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<<previous | index | next>> IV. BACKGROUNDHIV/AIDS and injection drug use in the United StatesOver twenty years into the AIDS epidemic, injection drug use continues to be a major risk factor for HIV transmission in the United States. A 1996 review of HIV prevalence in ninety-six U.S. cities concluded that a majority of the 41,000 new HIV infections each year in the United States occur among injection drug users and their sex partners and children.2 In 2002, the Centers for Disease Control and Prevention (CDC) reported that 28 percent of new AIDS cases in the United States could be traced to injection drug use, either through the sharing of injection equipment, sex with an HIV-infected injection drug user, or mother-to-child HIV transmission where the mother’s HIV risk was linked to injection drug use.3 Excluding cases in which the mode of HIV transmission is unreported or unidentified, that figure rises to approximately 35 percent.4 Among women and people of color the figure is even higher: at least 49 percent of new AIDS cases among women, and 40 to 45 percent of new cases among African Americans, can be traced to injection drug use.5 African American and Latina women accounted for over 75 percent of all women with injection-related AIDS in 2001.6 As the CDC has noted, untreated injection drug use can contribute to the spread of AIDS “far beyond the circle of those who inject.”7 People who have sex with an injection drug user, or children of injection drug users or their sex partners, may become infected with HIV. As of May 2002, injection drug use had accounted for 36 percent of all reported AIDS cases in the United States since the beginning of the epidemic.8 This figure is disproportionately high for women and children: more than halfof all reported AIDS cases among women, and over 90 percent of cases of mother-to-child transmission where the mother’s HIV risk can be specified beyond “sex with an HIV infected person,” can be attributed directly or indirectly to injection drug use.9 Noninjection drugs may also contribute to the spread of HIV/AIDS, as when drug users trade sex for money or engage in risky sexual behaviors in which they might not engage when sober. Despite the establishment of some syringe exchange services and other sterile syringe interventions in parts of the country, injection drug users in the United States still share syringes in disturbing numbers. The March 2003 National Household Survey on Drug Abuse (NHSDA) found that of approximately 338,000 persons who reported having used a needle to inject cocaine, heroin, or stimulants in the previous year, 14 percent had used a needle that they knew or suspected someone else had used before, and 16 percent said they used a needle that someone used after them.10 Some 11 percent of past year injection drug users said they had bought their needles on the street, obtained them from a drug dealer, or obtained them at a shooting gallery. Injection drug use was reportedly more common among young adults aged eighteen to twenty-five compared to youths aged twelve to seventeen or adults aged twenty-six or older. Treatment for drug addiction, which can eliminate the risk of HIV transmission from used syringes if it helps people stop injecting drugs, is notoriously scarce in the United States. In 2000, the national “treatment gap”—defined as persons who needed treatment for drug abuse in the previous year but did not receive that treatment—was estimated at 3.9 million people, or 83.4 percent of the population needing treatment.11 This figure does not account for the large number of drug users who enter treatment and relapse. A 1999 review of 213,000 treatment admissions for injection drug abuse found that only 20 percent of those admitted for opiate use were entering treatment for the first time.12 This figure was 31 percent for cocaine injectors and 42 percent for methamphetamine injectors. Almost a third (32 percent) of those admitted for opiate use had undergone five or more prior courses of treatment. The health risks of reusing and sharing syringes are not limited to HIV transmission. Sharing syringes is a major risk factor in the spread of hepatitis C virus (HCV), which leads to chronic liver disease in 70 percent of those infected.13 An estimated 50 to 80 percent of injection drug users in the United States are infected with HCV within five years of beginning to inject.14 While disinfecting syringes with chlorine bleach may provide effective protection against HIV,15 bleach is not effective against HCV. Reusing one’s own syringes is also dangerous: not only does the use of blunt needles lead to bruising and scarring, but reusing syringes contaminates other drug paraphernalia and shared drug solute.16 In 1997, the U.S. Public Health Service recommended that health professionals “inform IDUs [injection drug users] that using sterile syringes is safer than reusing syringes, including syringes that have been disinfected with bleach.”17 In the March 2003 NHSDA survey cited above, 43 percent of past year injectors reported having reused a needle they had used before. HIV and hepatitis C transmission among injection drug users, their sex partners and their children is preventable through the use of sterile injection equipment such as syringes, cookers, cotton, alcohol pads, antibiotic ointment, and water. Public health authorities have for years recommended using a new, sterile syringe for every injection; in a 1997 bulletin, the U.S. Public Health Service counseled injection drug users never to reuse or share syringes, water, or other drug preparation equipment; to use only syringes obtained from a reliable source; and to use a new, sterile syringe to prepare and inject drugs. The bulletin stressed that the ultimate health goals are “to prevent at-risk individuals from initiating injection drug use and to help drug injectors stop drug injection through substance abuse treatment and recovery from addiction.”18 The need for substance abuse treatment has, however, always exceeded the U.S.’s capacity to provide it. As a consequence, the CDC concluded in 2002 that “for