Drug Paraphernalia Laws

At least forty-five states and the District of Columbia have drug paraphernalia laws. Most of these statutes are based on the Model Drug Paraphernalia Act formulated by the Drug Enforcement Administration in 1979. The act was designed as an amendment to the Uniform Controlled Substances Act.

The term "drug paraphernalia" is widely defined in these statues to include any equipment, product, or material of any kind that is primarily intended for use in introducing controlled substances into the human body. Clearly, hypodermic syringes and needles fall within this domain. Drug paraphernalia statues ban the manufacture, sale, distribution, or possession of a wide range of devices if the person knows that such devices may be used to introduce illicit substances into the body.

Therefore, drug paraphernalia laws require the presence of criminal intent to supply or use the equipment for an unlawful purpose. Under these statutes, it is not illegal to sell or distribute hypodermic needles and syringes when there is no knowledge that they will be used to inject illicit drugs. A pharmacist who sells hypodermic syringes and needles over the counter believing they will be used for a lawful purpose—for example, by a diabetic to inject insulin—does not commit an offense under drug paraphernalia laws.

The trend toward comprehensive drug paraphernalia laws was advanced by the U.S. Supreme Court's decision in Village of Hoffman Estates v. Flipside, Hoffman Estates Inc. [455 U.S. 489, rehearing den, 456 U.S. 950 (1982)]. The court held that broadly worded local laws not based on the Model Act were constitutionally valid. Many courts have followed Flipside and upheld statutes with broad definitions of drug paraphernalia [Camile Corp. v. Phares, 705 F.2d 223 (7th Cir. 1983); Garner v. White, 726 F.2d 1274 (8th Cir. 1984); Stoianoff v. Montana , 695 F.2d 1214 (9th Cir. 1983)].

In July 1984, the federal government further limited the supply of sterile injection equipment by enacting an umbrella statute to encompass any activity involving drug paraphernalia crossing interstate lines. The Mail Order Drug paraphernalia Control Act [Anti-Drug Abuse Act of 1986, ss. 1821-1823, PL 99-570, 21 U.S.C. 863 (Use of Postal Service for Sale of Drug Paraphernalia)] originally was designed to prohibit use of the U.S. Postal Service to send equipment to be used for drug injection [Cong. Rec. H665556 (daily ed. September 11, 1986)]. The plain language of the statute also covers "any offer for sale and transportation in interstate or foreign commerce," or import or export of drug paraphernalia [21 U.S.C. 857(a)]. Furthermore, it contains a similarly broad definition of drug paraphernalia [21 U.S.C. 857(d); the act also authorizes seizure and forfeiture of drug paraphernalia; 21 U.S.C. 857(c)], and has survived constitutional scrutiny [United States v. Main Street Distributing Inc., 700 F. Supp. 655 (E.D.N.Y. 1988)]. The importance of the federal statute is its introduction of federal jurisdiction in an area traditionally reserved for the states.¹⁸

There is wide discretion in enforcement and prosecution under federal and state statutes. A state that chooses not to repeal its drug paraphernalia law could decide not to enforce it based on the public health imperatives of the HIV epidemic. If a state did this, federal authorities conceivably would take a different view and rigorously enforce the Mail Order Drug Paraphernalia Control Act. This means that the objectives of law-enforcement and public health authorities, as well as those of federal and state agencies, must be harmonized.

Drug paraphernalia laws, including the federal Mail Order Drug Paraphernalia Control Act and comprehensive state statutes, present formidable obstacles for the injection drug user who complies with public health advice to use sterile injection equipment. Even if the user can buy a sterile hypodermic syringe over the counter, he or she still can be prosecuted for possessing it; the user must demonstrate a valid medical reason for possessing the equipment. Sometimes drug users are arrested for carrying syringes or even bottles of bleach.¹⁹ To arrest the user who, in abiding by safer practices that the health department encouraged and aided, carries a syringe or bleach defeats the purpose of public health.

The impact of drug paraphernalia laws, therefore, is not simply the significant limit on the street supply of sterile injection equipment. The law also creates a marked disincentive for users to carry sterile equipment when they frequent a ''copping place." Yet drug users need to be carrying sterile injection equipment precisely at this time, when they are buying and/or injecting heroin or cocaine.

