction in our state, preventing disease among this population is the most rational, and responsible thing to do and the legislators in the House and Senate who were given the opportunity to support the programs voted for that. If the DA was worried about giving syringes to children, she could have said she’d arrest for distribution to minors but not adults- but she didn’t. She went out and found an independent group of elderly Christian ministers working to prevent disease and she arrested them- no minors present to my knowledge- and no accusations of such either. And if she was so concerned about one for one exchange she could have met with Bexar County HHS to discuss her concerns, to learn about the community the program was to serve- to figure out what this was all about and grow up a bit. But no- she has yet to learn a thing about the topic to my knowledge.
So for now, Bexar County HHS deals with some of the highest hepatitis C and HIV rates, rates which disproportionately affect minorities and women. And those rates will continue to grow. IMO, every new infection is a proud notch DA Reed can etch into her belt, specially the new infections of underage drug injectors.
Whoever you are #4, there is a wealth of solid medical research on this topic that is easily accessible on the web. Much of it funded by our won Federal Government. Please take the time to do your own research and don’t be like the Delisi’s and Reeds of the world who allow their gut reactions and lack of information to inform the decisions you impart upon our world. You can even research into the specific concerns you mentioned above- I wish you had before sharing your uninformed opinions with this blog.
One last note: Over 400,000 people have hepatitis C in Texas. It’s the number one reason for liver transplants. 40% of those infections came from sharing syringes.25% of all HIV in Texas comes from sharing syringes. This costs tax payers 385,000 for the life time treatment of the uninsured. It costs the same as one HIV infection to run a good needle exchange program for a city the size of San Antonio.
Reply »