injection drug users who cannot or will not stop injecting drugs, using sterile needles and syringes only once remains the safest, most effective approach for limiting HIV transmission.”19 As of 1998, this would have required the distribution of up to 1.3 billion syringes each year to an estimated 1.5 million injection drug users in the United States.20 The availability of sterile syringes in the United States: an overviewDespite broad recognition among public health experts that sterile syringe programs are critical to HIV and hepatitis C prevention, recent estimates suggest that these programs remain inaccessible to the majority of injection drug users in the United States.21 The main obstacle to syringe access in the United States is an intricate body of law and policy, animated largely by the nation’s “war on drugs,” restricting the possession, sale, distribution, and disposal of syringes.22 Chief among these are criminal laws governing the possession and distribution of “drug paraphernalia.” Most U.S. states have enacted drug paraphernalia laws in accordance with the Model Drug Paraphernalia Act (MDPA) written by the Drug Enforcement Agency in 1979.23 These laws define drug paraphernalia to include all equipment, products, and materials of any kind which are used, intended for use, or designed for use to “manufacture, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance” in violation of the law.24 Although there are exemptions to drug paraphernalia laws in some states (particularly those that have authorized syringe exchange), many jurisdictions that have legalized syringe exchange continue to enforce drug paraphernalia laws that, paradoxically, prohibit the possession of syringes. Laws prohibiting the possession of narcotics may also restrict syringe access programs, as when injectors returning used syringes to a syringe exchange are arrested for possessing trace amounts of drug residue left in a syringe.25 A second group of laws restricting syringe access in the United States are those governing the over-the-counter sale of syringes. While most states ostensibly allow injection drug users to purchase syringes without a prescription, pharmacies can still be prosecuted for distributing drug paraphernalia if they knowingly sell a syringe to someone who intends to inject a controlled substance. Some states have taken steps to decriminalize the sale of syringes in pharmacies, either by excluding syringes from the definition of drug paraphernalia or by allowing restricted or unrestricted retail sale of syringes without a prescription. Five states—California, Pennsylvania, New Jersey, Massachusetts, and Delaware—explicitly prohibit the nonprescription sale of syringes, posing a substantial barrier to syringe access. Such prescription laws have been associated with increased syringe sharing among injection drug users, higher incidence and prevalence of HIV infection, prosecution of syringe exchange personnel, and a black market in sterile syringes where buyers are charged a premium.26 Syringe regulations have taken a particular toll on syringe exchange, which has evolved as one of the most effective methods of ensuring access to sterile syringes and other services for injection drug users. Syringe exchange programs typically distribute sterile syringes in return for used ones, thus providing a mechanism for the safe disposal of syringes in addition to reducing HIV risk behaviors. The effect of syringe exchange programs is to reduce the length of time used syringes remain in circulation in a given community. Many studies have shown that syringe exchange programs also act as an important gateway into drug treatment, linking injection drug users to health professionals and providing referrals to treatment and counseling services.27 This often ignored but crucial feature of syringe exchange programs was eloquently described in a 1998 memo from the U.S. Public Health Service to then Secretary of Health and Human Services, Donna Shalala.
Other ancillary services provided by syringe exchange programs include information on sterile injection, testing and counseling for sexually transmitted diseases (STDs), and primary health care.29In numerous studies, syringe exchange programs have been associated with substantial reductions in the sharing of syringes, the referral of large numbers of injection drug users to drug-treatment facilities, and a six-fold and seven-fold reduction in the transmission of hepatitis B and C, respectively.30 Despite these remarkable benefits, the legal status of syringe exchange in at least nineteen U.S. states remains anywhere from questionable to outright illegal. Even among states where syringe exchange is permitted, its legality may depend on authorization by local jurisdictions.31 In a 2000 survey of syringe exchange programs in North America, over 20 percent of 134 programs said they had “problems with their legal status,” and over 30 percent described “police harassment” as a problem they had encountered in the previous year.32 Exchanges that operate illegally were found in a 1996 study to offer fewer ancillary services such as on-site HIV testing and counseling and formal referrals to drug treatment than those that were legally sanctioned.33 While no federal law prohibits syringe exchange outright, the U.S. Congress has since 1988 banned the use of federal funds for syringe exchange program services.34 In 1990 and 1991, appropriations bills for the Department of Health and Human Services stipulated that this funding ban remain in place “unless the President of the United States certifies that such programs are effective in stopping the spread of HIV and do not encourage the use of illegal drugs.”35 From 1989 to 1991, however, administrative procedures at the National Institute on Drug Abuse prevented National Institutes of Health (NIH) investigators from evaluating syringe exchange projects, leaving researchers in “the quintessential Catch-22.”36 The 1990s witnessed a steady growth in both the number of syringe exchange programs in the United States and in the volume of scientific evidence supporting their use.37 In 1998, the U.S. Secretary