Needle Prescription Laws

Drug paraphernalia laws do not prohibit or regulate the sale of hypodermics if the seller doesn't have any reason to believe that the equipment will be used for injecting illicit drugs. Accordingly, over-the-counter sales of hypodermic syringes and needles are permitted in most jurisdictions. Pharmacists are not obliged to question the buyer's intent when he or she purchases the equipment. Indeed, there aren't any professional guidelines for pharmacists in this respect. All of this leads in part to wide variations in sales practices.²⁰

Racial and other biases can potentially limit the opportunities for drug users to purchase hypodermic syringes and needles at pharmacies.²¹ Some pharmacists sell to all buyers, while others do not sell to those who show visible signs of injection drug use or cannot offer a plausible medical justification.^{22, 23, 24}

Over-the-counter sale of hypodermic needles and syringes is significantly restricted in ten states (California, Delaware, Illinois, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, and Rhode Island) and Puerto Rico²⁵ (Table). These jurisdictions have needle prescription laws. Such laws date back to the New York Boylan Act of 1914 [People v. Gordon, 336 N.Y.S.2d 753 (1972)].²⁶ The modern statutes prohibit the sale, distribution, or possession of hypodermic syringes or needles without a valid medical prescription. [See, for example, New York Consol. Laws, c. 40, para. 1747d(3) and LSA-RS 40: 962 Subd. B; Massachusetts G.L.C. 94C, para.²⁷ Authority to possess hypodermics can be granted under several of these laws by the state commissioner of health, as occurred in New York City.] Needle prescription laws are more onerous than drug paraphernalia laws because they do not require criminal intent. Needle prescription laws that are regulatory and do not impose criminal liability on the buyer have been upheld by the courts [People v. Bellfield, 230 N.Y.S.2D 79, aff, 183 N.E.2d 230 (1962); also see State v. Birdsell, 104 So.2d 148 (1958)].

Under needle prescription laws, physicians may write prescriptions for hypodermic syringes and needles for patients under their care only if there is a legitimate medical purpose. A pharmacist must keep careful records of the sale of syringes and needles. If an injection drug user is charged with illegal possession of paraphernalia, the user must prove that he or she has sufficient authority to possess them [Commonwealth v. Jefferson, 377 Mass. 716, 387 N.E.2d 579 (1979)].

The "legitimate medical purposes" doctrine strengthens the regulatory effect of needle prescription laws. The doctrine is intended to hold a prescription invalid unless it is prescribed in good faith for a therapeutic purpose. Physicians have had their licenses withdrawn or have been convicted for improperly prescribing drugs or drug paraphernalia [Minnesota ex. re. Whipple v. Martinson, 256 U.S. 41 (1921)].

It is not clear if a physician could be successfully prosecuted today for prescribing sterile injection equipment for a drug user. Faced with the exigencies of the HIV epidemic, physicians could claim a good-faith intention to prevent the patient from contracting or transmitting HIV infection. Prescribing a sterile needle and syringe in this situation would not necessarily comport with prevailing medical practice. Yet the consensus of public health opinion is that intravenous drug users should have access to sterile injection equipment to impede the needle-borne transmission of disease.²⁷ So courts might well sustain the legitimacy of a medical prescription for sterile injection equipment to safeguard the health of the patient and the patient's needle-sharing and sexual partners.

Proposal for Repeal of Needle Prescription Statutes

Repeal of needle prescription laws is supported by many respected public health and bar associations.^{27, 28, 29, 30} In effect, a repeal would allow pharmacists and other authorized retailers to sell hypodermics over the counter and without a medical prescription. Syringes and needles could be sold the same as other nonprescription medications and health materials. Because the state would not be instrumental in distributing drug injection equipment, the state would not be tacitly approving its use. Furthermore, repeal of these laws would not have a revenue impact on state legislatures. The only effect would be removal of the state as an obstacle to providing the sterile equipment that injection drug users need in order to comply with public health advice about protecting themselves and others from the needle-borne spread of HIV.

Most states and virtually all of Western Europe do not have needle prescription laws. These and many other jurisdictions permit over-the-counter sales of hypodermic syringes and needles.³¹ Their experience has not shown any obvious adverse effects. They generally have a lower prevalence of HIV infection among drug users, and lower rates of drug use than states that do have such laws.^{26, 28} Though broad data of this kind do not provide scientific proof of a causal effect, they do supplement reports from drug users and researchers who say that sharing is related to the inaccessibility of sterile equipment.³²

If a state were to repeal its needle prescription statutes, it would not necessarily have to abandon attempts to regulate the sale of hypodermic needles and syringes. Legislators concerned about the sensitivity of communities can require that sales take place only in certain locations, such as pharmacies, and that these items not be in view of customers. Social science research indicates that behavioral change is enhanced when people have full and accurate health information and the means to act on that information.³³

In 1992, Connecticut gave policy makers and researchers their first opportunity to evaluate such proposals for reforming drug paraphernalia and needle prescription statutes. The legislature enacted a statute relaxing criminal prohibitions on the purchase and sale of hypodermic needles and syringes [Connecticut Public Act No. 92-185, as amended by May session, Public Act No. 92-11)]. The statute authorizes licensed manufacturers, wholesalers, and pharmacists to sell—and individuals to buy—ten or fewer hypodermic needles or syringes. The Centers for Disease Control plan to evaluate the impact of this law.

