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Regarding Legislation that Would Decriminalize Syringe Possession and Increase Access to Sterile Syringes

March 15, 2015 — Regarding Legislation that Would Decriminalize Syringe Possession and Increase Access to Sterile Syringes

Subject: A.5471 (Gottfried)/S.4099 (Rivera),
A.6007 (Assembly Health and Mental Hygiene budget resolution)

Position: SUPPORT

Subject: A.3007/S.2007 (Executive Health and Mental Hygiene Budget)

Position: OPPOSE

Since 1992, New York has sanctioned the practice of making sterile injection equipment available to injection drug users (IDUs) through syringe exchange programs in order to combat the spread of HIV and other infections. 1  In 2000, the NYS legislature authorized the Expanded Syringe Access Program (ESAP), which significantly increased access to sterile syringes. 2  These efforts have been definitively linked to dramatic reductions in the spread of HIV among IDU communities, as well as the general public. 3

In June 2014, Governor Andrew Cuomo announced a multi-pronged approach to ending the AIDS epidemic and reducing the number of new HIV infections in New York to 750 annually by the year 2020. As he noted then, “New York State has achieved a 40 percent reduction in new HIV cases and significant decreases in HIV incidence. . . . New York has eliminated HIV transmission via blood products; virtually ended mother to child HIV transmission; and decreased new HIV diagnoses due to injection drug use by 96% since the mid-1990s.” 4

Despite these successes, serious challenges remain. Many IDUs across the state do not know where to obtain sterile syringes, and those who do are often prevented from purchasing sufficient supplies to meet their needs. In addition, those who participate in state-authorized programs continue to face arrest and prosecution which deters them from obtaining new syringes and safely returning used ones.

A.5471/S.4099 and A.6007, the Assembly Health and Mental Hygiene Budget Resolution, 5  would enact three critical reforms to address these impediments to our state’s most effective HIV/AIDS prevention programs. The bill would allow those authorized to sell syringes to advertise this service to the public. It would lift restrictions on how many syringes a user could purchase so that users have sufficient supplies to meet their needs. And it would decriminalize the possession of syringes – ending decades of conflict between public health law and policy and the state’s penal code. Ensuring that participants in public health programs who obtain sterile syringes and dispose of them properly do not face arrest and prosecution will enhance the effectiveness of New York’s public health interventions, and continue to reduce the spread of blood borne disease.

In his 2015-2016 executive budget proposal, Governor Cuomo also included a measure aimed at improving syringe access. 6  However, while the executive budget proposal would allow ESAP retailers to advertise and allow participants to purchase the number of syringes they need, it stops short of decriminalizing syringe possession, instead amending the law to clarify that existing references to lawful possession under the public health law are references to ESAP and SEPs. We believe that the Governor’s budget proposal does not go far enough to address the problem and will continue to leave program participants vulnerable to arrest and prosecution for carrying hypodermic equipment in compliance with the law.

Because we believe all of the reforms contained in A.5471/S.4099 and the Assembly budget resolution are critical to ensuring that those most at risk of contracting blood-borne diseases are not placed in jeopardy of arrest for utilizing state-sanctioned health protection programs, and to meeting the state’s goal of ending the AIDS epidemic as supported by the New York State Constitution’s commitment to promoting public health, NYCLU urges the legislature to adopt Part I of the Assembly health and mental hygiene budget in whole, or if this issue is resolved outside of the budget negotiation process, approve A.5471/S.4099 as a stand-alone measure.

New York’s History of Reducing HIV by Allowing Access to Sterile Syringes

In the early years of the HIV epidemic, community activists in New York City began to address the impact of injection drug use on the spread of HIV by distributing sterile syringes and collecting contaminated ones. These efforts first won official approval in 1988 when Mayor Koch and the state Department of Health (DOH) provisionally approved the City health department’s pilot implementation of the first publicly-subsidized needle exchange program in the United States. 7

