May 06, 2008
Abbott makes hash of needle-exchange program


The only government-funded needle exchange program in Texas was quashed before it could even begin, after Attorney General Greg Abbott said today that the law wasn't clear enough for a new Bexar County pilot program to move forward.

The decision means that San Antonio prosecutors are likely to move forward with their case against a 73-year-old chaplain, Bill Day, who was ticketed for passing out needles earlier this year.

Prosecutors have said that drug charges against Mr. Day, who is also living with AIDS, and two others might be dropped if Mr. Abbott decided that legislation creating the program - which passed with support from both Republicans and Democrats - was strong enough to bypass the Texas Controlled Substances Act, which outlaws paraphernalia.

Abbott's opinion is here. I'm in agreement with Grits:

I'm not a lawyer, but I find the stance ridiculous. The Legislature authorized a needle exchange pilot in Bexar County, which by definition involves allowing needles to be exchanged with addicts. But according to Abbott, because:

the Legislature has expressly demonstrated its ability and willingness to exclude otherwise criminal acts from prosecution under the Texas Controlled Substances Act--but did not do so here--this office can neither assume nor legislate such an intent.

So in other words, Abbott believes the Legislature intended to allow a needle exchange program in San Antonio but simultaneously intended for participants - both addicts and government employees - to be prosecuted for engaging in it. That's angeringly stupid, but there's little to be done about it until the Legislature gets back to town.

It's also sadly typical of our Attorney General, who has a nasty habit of putting politics ahead of pretty much everything else he does. The needle-exchange bill was a bipartisan effort and is a proven lifesaver. Not that any of that matters to him.

What a waste. Both Abbott and Bexar County DA Susan Reed should be ashamed of themselves. I hope fixing this petty problem is a top priority for the next Lege. Read on for a press release from State Rep. Ruth Jones McClendon, who was one of the authors of the needle exchange bill.

State Representative Ruth Jones McClendon (D-House District 120) announced today that Attorney General Greg Abbott has issued his official opinion concerning the Bexar County disease-control and prevention pilot program, which would have authorized a ground-breaking needle exchange pilot program in Bexar County. The Opinion stated that the pilot program could proceed without the needle-and-syringe exchange component, although it had been authorized in the enabling legislation; however, if the County proceeds with the safe needle exchange program, the opinion states that participants in the program "would appear to be subject to prosecution."

Representative McClendon said, "Obviously, I am terribly disappointed that the safe needle exchange project cannot roll out this year as part of the overall disease-control pilot program, because the outcome would have been much more effective in saving thousands of lives and saving millions of taxpayer dollars at the same time. The concept of rehabilitation and restorative justice needs to be promoted as a meaningful part of our criminal justice system. 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."

McClendon also said, "I want to offer my sincere thanks publicly to Senator Jeff Wentworth for taking the lead on this matter and submitting the opinion request. Controlling the spread of infectious diseases such as Hepatitis C and HIV-AIDS obviously would benefit the public at large, the medical community, the courts, and the taxpayers of Bexar County. I also want to thank Judge Nelson Wolff, the County Commissioners and community development staff, Senator Bob Deuell, the Texas Medical Association and Dr. Janet Realini, Dr. Bill Martin, the volunteer consultants, and the many other persons and organizations who advocated and worked so diligently to promote legislative and community approval for this program."

Senate Bill 10, known as the Omnibus Medicaid Bill, authorized a disease-control pilot program in Bexar County, specifically targeting infectious diseases such as hepatitis C and HIV-AIDS, which cost the state around $110,000,000 per year. The pilot program arose from a successful amendment to Senate Bill 10 by Representative McClendon. S.B.10 passed the Legislature and was signed by the Governor, enabling Bexar County to operate a safe needle-exchange outreach effort. The law was scheduled to take effect September 1, 2007, but public implementation was put on hold after District Attorney Susan Reed raised objections in August, saying that it would be illegal to conduct such a program because, in her opinion, the law was defective. The County Commissioners decided to fund the planning phase and engage a coordinator for the program while awaiting the opinion from the Attorney General.

Senator Jeff Wentworth, Chair of the Senate Judiciary Committee (R-Senate District 25) had submitted the request for the AG opinion in regard to part of S.B.10. The issues raised against the needle exchange challenged the meaning and effect of the pilot program statutory language in regard to trial procedure matters and the legal defenses that could be presented in court. As Chair of the Senate Jurisprudence Committee, Senator Wentworth submitted the opinion request, to determine whether this program could go forward as intended by the Legislature.

Posted by Charles Kuffner on May 06, 2008 to Crime and Punishment
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