of Health and Human Services, Donna Shalala, concluded that “a meticulous scientific review has now proven that needle exchange programs can reduce the transmission of HIV and save lives without losing ground in the battle against illegal drugs.”38 President Clinton was widely expected to lift the funding ban in response to this finding, but he changed his mind the evening before his scheduled press briefing, reportedly having been convinced by the director of the Office of National Drug Control Policy that syringe exchange encouraged drug use.39 Shalala subsequently told the press, “We had to make a choice. It was a decision. It was a decision to leave it to local communities.”40 In July 2002, before giving the closing address at the Fourteenth International AIDS Conference in Barcelona, Spain, President Clinton expressed regret about his decision. “I think I was wrong about that,” Clinton said. “We were worried about drug use going up again in America.”41 As of 2001, the United States remained the only country in the world to explicitly ban the use of national government funds for syringe exchange services.42 Shalala’s 1998 finding was based on at least seven government-funded reports, making syringe exchange “among the most thoroughly researched of all HIV interventions.”43 The first of these reports was a landmark study by the National Commission on AIDS (NCOA), “The Twin Epidemics of Substance Abuse and HIV,” which recommended the removal of all barriers to possession and distribution of injection equipment, including the federal ban on funding syringe exchange services. The NCOA study was followed by federally funded evaluations of the existing science of syringe exchange programs by both the U.S. General Accounting Office (GAO), the research arm of the U.S. Congress, and the University of California – San Francisco. Both of these studies found that syringe exchange was likely to reduce HIV transmission among injection drug users without increasing drug abuse. The studies also suggested that syringe exchange provided referrals to drug treatment and did not increase crime. The University of California report was then reviewed by the CDC, which endorsed both the report’s findings and its recommendation that the ban on federal syringe exchange funding be lifted. Two studies conducted in 1995 reached similar conclusions: one by the National Academy of Sciences (NAS) and another by the Office of Technology Assessment (OTA). In March 1997, the NIH Consensus Panel published a “Consensus Development Statement on Interventions to Prevent HIV Risk Behaviors,” which found a 30 percent or greater reduction of HIV associated with syringe exchange and concluded that “legislative restriction on needle exchange programs must be lifted.”44 The panel asked: “Can the opposition to needle exchange programs in the United States be justified on scientific grounds? Our answer is a simple and emphatic no.”45 In total, seven government-funded reports between 1991 and 1997 found that syringe exchange reduced HIV transmission without increasing drug use. As of a 2001 review of syringe exchange research, no established medical, scientific or legal body to study the issue had concluded otherwise.46 Of the five government-funded reports that made policy recommendations, all recommended revoking both the federal funding ban and state prescription and paraphernalia laws. In 2000, following an updated review of existing research on syringe exchange conducted at the request of U.S. Representative Nancy Pelosi from California, Surgeon General David Satcher concluded:
A 2002 review of syringe access literature, which was not confined to syringe exchange but examined syringe access interventions more broadly, concluded that “the research consistently supports the conclusion that increased syringe access does not promote drug use, or increase crime or the volume of improperly discarded needles in the community.”48 Subsequent research at the local level has corroborated these findings. A 2002 community study of a San Jose, California syringe exchange program found that injection drug users who did not use syringe exchange were twice to six times as likely as syringe exchange clients to engage in high-risk injection practices, depending on whether they had access to other sources of syringes.49 Proponents of syringe exchange programs have struggled to get the efficacy of these programs recognized and their status legitimized in the United States since the first syringe exchange was established in Tacoma, Washington in 1988. As of this writing, approximately 178 syringe exchange programs operate in thirty-six states, the District of Columbia and Puerto Rico.50 A 2000 survey of 127 syringe exchange programs estimated that 22.6 million syringes had been exchanged that year—a far cry from the total demand for sterile syringes.51 The expansion of syringe exchange programs in the United States has recently been supplemented by “syringe deregulation” efforts, which consist of “the removal of legal barriers to over-the-counter sales and free distribution of syringes.”52 A January 2003 evaluation of an over-the-counter sales program in New York State concluded that, after less than two years of operation, the program had “great potential to prevent transmission of blood-borne diseases without any detrimental effects on syringe disposal, drug use or crime.”53 Deregulation of syringes encompasses not only syringe exchange and nonprescription pharmacy sales, but also initiatives such as physician prescription, vending machine sales, and free distribution of syringes. It has been conservatively estimated that 4,400 to 10,000 HIV infections among injection drug users in the United States, as well as over $500 million in health care costs, could have been avoided between 1987 and 1995 had the federal government implemented syringe exchange nationally.54 At the 2002 Barcelona AIDS conference, however, U.S. Secretary of Health and Human Services Tommy Thompson announced that the Bush administration would not lift the federal ban on syringe exchange funding. In April 2003, The New York Times reported that scientists who