Four years later, the DOH adopted regulations to allow syringe exchange program (SEP) operation, and in 1992 a handful of state-authorized programs throughout New York City began providing injection drug users with sterile equipment in exchange for used syringes. In the years that followed, the state approved programs in Buffalo, Rochester, Syracuse, and other locations – and as of January 2015, there are 24 SEPs operating statewide at more than 60 sites. 8  SEPs serve the dual purpose of providing clean equipment and preventing used syringes from being discarded where others might accidentally be pricked or pick them up for re-use. Studies consistently show that SEPs radically reduce the rate of infection due to needle sharing and re-use, and result in no increase in substance use, criminal activity, or improper syringe disposal. 9

In 2000, the DOH proposed – and the legislature approved – an Expanded Syringe Access Program (ESAP) for New York, allowing IDUs to purchase clean equipment and turn over used equipment at approved locations such as pharmacies and medical facilities. 10  These programs advance the same fundamental public health ideal: to stop the spread of infection, every injection drug user should have access to sterile equipment for every injection.

However, in order for these critical programs to meet their objectives, injection drug users have to be aware of where they can access sterile syringes, and they must be allowed to obtain sufficient supplies to meet their needs. Perhaps most important, they cannot be deterred from participating in effective disease prevention because they fear arrest and prosecution.
Barriers to Accessing Sterile Syringes

For IDU participants, knowing where to purchase sterile equipment is the most fundamental aspect of ESAP – yet current state law prevents pharmacists and other authorized sellers from advertising their participation in the program. While the ESAP-approved provider list is available online, a simple decal on a nearby store window could notify those in the community who need access to sterile syringes that their local pharmacy is somewhere they can turn. 11  A.5471/S.4099 and A.6007 would amend New York’s Public Health Law to allow retailers to advertise their participation, permitting these providers to reach those who need them.

Surveys of ESAP participants reveal a disparity between what program participants need and what the program can lawfully supply that is easy to fix. Under current law, participating retailers are only permitted to sell 10 syringes per participant visit. In turn, participants report that while they may visit pharmacies weekly, they usually inject at least twice daily, averaging 14 injections per week. 12  To encourage compliance with intended practice – clean equipment for each and every injection – A.5471/S.4099 and A.6007 would strike the Public Health Law provision that limits ESAP purchases to ten or less so that participants can purchase enough syringes to meet their needs. 13

Fear of arrest and prosecution for syringe possession is perhaps the greatest barrier to the effectiveness of these proven public health measures. Since 2001, New York’s public health law has authorized SEP and ESAP participants to lawfully obtain and possess syringes. However, despite this clear directive, New York’s penal law continues to criminalize syringe possession. Despite decades of public health law and policy, state and federal court decisions, 14  and amendments to relevant penal law provisions, 15  IDUs continue to report arrests and prosecution for participating in state-authorized syringe exchange programs. 16

In order to boost participation and eliminate the incentive to unsafely discard used syringes, registered SEP and ESAP participants are provided legal exemption from criminal penalties for syringe possession, including used syringes that may contain drug residue. However, program participants are arrested for syringe possession over a thousand times annually, despite the ability of law enforcement officers to verify a participant’s exemption by phone. Even with enhanced training on program exemptions and appropriate verification methods, these arrests have only increased, and the consequences of entanglement with the criminal justice system are all too often amplified for those living with addiction.

The time has come to put an end to this deadly conflict of laws and finally repeal the outdated and no longer justified laws against syringe possession in New York State.

To End the AIDS Epidemic: Lift Barriers to Prevention

Syringe possession was criminalized in New York over six decades ago; the justification at the time was to reduce “illicit drug traffic” by targeting the user. 17  Today, this type of law is not merely in conflict with state public health policy promoting access to clean syringes; it is a vestige of a failed drug policy approach that New York has long since rejected. The law must not discourage drug users who bring used syringes to authorized sites for proper disposal in accord with public health law.

A.5471/S.4099 and A.6007 would repeal Penal Law § 220.45 and amend Penal Law 220.03 to ensure that IDUs who access sterile syringes to protect their own health and dispose of them properly to protect the public health are not deterred by fear of arrest.

New York’s syringe access and exchange programs are intended to stop the spread of HIV among vulnerable populations, protect public health, and reduce the harm of injection drug use to individual users, their families, and the public at large. While these programs have been exceedingly successful in meeting these objectives, any public health program can only be as effective as the extent to which target populations participate – and incentives for participation are gravely diminished when users have difficulty obtaining adequate supplies and face law enforcement consequences despite compliance with the law.

