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Legislative Memo: Lawful Possession of Hypodermic Syringes

In order to halt the spread of HIV through injection drug use–the leading cause of HIV transmission–New York’s public health law encourages injection drug users (IDUs) to dispose of contaminated syringes and obtain sterile ones from state-licensed syringe access programs. At the same time, the state’s penal law criminalizes syringe possession.

Those lawfully utilizing syringe access programs face arrest and prosecution pending their ability to show that their syringe possession is authorized by the public health law. As a result, IDUs are deterred from using syringe access programs, placing them and their communities at heightened risk of infection.

S.5620A would correct this disconnect between the public health law and the criminal law by amending two sections of the penal code to cross-reference the public health law. This needed correction will help clarify the responsibilities of law enforcement to refrain from arresting people lawfully participating in HIV prevention programs, as well as the rights of those who utilize those programs. The NYCLU strongly urges swift passage of this important legislation.

New York State’s Public Health Law authorizes IDUs to obtain sterile syringes and safely dispose of contaminated ones through two initiatives—the state’s community based Syringe Exchange Programs (SEPs) and the pharmacy based Expanded Syringe Access Program (ESAP). Both initiatives are designed to stop the spread of HIV and other blood-borne infections which are easily transmittable by contaminated syringes.

New York’s criminal law, however, continues to treat the possession of syringes as a criminal offense. While the penal code provides an affirmative defense for those whose syringe possession is otherwise authorized, those found in possession of syringes can be arrested, prosecuted, and held in jail while they attempt to prove that their possession of syringes is authorized.

This practice deters IDUs, who are at the highest risk of exposure to infection, from utilizing state prevention programs because they fear arrest and detention, despite the fact that their actions are authorized by the public health law.

New York has been a national leader in reducing HIV transmission among injection drug users through various syringe access efforts, including community-based syringe exchange programs and the Expanded Syringe Access Program (ESAP) authorized by Section 3381 of the Public Health Law. There are now 16 SEP providers and 3289 registered ESAP providers throughout the state as of 2009.

State regulations provide that all organizations approved by the State Health Commissioner to conduct SEPs in New York adhere to policies and procedures approved by the New York State Department of Health AIDS Institute.

These policies include providing syringe exchange participants not only with access to sterile syringes and a method of safe disposal of contaminated syringes, but also with HIV and Hepatitis prevention education and referrals to healthcare and social services, including substance abuse treatment programs.

Under ESAP, up to ten syringes may be sold or furnished to a person 18 years of age or older without a prescription by pharmacists, health care facilities, and health care practitioners who have registered with the New York State Department of Health.

According to state regulations, hypodermic needles and syringes provided through the ESAP are accompanied by a safety insert explaining proper use, risk of blood borne diseases, proper disposal, dangers of injection drug use, and how to access drug treatment as well as information about HIV/AIDS.

Despite New York’s leadership in reducing HIV transmission through these programs, the state’s penal and public health law currently operate at cross purposes when IDUs use syringe access programs. Many program participants experience arrest and prosecution for possessing syringes.

This legal ambiguity makes it less likely that IDUs will consistently utilize syringe access programs. As a result, IDUs are more likely to improperly dispose of used syringes in public spaces.

The primary goal for the syringe access programs is the reduction of blood borne illnesses. By providing access to clean syringes, these programs reduce the incidence of needle sharing, a lead cause of HIV transmission. Such programs have been shown to be effective.

One study of 96 U.S. cities has shown that the rate of HIV infection amongst IDUs was twice as high in the cities without such access programs (13.8% vs. 6.7%). Moreover, they do not increase the use of drugs or the number of drug injections.

Additionally, a study of ESAP’s implementation in Harlem observed no evidence of harmful effects from discarded needles/syringes or of pharmacy altercations. Apart from preventing disease, New York’s syringe access programs save the state millions of dollars in healthcare costs associated with treating infections among IDUs, as the cost of prevention is less than the cost of treatment.

The statutory ambiguity that exists in the state penal law undermines the efficacy of New York’s syringe access programs. The proposed legislation would harmonize the criminal statutes with section 3381 of the Public Health Law, by explicitly exempting individuals possessing syringes through New York’s syringe access programs from arrest under sections 220.03 and 220.45 of state penal law.

Arresting and prosecuting individuals who are lawfully and responsibly using state-authorized public health programs not only compromises civil liberties, it undermines the gains in public health and safety achieved by New York’s syringe access programs. S.5620A will clarify law enforcement responsibilities to enforce the penal code while at the same time providing the necessary assurance to IDUS so that they are no longer deterred from utilizing programs designed to stop the spread of HIV/AIDS.

The NYCLU urges the legislature to pass this important legislation.

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