study AIDS were being warned that grant applications containing the term “needle exchange” might receive unfavorable treatment from the Department of Health and Human Services or members of the U.S. Congress.55 California: a case studyCalifornia is home to almost one eighth of the cumulative reported AIDS cases in the United States. With a total of 125,173 reported cases as of April 2002, HIV/AIDS represents one of the most serious public health threats facing the state.56 The proportion of new AIDS cases accounted for by injection drug users and their sex partners in California continues to be significant. Men who have sex with men still account for 70 percent of the state’s approximately 124,000 adult or adolescent AIDS cases and continue to represent the majority of newly reported cases each year. However, the percentage of new AIDS cases that can be attributed to injection drug use increased slightly from 2001 to 2002 and currently stands at about 25 percent. Among women, 36 percent of AIDS cases reported in 2002 were attributed to injection drug use, not including women who had heterosexual contact with male injection drug users or did not report their risk. Injection drug use is the primary risk factor for nearly half of the estimated 8,000 Californians who become infected with HIV annually, leading some medical professionals to suggest that drug use is increasing in importance as a cause of HIV transmission.57 As in most other U.S. states, the possession and distribution of drug paraphernalia, including syringes, are misdemeanors under state law in California.58 California is also one of five states to ban the nonprescription pharmacy sale of syringes, whether or not the pharmacist knows the syringe is to be used to inject a controlled substance. Beginning in San Francisco in 1988, syringe exchange programs operated illegally in several of California’s counties. Though some localities endorsed syringe exchange through the declaration of a “local emergency,”59 at least six prosecutions of syringe exchange personnel occurred in California between 1991 and 2000.60 Two defendants pled guilty in exchange for a fine, and in one case the district attorney dismissed the charges following an evidentiary hearing. All three cases that went to trial resulted in acquittals; in one case, the defendant was permitted to bring a defense of medical necessity. Not until 2001, after state law was amended to allow counties to legalize syringe exchange, was a syringe exchange volunteer in California actually tried and convicted for unauthorized distribution of syringes.61 In 1999, California passed Assembly Bill (AB 136), which created a regime for the legalization of syringe exchange by local authorities. It did so by exempting public entities and their agents from prosecution for distribution of syringes to clients of syringe exchange programs that are “authorized by the public entity pursuant to a declaration of a local emergency due to the existence of a critical local public health crisis.”62 The protection afforded by AB 136 extends to any nonprofit organization that contracts with a city, county, or city and county to provide syringe exchange services. The declaration of local emergency, however, must be renewed every two or three weeks in order to maintain the legality of the syringe exchange. Though an earlier version of the bill would not have done so, AB 136 left intact state law that criminalizes the possession of sterile syringes and other drug paraphernalia.63 California law thus sends a mixed message, whereby syringe exchange providers may legally distribute sterile syringes, but clients of syringe exchange programs may not possess them. As of 2000, California had approximately 564,000 people needing but not receiving treatment for a drug use problem—more than any other state—and only twenty-eight syringe exchange programs.64 Nine of these programs remained unauthorized under AB 136, whereas twelve syringe exchange programs in California had been illegal before AB 136 was enacted. Since the enactment of AB 136, the CDC has funded a study of the impact of legality on the operation of syringe exchange, and in turn on high-risk injection behaviors among drug users.65 Preliminary findings showed, not surprisingly, that legal syringe exchange programs were receiving more funding than illegal ones; facing fewer operational challenges such as police interference, political opposition, supply shortage, and syringe shortage; reporting more visits from clients; and providing greater access to ancillary services such as HIV and HCV testing, treatment referrals, and safer sex education. The initial data did not reveal any differences in HIV risk behavior by legal status of the exchange; they have shown that some clients of both legal and illegal syringe exchange programs continue to engage in high-risk injection practices.66 In recognition of the need for broader avenues of syringe access, State Senator John Vasconcellos from Santa Clara proposed in 2002 a law that would have allowed California pharmacists and other licensed healthcare professionals to provide up to thirty syringes without a prescription to persons eighteen years of age and older. The bill, Senate Bill (SB) 1785, also would have amended the state Health and Safety Code to legalize the possession of up to thirty nonprescription syringes, thereby eliminating the Catch-22 inherent in California’s syringe exchange law.67 Although SB 1785 passed both houses in California, Governor Gray Davis vetoed it on September 30, 2002. Despite broad support from medical and health-care associations, as well as favorable editorials in eight major California newspapers, Davis expressed concern that SB 1785 would eliminate the standard practice of requiring a one-for-one exchange of syringes68 and potentially increase the number of discarded syringes in public places.69 Senator Vasconcellos reintroduced the legislation in 2003 as SB 774. 