Because A.5471/S.4099 and A.6007 would further the critical public health goals at which harm reduction programs are aimed, and ensure that existing law does not conflict with public health efforts, the NYCLU strongly encourages lawmakers to adopt, in whole, the language included in Part I of A.6007 in the final state budget. If this issue is not resolved in the state budget negotiations, we encourage lawmakers to immediately adopt A.5471/S.4099.


1  10 N.Y.C.R.R. 80.135, Authorization to conduct hypodermic syringe and needle exchange programs (May 1992).

2  N.Y.S. Dep’t of Health, “Expanded Syringe Access Program (ESAP): Overview of the Law and Regulations” (rev’d Nov. 2013), available at

3  N.Y.S. Dep’t of Health, AIDS Institute, “Comprehensive Harm Reduction Reverses the Trend in New HIV Infections” (March 2014) [AIDS Institute Report], available at

4  Office of the N.Y.S. Governor, “Governor Cuomo Announces Plan to End the AIDS Epidemic in New York State” (June 29, 2014), available at

5  Part I, §§ 3-6.

6  S.2007/A.3007, Part I, §§ 3-7.

7  AIDS Institute Report, supra note 2, at 7; NYC Dep’t of Health and Mental Hygiene, “Protecting Public Health in New York City: 200 Years of Leadership” (April 2005) at 57, available at

8  N.Y.S. Dep’t of Health, “Directory of Program Sites and Hours of Operation” (Jan. 2015), available at

9  See Kathleen Sebelius, Sec’y of Health and Human Servs., “Determination That a Demonstration Needle Exchange Program Would be Effective in Reducing Drug Abuse and the Risk of Acquired Immune Deficiency Syndrome Infection Among Intravenous Drug Users,” 76 Fed. Reg. 36, 10038 (Feb. 2011), available at For a list of studies, see U.S. Dep’t of Health and Human Servs., Substance Abuse and Mental Health Servs. Admin., “Syringe Exchange Program Studies” (Feb. 2011), available at

10  N.Y. Pub. Health L. § 3381(1)(c) & (5) (authorizing pharmacies to sell or furnish syringes under certain circumstances as an exception to the general rule that the sale of syringes is unlawful; and authorizing individuals to possess such syringes).

11  Pharmacies in the UK have long permitted advertising of needle exchange services without incident. See, e.g., Kay Roberts, “Legal Considerations for Community Pharmacists, in Drug Misuse and Community Pharmacy” (2003), available at (“Advertising for pharmacy needle exchange schemes tends to be very low-key. Participating pharmacies tend to display a recognized window sticker in their pharmacy window. In most cases this is the now nationally recognized two arrow logo, although a small number of local schemes may have their own logo as well. The two arrow logo is extremely discreet and has no significance to people unaware of the scheme. It is extremely important to have a nationally recognized logo, as drug users, like the rest of us, do not always stay in the same place and need to be able to identify participating pharmacies easily, if they do visit another area.”).

12  See, e.g., N.Y.S. Dep’t of Health, NYS Aids Advisory Council, “Report on Syringe Access in New York State” (Jan 2005), available at

13  N.Y. Pub. Health L. § 3381(1)(c)(ii).

14  See, e.g., Roe v. City of N.Y., 232 F. Supp. 2d 240, 257 (S.D.N.Y 2002) (“It would be bizarre to conclude that the Legislative intent was to permit the creation of needle exchange programs in order to remove dirty needles, while at the same time frustrating that goal by making the essential steps of participation criminal…. Since unlawful possession of a hypodermic needle is defined by reference to the Public Health Law and thereby the regulations authorizing registered participants, there is no underlying crime. Logically and as a matter of law there can be no probable cause.”).

15  See, e.g., L. 2010, Ch. 91 (amending penal law to clarify that there is no criminal violation “when a person possesses a residual amount of a controlled substance … in or on a hypodermic syringe or hypodermic needle obtained and possessed pursuant to [ESAP or SEPs].”)

16  Alexa Kasdan, et al., “Stuck in the System: Expanding Syringe Access by Reconciling the Penal Code with the Public Health Law” (Jan. 2010), available at

17  L. 1952, Ch. 91; L.1956, Ch. 692



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