Harmonizing the Objectives of Law Enforcement and Public Health

In November 1988, a pilot needle and syringe exchange was established in New York City after two years of political debate.³⁵ The mayor, acquiescing to pressure from neighborhood groups, declared that any exchange site within 1,000 feet of a school or day care center would be unsuitable. The program, therefore, was established on only one site—at the city health department itself. The department is adjacent to a city jail, the courts, and central policy headquarters.⁵ The new mayor, David Dinkins, aborted the experimental program in early 1990 after only two years of operation because it had too few enrollees. (Another program has since been established.) This was not surprising, given the program's inaccessibility to most drug users and their fear of arrest and prosecution for possession of drug paraphernalia. Drug users, after all, would not have been expected to know that the state health commissioner had granted a waiver from the state needle-prescription law for the program.

The failure of New York City's exchange program to recruit a significant number of clients illustrates the importance of harmonizing the objectives of law enforcement and public health. The probability of success of needle and syringe exchanges also depends on the cooperation of city and state law-enforcement officials. If a city of state attorney general challenges the legality of a program, as occurred in Washington state, or if police arrest clients or even visible survey a program, prospective clients are certain to be discouraged from using it. Clients have been arrested for violation of a municipal drug-loitering ordinance at exchanges, such as the one in Seattle, Wash., that are government sanctioned. In San Francisco, Calif., such arrests have taken place under drug paraphernalia laws despite a directive by the chief of police to make enforcement of these laws a low priority when it comes to exchange clients.³⁶

Criminal justice officials have discretion not to arrest and prosecute persons who violate criminal laws. Officials might exercise their prosecutorial discretion to overlook violation of drug paraphernalia laws when public health officials are operating needle exchange programs, but this discretion is an imperfect tool at best. It can be revoked at any time, it may not prevent street arrests (as the experience in San Francisco illustrates), and drug users have no way of knowing they won't be prosecuted, so they are reluctant to carry sterile equipment.

There needs to be a social contract among government departments that explicitly favors public health goals over law enforcement goals. This is justified by the seriousness of the needle-borne HIV epidemic. Law enforcement officers should not engage in surveillance or arrest any client of a needle-and-syringe exchange program sponsored or sanctioned by the public health department. The raison d'etre of drug control policies is to protect the health of the user and the public. When public health officials determine that exchange programs may serve as a bridge to treatment and reduce the spread of needle-based infection, the programs should take precedence over traditional law enforcement strategies. Drug control policies that fail to promote the health and safety of the community defeat their own purpose and lose legitimacy.

Establishing Authority for Needle and Syringe Exchanges

When legislators, public health officials, or community-based organizations set up needle and syringe exchanges, they may need to establish the legal authority for such programs. There are several legal strategies for bringing needle and syringe exchanges within the law:

• By establishing a specific statutory authority for the program.
• By obtaining a judicial declaration of lawfulness.
• By presenting a "necessity" defense against criminal prosecutions on a case-by-case basis.

Balancing Governmental Interests

The systematic refusal of courts to convict needle-and-syringe exchange volunteers under drug-paraphernalia or needle-prescription laws raises the question of the validity of these statutes. If the judicial system remains largely unconvinced that prosecution under these laws creates a greater public good than the breach thereof, can their continuation be justified as a matter of public policy? The reasoning of courts that public health exigencies of the needle-borne HIV epidemic outweigh the value of restricting the availability of drug injection equipment warrants consideration by legislatures. Legislative responses could include authorization of needle-and-syringe exchange programs, together with specific exemptions under existing criminal laws, or reform or repeal of drug-paraphernalia and needle-prescription statutes.

State-authorized exchanges have clear advantages over underground programs. Official exchanges can be designed to promote the public health and be established under carefully defined circumstances. These circumstances might include:

• Restricting exchanges to particular pilot sites.
• Requiring one-for-one exchanges.
• Mandating the provision of a full array of services and referrals, including diagnosis and treatment for drug dependency, HIV disease, sexually transmitted disease, and tuberculosis.
• Bleach and condom distribution.
• Carefully designed research.