2 Recent figures from the Centers for Disease Control and Prevention (CDC) suggest a more conservative estimate of approximately 28 percent; however, this does not include cases where the cause of infection is known to be through heterosexual contact but it is not known whether drug use is involved. S.D. Holmberg, “The estimated prevalence and incidence of HIV in 96 large U.S. metropolitan areas,” American Journal of Public Health, vol. 86 (1996), pp. 642-654; U.S. Centers for Disease Control and Prevention, HIV/AIDS Surveillance Report: U.S. HIV and AIDS cases reported through December 2001 (vol. 13, no. 2), Tables 5, 6, 9, 10. 3 U.S. Centers for Disease Control and Prevention, “Drug-Associated HIV Transmission Continues in the United States,” May 2002, p. 1 4 This figure is based on Human Rights Watch’s calculations using U.S. Centers for Disease Control and Prevention, HIV/AIDS Surveillance Report... 2001, Table 5. 5 Ibid., Tables 5, 9, 11. 6 Ibid., Table 23. 7 U.S. Centers for Disease Control and Prevention, “Drug-Associated HIV Transmission...,” p. 1. 8 Ibid. 9 Ibid.; U.S. Centers for Disease Control and Prevention, HIV/AIDS Surveillance Report... 2001, Table 15. The mother’s HIV risk can be specified in approximately 62 percent of cases. 10 National Household Survey on Drug Abuse, The NHSDA Report, March 14, 2003. 11 Of those, approximately 9.8 percent reported that they felt they needed treatment for their drug problem, and 3.3 percent said they had made an effort but were unable to get treatment. These are the most recent estimates of the national treatment gap, released in July 2002. The survey does not distinguish between injection and non-injection drug use; however, Lurie and Drucker estimate that “only about 15 percent of the estimated 1-1.5 million [injection drug users] in the USA are in drug treatment on any given day.” Office of Applied Studies, National and State Estimates of the Drug Abuse Treatment Gap: 2000 National Household Survey on Drug Abuse, Rockville, MD: Substance Abuse and Mental Health Services Administration (SAMHSA), 2002; Peter Lurie and Ernest Drucker, “An opportunity lost: HIV infections associated with lack of a national syringe-exchange programme in the USA,” The Lancet, vol. 349 (March 1, 1997), pp. 604-608. 12 Drug and Alcohol Services Information System, “The DASIS Report,” June 21, 2002. 13 U.S. Centers for Disease Control and Prevention, “Hepatitis C Fact Sheet,” [online] http://www.cdc.gov/ncidod/diseases/hepatitis/c/fact.htm (retrieved May 4, 2003). Hepatitis C is also the most important cause of conditions requiring liver transplantation in the United States. 14 U.S. Centers for Disease Control, “Hepatitis C Virus and HIV Coinfection,” September 2002, p. 1. 15 N. Flynn et al., “In Vitro Activity of Readily Available Household Materials Against HIV-1: Is Bleach Enough?”, Journal of Acquired Immune Deficiency Syndromes, vol. 7 (1994), pp. 747-753 16 Stephen Koester, “Following the Blood: Syringe Reuse Leads to Blood-Borne Virus Transmission Among Injection Drug Users,” Journal of Acquired Immune Deficiency Syndromes and Human Retrovirology, vol. 18, Suppl. 1, p. S139. 17 “HIV Prevention Bulletin: Medical Advice for Persons Who Inject Illicit Drugs,” May 9, 1997. 18 Ibid., p. 2. 19 U.S. Centers for Disease Control and Prevention, “Drug-Associated HIV Transmission...,” p. 2. 20 P. Lurie, T.S. Jones, and J. Foley, “A Sterile Syringe For Every Drug User Injection: How Many Injections Take Place Annually, and How Might Pharmacists Contribute to Syringe Distribution?,” Journal of Acquired Immune Deficiency Syndromes and Human Retrovirology, vol. 18, Suppl. 1 (1998), p. S45. 21 David Purchase, director of the North American Syringe Exchange Network (NASEN), estimated in 2001 that only about 10 percent of injection drug users in the United States had access to syringe exchange programs. Many injection drug users have other ways of obtaining sterile syringes, but it is unlikely these alternatives would come close to providing the estimated 1.3 billion syringes needed each year (as of 1998) to ensure a sterile syringe for every injection. See J. Ruiz-Sierra, “Research Brief: Syringe Access,” Lindesmith Center, March 2001. 22 An exhaustive review of syringe access law in the United States is beyond the scope of this report. For a more comprehensive review, which was vital to the preparation of this report, see Scott Burris, Steffanie A. Strathdee and Jon S. Vernick, “Syringe Access Law in the United States: A State of the Art Assessment of Law and Policy” [online], www.publichealthlaw.net (retrieved November 5, 2002). 23 Those states that have begun the process of deregulating syringes have for the most part modified their drug paraphernalia laws, although the interaction of syringe regulations and criminal law varies by jurisdiction. 24 According to Burris et al., in recent years there have been anecdotal reports of syringe exchange workers being deterred by drug paraphernalia laws from offering sterile cookers and cottons, items that are technically intended to facilitate injection and are thus legally indistinguishable from syringes. 25 See “Interference with safe syringe disposal,” below. Participation in a legal syringe exchange was held to be a defense to such charges in Roe v. City of New York, 232 F.Supp.2d 240 (S.D.N.Y., 2002). 26 Prescription laws are more stringent than drug paraphernalia laws in that they do not require specific knowledge on the part of the pharmacist that the syringe will be used to inject a controlled substance. Other prescription-law states either limit the prescription requirement to minors (Florida and Virginia), allow nonprescription sale of a limited number of syringes (Connecticut, New Hampshire, New York, and Maine), or take an otherwise favorable view toward syringe sales (Nevada). See Burris et al., “Syringe Access Law…”, pp. 16-17. Burris et al. also review “sub-prescription” limits on pharmacy sale of syringes, such as regulations contained in state pharmacy codes. 