The long-simmering battle over providing injection drug users with clean needles in return for used ones is heating up again in New Jersey. Despite the fact that nearly half of all new HIV cases in the state are related to injection drug use, nearly twice the national average, New Jersey is one of only five states that require a prescription to purchase a syringe and, along with neighboring Delaware, one of only two states that have not passed laws explicitly allowing needle exchange programs (NEPs).
The situation is even worse in the resort town of Atlantic City. According to the city's HIV prevention staff, almost 60% of new HIV cases in the city are caused by needle-sharing, and the HIV rate among black males is among the highest in the state.
Supporters of NEPs cite numerous scientific studies to demonstrate that giving out clean needles to drug users saves lives by reducing infection rates for diseases such as HIV and Hepatitis C. Opponents claim that NEPs encourage or facilitate drug use.
Supported by a legal analysis provided by Roseanne Scotti of the Drug Policy Alliance's (http://www.drugpolicy.org) New Jersey office, last month Atlantic City Mayor Lorenzo Langford announced that the city could and would legally operate a NEP under a 1999 revision of the state criminal code. But despite language in the criminal code that seems clear on its face, and despite the contentions of Scotti, needle-exchange law experts, and city attorneys in Atlantic City and Camden, first a local prosecutor and now New Jersey Attorney General Peter Harvey have issued opinions stating that a city-operated NEP would be illegal.
While the nay-saying opinions have not stopped the city's planned NEP program in its tracks – in the end the courts, not the Attorney General, interpret the law – they have put it on hold at least temporarily, said Gene Brunner, HIV coordinator for the city. "We are not looking to get into a fight with the county prosecutor and the attorney general," he told DRCNet. "Now that Sen. Gill has introduced that bill to allow cities to do NEPs, we will see how that plays out. The legislature goes on break on June 30, then it is up to us to decide how to proceed. In the meantime, we are still doing our homework on NEPs, getting ready to go."
"As part of the consolidation of the criminal code, the legislature moved authority over needle access from the food and drug section to the criminal code," explained Scotti. "The existing language on needle access included a list of individuals and entities that were exempt from the restrictions on possessing needles without a prescription. During the 1999 revision, they broadened the language to say these people and governmental entities were exempted not just from the ban on possessing needles but also from the ban on distributing them," she told DRCNet.
"The law is similar in effect to the law in California," she added. Although NEPs typically remain illegal in California, cities or counties can get around the law by declaring a health emergency, and have done so in most of California's large cities.
Scotti's analysis is correct, said Temple University law professor Scott Burris, a leading expert on needle exchange law, who told the Press of Atlantic City he would help represent the city if it came to that. "I look forward to finding out exactly what legal objection the attorney general has," Burris said. "The statute and its legislative history clearly show that local governments are exempt from the law against distributing syringes."
Burris will have to wait for a court case to find out Attorney General Harvey's objections, because he has not made them clear. "The attorney general agrees with the legal advice provided by the prosecutor," was all Harvey spokesman Chuck Davis told the Press on May 14. The prosecutor referred to is Atlantic County prosecutor Kevin Blitz, who a week earlier had issued an opinion against the NEP. In that opinion, Blitz argued that the 1999 criminal code revision only exempted the delivery of needles to people who had prescriptions.
Bring it on, said Scotti. "The officials of Atlantic City clearly have the legal authority to do what they're doing," Scotti said. "If the county prosecutor or the attorney general choose to challenge that in court, it would be ultimately, as always, for a judge to decide. We are confident that the judge, looking at the law, will find that the city is well within its legal authority in establishing such a program."
But arguments over the scope of the 1999 law revisions are on the back burner for now, as all eyes turn to Sen. Gill and her bill that would make clear the city's authority to operate a NEP. Gill, a prominent leader of the legislative black caucus, could persuade other black legislators to support needle exchanges. Last year, black Democratic state senators led by Ronald Rice (Essex) and Sharpe James (Newark) played key roles in killing a NEP bill.
"I will have to bring them all on board," Gill told the Press. "The community that's dying looks like them, and we have the statistics to show that whatever we're doing, it's not effective. The HIV statistics for the state are too disturbing for the state to ignore," she said. "Those are devastating numbers," Gill continued. "This is a health issue. If a municipality feels conditions have reached epidemic proportions, they should be allowed to do needle exchange."
But the clock is ticking toward the June 30 recess, and Atlantic City is eager to go. "If you look at the rate of HIV infection, particularly among African-Americans, it's off the charts," said Brunner. "We have a lot of support in the community, including from law enforcement and some black clergy, and we've also had a lot of letters and faxes supporting us from outside the community. We need to do something about this now."