Appendix B: Legal Approaches
In some cases, state legislation exists (or is sought) that explicitly authorizes syringe exchange/access programs – often as exemptions to existing and functioning paraphernalia laws. If well-crafted, this may be the most desirable form of legal sanction, as it means that a state or local legislative body considers syringe access to be a priority and approval of the SAP has been written into law. In some of these cases, any other appropriate legal barriers have also been addressed. Often, however, new legislation may codify unreasonable restrictions that otherwise may have been left open to a more generous interpretation. For example, while the SAP is able to operate with legal sanction, regulations on the possession of syringes may remain in place that could impact SAP participants. Or in some states, authorization is also required on a county and city level, which may create more barriers to actual implementation.
Authorization in some localities has been achieved when health departments – in an effort to meet a public health need – use their authority to issue waivers of paraphernalia laws to SAPs. In these cases, SAPs must comply with the terms of the waiver, which may impose strict program requirements. Waivers may also be issued on a pilot basis until program effectiveness can be demonstrated. Waivers may dictate location of the SAP, either by city or county, or with greater specificity wherein specific conditions are placed on SAP location (for example, 500 feet from any school, etc). Other criteria that may be included in legal waivers include the implementation of ancillary services at the SAP (such as referrals to drug treatment, etc), syringe distribution limits and/or documentation and evaluation components.
Legal authorization offers several obvious benefits, foremost of which is being able to operate without fear or threat of arrest or prosecution of program staff and volunteers from the police or other law enforcement. In addition, an approved SAP will have more opportunities to engage in outreach and open collaboration with other local organizations, such as AIDS service organizations and drug treatment programs. Authorized programs can apply for funding from government and private sources of funding, and may have an easier time securing resources in general. All of these factors may increase program sustainability in the long run.
Unless broad legislation exists that protects the right to provide syringe access, there can also be drawbacks to operating programs with legal waivers or other authorization schemes. Authorization may limit program autonomy, and be coupled with very strict requirements with regards to operating policies and procedures, sometimes in a manner that can undermine program effectiveness. Legal waivers may place caps on the number of syringes that may be distributed, and/or impose strict one-for-one limitations on the program. In addition, strict reporting requirements and/or bureaucratic red tape may occupy staff time and should be figured into resource assessments. Further, once programs begin operating aboveground, they run the risk of becoming the target of local community opposition, even despite legal sanction. Of course, any of these drawbacks must be also considered in relation to the many benefits of legal authorization.
Another approach to accessing legal protection for program operation is to seek a “declaratory judgment”. Declaratory judgments ask the court to preemptively rule on an action or issue, before arrest or other legal action has been taken. For example, some states have asked the courts to rule in favor of syringe access, thus granting permission to conduct programs out of public health necessity. In cases where the court approves the SAP, an important precedent can be set. However, in some states, declaratory judgments have ruled against syringe access programs, imposing increased barriers to eventual program implementation. Remain mindful of the political climate and build a strong and organized case if this route seems to be the most appropriate.
Some programs have claimed a research exemption in order to pave the way for syringe access. Local or state laws may include language that exempts participants engaging in scientific research from drug paraphernalia laws. By establishing the SAP as part of a research study – perhaps in collaboration with a university, school of public health or other scientific institution – programs have been able to justify their program. It is important to educate local law enforcement about the exemption and to get them on board to the greatest extent possible.
While this strategy has been successful for some programs, it can complicate sustainability should the exemption be challenged.
PUBLIC HEALTH EMERGENCY
It is possible for city or county health departments to declare a public health emergency that will effectively suspend pre-existing paraphernalia legislation. This will make it possible for SAPs to operate with approval of the local government and the benefits coupled with this, including operating without fear of prosecution and potential funding from government sources.
States of emergency will remain in effect until the emergency is declared over. It is likely that emergency status will have to be renewed with some regularity. This could pose a threat to program sustainability. In theory, the existence of the SAP will work to effectively reduce the spread of infectious disease, which could in turn threaten the legal basis for the program. For this reason, in cases where a state of emergency is in place, it is best to simultaneously engage in ongoing advocacy changes to legislation that may stifle ongoing program operation should the emergency status end.
Underground SAPs operate without explicit permission or sanction to provide syringes and despite existing paraphernalia laws in the jurisdiction. Historically, underground programs have often served as a precursor to legal entities. These programs often operate with a very small budget, if any. Activities are usually conducted by volunteer activists, working on the imperative that they cannot afford to stand by while drug users may be at risk for transmitting HIV, HCV and other infectious diseases while a simple solution exists. Underground programs may depend on donations of funding, syringes and other supplies to function. Perhaps most importantly, workers conducting underground syringe access risk arrest and prosecution with each and every syringe transaction they make.
There are numerous underground programs currently operating in the US and many well-established and authorized programs started underground. Although underground programs operate outside of the law, they may be tolerated by local law enforcement to some degree. Local authorities may be proponents of the program, recognizing the public health need and benefit. Law enforcement may feel that prosecution would not be a valuable and productive use of resources. However, sudden changes in the political climate and/or community opposition could easily threaten a program and any level of tolerance experienced.
Although they are extralegal, underground SAPs may still be able to secure funding for ancillary services from local and state health departments. Nonetheless, full collaboration with local community-based organizations (CBOs) and AIDS-service organizations (ASOs), as well as health departments may be difficult and can have an impact on outreach and getting the word out about available services.
Underground programs may also face challenges with staffing. Since these programs are usually made up of small groups of volunteers, a stable and steady workforce may be difficult to sustain. In addition, if the program lacks structure or leadership, variations in personality and program goals can lead to conflict and program management issues. Generally, working with deficient resources can be challenging for individuals and the SAP as a larger entity.
Despite the many challenges faced by underground programs, some may find operating without the bureaucratic requirements of regulators liberating. Underground programs are likely to exist with greater autonomy than regulated programs (for example, caps (or limits) on syringe distribution quantities and/or required one-for-one exchange) and will not face the same reporting and procedural requirements.