27 See, e.g., Holly Hagan, James P. McGough, Hanne Thiede, Sharon Hopkins, Jeffrey Duchin, and E. Russell Alexander, “Reduced injection frequency and increased entry and retention in drug treatment associated with needle-exchange participation in Seattle drug injectors,” Journal of Substance Abuse Treatment, vol.19 (2000), pp. 247-252 (interviews with injection drug users in Seattle found that new users of the exchange were five times more likely to enter drug treatment than users who had never exchanged); R. Heimer and M. Lopes, “Needle exchange in New Haven reduces HIV risks, promotes entry into drug treatment, and does not create new drug injectors,” Journal of the American Medical Association, vol. 271 (1994), pp. 1825-1826 (letter); R. Heimer, E.H. Kaplan, E. O’Keefe, K. Khoshnood, and F. Altice, “Three years of needle exchange in New Haven: what have we learned?”, AIDS and Public Policy Journal, vol. 9 (1994), pp. 59-74; National Institutes of Health Consensus Panel, Interventions to Prevent HIV Risk Behaviors (Kensington, MD: NIH Consensus Program Information Center, February 1997), p. 6 (“individuals in areas with needle exchange programs have an increased likelihood of entering drug treatment programs”). 28 U.S. Public Health Service, “Memorandum to the Secretary: Review of Scientific Data on Needle Exchange Programs,” April 20, 1998. 29 See Don C. Des Jarlais, Courtney McKnight, Karen Eigo, and Patricia Friedman, “2000 United States Syringe Exchange Program Survey,” Baron Edmond de Rothschild Chemical Dependency Institute, 2000, [online] http://www.opiateaddictionrx.info/survey2000/index.html (retrieved November 13, 2002). 30 P. Lurie and E. Drucker, “An opportunity lost...”, citing P. Lurie and A.L. Reingold, eds. The public health impact of needle exchange programs in the United States and abroad, volume I (University of California, 1993) and H. Hagan, D.C. Des Jarlais, S.R. Friedman, D. Purchase, and M.J. Alter, “Reduced risk of hepatitis B and hepatitis C among injection drug users in the Tacoma Syringe Exchange Program, American Journal of Public Health, vol. 85 (1995), pp. 1531-1537. Infection with hepatitis B virus (HBV) causes liver disease, as with HCV. Unlike the case of hepatitis C, however, there is an effective vaccine to prevent HBV infection. 31 This is the case in California, Massachusetts, Illinois, Ohio, and Pennsylvania. 32 Don C. Des Jarlais et al., “2000 Syringe Exchange Survey”. 33 D. Paone, J. Clark, Q. Shi, D. Purchase, and D.C. Des Jarlais, “Syringe Exchange in the United States, 1996: A National Profile,” American Journal of Public Health, vol. 89, no. 43 (1999). See also, Ricky N. Bluthenthal, Alex H. Kral, Jennifer Lorvick and John K. Watter, “Impact of Law Enforcement on Syringe Exchange Programs: A Look at Oakland and San Francisco,” Medical Anthropology, vol. 18 (1997), pp. 61-83; Robert Heimer, Ricky N. Bluthenthal, Merrill Singer, and Kaveh Khoshnood, “Structural Impediments to Operational Syringe-Exchange Programs,” AIDS and Public Policy Journal, vol. 11, no. 4 (1996), pp. 169-184. 34 Enacted November 4, 1988, the Health Omnibus Programs Extension of 1988, Pub L No 100-607, 102 Stat 3048 (sec. 256(b)), imposed a federal ban on funding of needle exchange program services “unless the SG of the US determines that a demonstration needle exchange program would be effective in reducing drug abuse and the risk that the public will become infected with the etiologic agent for acquiring immune deficiency syndrome.” Even more stringent language was contained in the Comprehensive Alcohol Abuse, Drug Abuse, and Mental Health Amendments Act of 1988, Pub L No 100-690 (Title II, Subtitle A), 102 Stat 3048 (sec. 2025(2)(A)), which stipulated that no funding could be spent “to carry out any program of distributing sterile needles for the hypodermic injection of any illegal drug or distributing bleach for the purpose of cleansing needles for such hypodermic injection,” and the Ryan White Comprehensive AIDS Resources Emergency Act of 1990, Pub L No 101-381, 42 USC 300ff (sec. 422). 35 Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1990, Pub L No 101-166, 103 Stat 1159 (sec. 520), Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1991, Pub L No 101-517, 104 Stat 2190 (sec. 513). The legislative ban on federal support for operating needle exchange programs was also discussed in the 1992 ADAMHA (Alcohol, Drug Abuse and Mental Health Administration) Reorganization Act, Pub L No 102-321, 106 Stat 323 (sec. 706(a)-(b)(5)). 36 Burris et al., “Syringe Access Law…”, p. 9; see also, “U.S. sending mixed signals on trade-ins of dirty needles,” New York Times, March 15, 1989; David Vlahov, Don C. Des Jarlais, Eric Goosby, Paula C. Hollinger, Peter G. Lurie, Michael D. Shriver, and Stephanie A. Strathdee, “Needle Exchange Programs for the Prevention of Human Immunodeficiency Virus Infection: Epidemiology and Policy,” American Journal of Epidemiology, vol. 154, no. 12, p. S72 (2001) (“The irony is that while legislation has called for a ban until such time that it could be determined that such programs were shown to be safe and effective, the administrative ban on federal funds for research [including within existing funded studies] blocked the ability to address these questions”). 37 The United States had one syringe exchange program in 1988, seventy-seven programs in 1995, and 130 programs by 1998. See Vlahov et al., “Needle Exchange Programs…”, pp. S70-S77. 38 Shalala, D.E., Secretary, Department of Health and Human Services, Press release from the Department of Health and Human Services (April 20, 1998), [online] http://www.os.dhhs.gov/news/press/1998pres/980420a.html (retrieved October 31, 2002). Shalala had reported to Congress in 1997 that a review of scientific studies indicated that syringe exchange programs “can be an effective component of a comprehensive strategy to prevent HIV and other blood borne infectious diseases in communities that choose to include them.” Before Shalala made her annoucement, the U.S. Public Health Service and the U.S. Surgeon General had reviewed and analyzed the available literature on syringe exchange and concluded unanimously 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.” See U.S. Public Health Service, “Memorandum to the Secretary,” April 20, 1998. 39 J.F. Harris and A. Goldstein, “Puncturing an AIDS initiative; at last minute, White House political fears killed needle funding, Washington Post, April 23, 1998; Amy Goldstein, “Clinton Refuses Needle Exchange Funding,” Washington Post, April 21, 1998. 