Not everybody at the DA's shop was against letting the needle exchange operate. Prosecutor Greg Gilleland declared:
What's the beef? The clear legislative intent was for this program to proceed as a trial program. It is a great idea, and the monies we as a society pay for uninsured medical care for HIV and Hep indigent patients greatly outweighs the cost of the needles.Ah, I thought, to myself, a prosecutorial breath of fresh air - actual respect for the law and legislative intent. But Bradley fired back that the Lege and the Governor approving a needle exchange program wasn't enough, that law enforcement had no discretion but to prosecute program participants:
Doesn't this exchange pretty much clarify the matter for a speedy AG opinion? ...
It's not like the IV abusers will not abuse IV drugs because they are not getting clean needles. They'll just keep using dirty ones. The multi-million dollar question is will the addicts avail themselves of the program, as many other states claim they do?
I don't know if this is a viable solution to the HIV and Hep epidemics that rage amongst the IV using population, but it sure makes sense to try it and see if it helps. It seems common sense that if we can prevent some of these folks from burdening our already bustin'-at-the-seams public healthcare system, more money could then be spend on indigent health care for those who did not catch their disease through IV drug abuse.
Not to mention saving hundreds or thousands from the horrible disease process involved in these diseases.
I would guess that the elected DA of Bexar County doesn't feel that it is her job to declare immunity from prosecution in the absence of actual law saying so. While the statements of legislators are nice, they are not supported in any manner by an actual, written defense. Legislative intent, alone, is not law. Legislative intent, when combined with an ambiguous statute, might help. Here, there is no defense or immunity, ambiguous or otherwise.I was pleased to see Gilleland made the same connection I would have in response:
"I kind of like it when prosecutors stick to the applying the law rather than making it up to suit situations."Yessirree Bob, you've hit the nail on the head, sir. This is exactly the same issue: Will prosecutors do what the Legislature tells them to or do they think they're above the law?
Isn't that what critics accused many prosecutors of doing with the ucw (unlawfully carrying a weapon) law from the previous session?
The Legislature does its thing in 140 days, everybody knows they can only get so much done, and reasonable people then figure out how to make it work in the intervening 19 months. Welcome to Texas government! But some prosecutors just wanted to throw up barriers. An Assistant County Attorney from Boerne replied that she understood the positives of needle exchange programs, but:
My point is, why is it legal for the government to hand out syringes FOR THE PURPOSE OF ILLEGAL DRUG USE but not legal for a citizen to possess it for that same purpose? Especially when just possessing it is a Class C but delivering it with intent for injection is a Class A?Why? It's simple. Because the Legislature CHANGED THE LAW! What else do you need? Possession of dirty needles is illegal except for participants in the needle exchange program. Other states have figured out how to make allowances, it can't be that hard to draw the line. DA John Bradley wants to push the envelope in the opposite direction the Lege intended, asking:
Can we prosecute for possession of the trace amount of illegal drugs in the needles? Or, is the defendant also getting immunity for that felony, too?Again the obvious answer is, no, not for needles brought to the legislatively sanctioned needle exchange site. How difficult is it to be flexible and work with public health offiicials to make the program work? Instead these characters seem to go out of their way to find creative interpretations to sabotage the program.
Since the last time I quoted the DA's user forum they took the post down, I've cut and pasted the text and uploaded it to a Google document here.