New Hampshire needle exchange debate raises prosecution questions

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CONCORD, N.H. >> As New Hampshire lawmakers decide whether to allow needle exchange programs, some of the biggest debate has been over how to handle the smallest amounts of drugs.

Under current law, hypodermic needles and syringes can be dispensed only by pharmacists, and possessing a syringe containing any amount of heroin or other controlled drug is a felony. But faced with the state's growing drug crisis, the Legislature is considering a bill that would both clear the way for programs that allow drug users to swap dirty syringes for clean ones and would decriminalize residual amounts of drugs in syringes. It passed the House on Wednesday and now heads to the state Senate.

The first part of the bill is not unusual; needle exchange programs already operate in more than 30 states. But the second provision is less common. Only five other states — New York, Connecticut, New Jersey, Kentucky and Nevada — explicitly exempt trace amounts of drugs from their controlled drug laws, said Scott Burris, a Temple Law School professor and co-director of the Robert Wood Johnson Foundation's Public Health Law Research program.

Other states have taken different approaches. In some states, courts have ruled there has to be a usable amount of a drug to constitute possession. In Maine, someone in the process of bringing a syringe with a residual amount to a needle exchange program would have an "affirmative defense to prosecution" under state law.

Similarly, Vermont drug users are not subject to prosecution when turning in syringes as part of an exchange program. Possession of any amount of an illegal drug is a crime in Rhode Island, though people are rarely, if ever, prosecuted for trace amounts found in syringes, according to the attorney general's office.

Still, the fear of prosecution is real, said Ryan Richards, a case manager at the HIV/HCV Resource Center, which operates a syringe exchange program in White River Junction, Vermont, near the New Hampshire border. About a third of the needle exchange clients are from New Hampshire, and some of them bleach their syringes before bringing them because they don't want to get caught with dirty needles in New Hampshire, he said.

"We know other people are too afraid to come in," he said. "People tell us they're trying to get their friends to come in, but they're too afraid."

Burris agrees. He said research has shown that the fear of arrest can influence the injecting and syringe disposal behavior of drug users.

"There is no public safety benefit to criminalizing syringe possession directly, or indirectly by prosecuting people for trace amounts," he said. "There is a public health danger to doing so."

At least 420 people died from drug overdoses in New Hampshire in 2015, more than double the total two years earlier.

During a public hearing on needle exchange bill, several law enforcement officials opposed the decriminalization provision. One police chief told lawmakers that sometimes, arresting people for possessing residual amounts of drugs is the best opportunity to get them into treatment. A state prosecutor argued that defining what constitutes a "residual" amount would be problematic, and he said law enforcement would no longer be allowed to consider such needles as drug paraphernalia when applying for search warrants.

Syringe exchange programs aim to keep dirty needles off the streets and prevent the spread of HIV, hepatitis C and other diseases that can be transmitted through sharing needles. The first programs were started in the late 1980s in response to the growing AIDS epidemic, and by 2015, more than half the states had taken at least some action to make syringes more legally accessible, said Burris.

"The big change in the last couple of years has been the realization among a number of the inactive states that they could be facing their own epidemics of HIV from drug use," he said.

Indiana and Kentucky, which both saw outbreaks driven by pill users starting to inject, are among the most recent states to pass needle exchange legislation.

In Indiana, state Rep. Ed Clere, the New Albany Republican who sponsored that legislation, said the issue of residual heroin in returned syringes never came up during the debate. But he said the law indirectly addressed that issue because it bars a person's participation in an exchange from being used as the sole basis for drug-related charges against them.

Clere said the goal of the exchanges, after all, is to reduce needle sharing and the spread of diseases.

"If someone walks into a syringe exchange site with used needles, the fact that they've shown up at that site can't be a basis for law enforcement action against them under this law," he said Thursday.


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