40 Lauran Neergaard, “U.S. Won’t Fund Needle Exchanges,” The Associated Press, April 20, 1998. 41 Steve Sternberg, “Clinton ‘wrong’ on needle swaps,” USA Today, July 11, 2002. 42 Vlahov et al., “Needle Exchange Programs…”, p. S72. 43 Ibid. 44 National Institutes of Health Consensus Panel, Interventions to Prevent HIV Risk Behaviors, p. 6. 45 Ibid., pp. 7-8. 46 J. Ruiz-Sierra, “Research Brief: Syringe Access” (The Lindesmith Center, 2001). In 1997, two observational studies from Vancouver and Montreal reported a higher incidence of HIV among syringe exchange clients than those injection drug users not using a syringe exchange service. These studies were subsequently erroneously cited, including by former ONDCP director Barry McCaffrey in testimony to the U.S. Congress, as having shown that syringe exchange contributed to this increased HIV risk, when in fact the studies concluded no such thing. In numerous statements, including an op-ed published in the New York Times in April 1998, the authors clarified that pre-existing risk factors, not syringe exchange programs, contributed to higher HIV rates among program clients. “Because these programs are in inner-city neighborhoods, they serve users who are at greatest risk of infection,” the authors wrote. “Those who didn’t accept free needles often didn’t need them because they could afford to buy syringes in drug stores. They were also less likely to engage in the riskiest activities.” In a 1999 letter to members of the California legislature, one of the authors of the Vancouver study, Steffanie Strathdee, wrote that “[i]n no way did needle exchange programs contribute to the spread of HIV among drug users in Vancouver. In our opinion, if needle exchange had not been in place, rates of HIV would have been much higher, much sooner.” The 1997 NIH Consensus Panel, which recommended the removal of all legal barriers to syringe access, included a review of the Montreal and Vancouver studies. Subsequent, uncontradicted research in both Montreal and Vancouver has shown no causal association between HIV transmission and syringe exchange in those cities. See Julie Bruneau and Martin T. Schecter, “Opinion: The Politics of Needles and AIDS,” The New York Times, April 9, 1998; letter from Steffanie A. Strathdee, Associate Professor, Johns Hopkins University School of Hygiene and Public Health, to members of the California legislature, August 19, 1999; National Institutes of Health Consensus Panel, Interventions to Prevent HIV Risk Behaviors; American Foundation For AIDS Research (amfAR), “The Facts About Montreal and Vancouver: New Studies Find No Evidence That Needle Exchange Programs Lead to HIV Transmission” (1999). 47 “Evidence-Based Findings on the Efficacy of Syringe Exchange Programs: An Analysis from the Assistant Secretary for Health and Surgeon General of the Scientific Research Completed Since April 1998,” October 6, 2000. 48 Burris et al., “Syringe Access Law…”, p. 61. 49 D. R. Gibson, R. Brand, K. Anderson, J. G. Kahn, D. Perales, and J.Guydish, “Two- to Sixfold Decreased Odds of HIV Risk Behavior Associated with Use of Syringe Exchange,” Journal of Acquired Immune Deficiency Syndromes and Human Retrovirology, vol. 31 (2002), pp. 237-242. 50 Unpublished estimate from the North American Syringe Exchange Network, 2002. 51 Don C. Des Jarlais et al., “2000 Syringe Exchange Survey”. While one would not expect the full number of syringes to be provided through syringe exchanges, this report also documents legal and policy restrictions on alternative modes of syringe access such as pharmacy sale and physician prescription of syringes. 52 Burris et al., “Syringe Access Law…”, p. 12. 53 The New York Academy of Medicine, “New York State Expanded Syringe Access Demonstration Program Evaluation: Evaluation Report to the Governor and the New York State Legislature,” January 15, 2003. 54 P. Lurie and E. Drucker, “An opportunity lost...”. The authors used Australia’s model of supporting and guiding syringe exchange through federal regional health authorities, estimating that 49.2 percent of injection drug users in the United States could have used syringe exchange at least once a year by 1994 had such a program been implemented in the United States. They then multiplied this figure by the percentage reduction in HIV transmission among injection drug users who take part in syringe exchange programs, a figure they estimated at anywhere from 15-33 percent. After adjusting this figure to account for injection drug use-related HIV transmission not resulting from syringe sharing, they multiplied the product by the estimated number of new HIV infections among injections drug users each year. They concluded that the implementation of a national syringe exchange program in the United States could have prevented anywhere from 4,394 to 9,666 injection drug use-related HIV infections between 1987 and 1995, corresponding to anywhere from $244 million to $538 million in health care costs. This savings, they estimated, could have supported between 161 and 354 syringe exchange sites. 55 Erica Goode, “Certain Words Can Trip Up AIDS Grants, Scientists Say,” The New York Times, April 18, 2003. The terms “sex workers,” “men who sleep with men,” and “anal sex” were also reported to attract negative scrutiny. 56 California Department of Health Services, “California and the HIV/AIDS Epidemic,” 2002, p. 1. The California Office of AIDS estimates that more than 72,000 Californians are HIV-infected not including people living with AIDS, but the state only approved a system to report HIV infection in May 2002. 57 Letter from Gary Feldman, M.D., president of the California Conference of Local Health Officers (CCLHO) to local health officers, July 27, 2000; Human Rights Watch interview with Neil Flynn, M.D., Sacramento, California, January 29, 2003; Human Rights Watch interview with Jack McCarthy, M.D., Sacramento, California, January 31, 2003. 58 Health and Safety Code Section 113647.7 makes it a misdemeanor to “furnish drug paraphernalia knowingly, or under circumstances where one should reasonably know that it will be used to inject a controlled substance.” Business and Professions Code Section 4140 makes it a misdemeanor to “possess or have under his control any hypodermic needle or syringe” except where authorized by statute. 59 It is unlikely that such declarations had the effect of legalizing syringe exchange, as superceding state law still banned the unauthorized possession and distribution of syringes. California Government Code section 8558(c) defines a “local emergency” as “the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the territorial limits of a county, city and county, or city, caused by such conditions as air pollution, fire, food, storm, epidemic, riot, drought, sudden and severe energy shortage, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake...” In 1993, San Francisco Mayor Frank Jordan endorsed an existing syringe exchange program by declaring a “public emergency to exist in connection with the AIDS epidemic and the high rate of HIV infection among injection drug users and the corresponding high rate of transmission of the disease.” Jordan’s declaration did not have the effect of legalizing syringe exchange; however, it signaled law enforcement officials to avoid arresting syringe exchange personnel and cease disrupting their activities. Other municipalities followed suit, and by 2000 there were approximately fourteen “tolerated” syringe exchange programs in California. See L.O. Gostin, “The Legal Environment Impeding Access to Sterile Syringes and Needles: The Conflict Between Law Enforcement and Public Health,” Journal of Acquired Immune Deficiency Syndromes and Human Retrovirology, vol. 18, Suppl. 1, p. S65; A.H. Kral, “California Syringe Exchange Programs (SEPs) in 2000: Operational characteristics, legal issues, and program needs,” paper presented at the Fifth Annual Conference on AIDS Research in California, Sacramento, CA, February 2002. 60 The district attorney diverted at least two additional cases. Reported syringe exchange prosecutions have also occurred in Massachusetts, New York and New Jersey. See Commonwealth v. Harry Leno & Another, 616 N.E.2d 453, 415 Mass. 835 (Mass. 1993), People v. Bordowitz, 588 N.Y.S.2d 507, 155 Misc. 2d 128 (1991), State v. McCague, 314 N.J.Super. 254, 714 A.2d 937 (N.J. Super. Ct. App. Div. 1998). 61 See “Sacramento County: a lethal prosecution,” below. 62 An act to amend Section 11364.7 of the Health and Safety Code, relating to the distribution of needles and syringes, January 11, 1999. 63 In 2002, State Senator John Vasconcellos from Santa Clara proposed a bill, SB 1734, that would have exempted authorized syringe exchange providers from prosecution for distribution sterile injection equipment in addition to syringes (e.g. cookers, cotton and alcohol swabs), and also allowed the declaration of a local emergency to be renewed annually. SB 1734 passed both the House and the Senate but was vetoed by Governor Gray Davis. 64 Office of Applied Studies, Drug Abuse Treatment Gap, Table 7; Des Jarlais et al., “2000 Syringe Exchange Survey.” The total number of drug users in California is not disaggregated according to injection and noninjection drug users. The Little Hoover Commission on California State Government Organization and Economy, an independent and bipartisan state oversight agency created by the California legislature in 1962, recently concluded that local communities in California lack the resources to satisfy the demand for publicly funded treatment. An estimated 2.3 million Californians were in need of substance abuse treatment in 2001, of whom approximately 1.3 million would have qualified for a publicly funded program (not including incarcerated people). A priority for treatment in California is people arrested of nonviolent drug offenses, especially since the passage of legislation (Proposition 36) aimed at rehabilitating rather than incarcerating nonviolent drug possession offenders. However, only 10 percent of the 1.3 million qualified people were enrolled in treatment programs, and 15 percent sought treatment but were turned away or placed on a waiting list. Those who did not seek treatment were deterred in part by a lack of programs, long waiting lists, lack of transportation, discrimination, inadequate screening and linkage to services, and real or perceived social barriers such as losing custody of one’s children. See Little Hoover Commission, For Our Health & Safety: Joining Forces to Defeat Addiction (March 2003), pp. vi, 16. 65 The CDC-funded study is known as the California Syringes Exchange Program Study or CALSEP. As of December 2002, nine presentations of CALSEP data had been completed. 66 Ricky N. Bluthenthal, Rachel Anderson, Neil Flynn, James G. Kahn, and Alex H. Kral, “Can Changes in Laws Improve Health Trends Among Drug Injectors: Preliminary Results from the California Syringe Exchange Program Study,” paper presented in Atlanta, Georgia, June 18, 2002; Ricky N. Bluthenthal, Rachel Anderson, Neil M. Flynn, Lynell Clancy, Kathryn Anderson, James G. Kahn, and Alex H. Kral, “Legal status and syringe exchange program clients’ HIV risk, knowledge, use of ancillary services, and satisfaction: Preliminary results from the California SEP Study,” paper presented at the 130th American Public Health Association Annual Meeting, Philadelphia, Pennsylvania, November 9-13, 2002; Alex Kral, Rachel Anderson, Neil Flynn, Lynell Clancy, Kathryn Anderson, Andrea Scott-Hudson, Jim G. Kahn, and Ricky Bluthenthal, “HIV risk behaviors among IDUs at 23 California Syringe Exchange Programs,” paper presented at the 4th National Harm Reduction Conference, Seattle, Washington, December 1-4, 2002. 67 SB 1785 was modeled on similar legislation in Connecticut, New Hampshire, New York, and Maine; on July 25, 2003, similar legislation was signed into law in Illinois. See AIDS Foundation of Chicago, “Blagojevich Signs Syringe Bill,” July 25, 2003. 68 For an explanation of one-for-one exchanges, see “The need for alternatives to syringe exchange,” below. 69 Letter from Gov. Gray Davis to members of the California State Senate, September 30, 2002.
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