Bexar County DA Susan Reed thinks that a new Texas law allowing a needle exchange program to operate in Bexar County doesn't mean participants can't still be arrested. According to the San Antonio Express News ("DA warns of needle exchange problem," Aug. 3), Reed announced:
"I'm telling them, and I'm telling the police chief, I don't think they have any kind of criminal immunity," Reed said. "That's the bottom line. It has nothing to do with whether they do it or don't do it — other than if you do it you might find yourself in jail."Thank you, Miss Flexibility, for that stirring legal analysis. Of course, that's the opposite of what the Legislature intended. Rep. Ruth McLendon, whose amendment allowed the program, says the DA is wrong. Plus:
So to get to her position that needle exchange participants should be arrested, Reed must ignore the actual, stated legislative intent of the just-passed law. This DA's arrogance continues to astonish me. Personally I think Bexar officials should just blow Reed off and work around her.McClendon pointed to an exchange on the Senate floor between Sen. Jane Nelson, R-Lewisville, who introduced the Medicaid bill, and Sen. Bob Deuell, R-Greenville, who told her: "I did want to establish some legislative intent on the amendment regarding needle exchange. Is it your intent that, notwithstanding any other statutes, Bexar County will be allowed to legally operate a needle exchange program under the provisions of the bill?"
"That is correct," Nelson replied.
I'm told the local police chief and county sheriff both support a needle exchange program. Those agencies should create written policies that formally disallow officers from arresting participants in a needle exchange program solely for violating paraphernalia laws by carrying needles. The program could issue a participants' card that's recognized by police policy, so that someone with one of those cards wouldn't be arrested for carrying needles to or from an exchange site.
If nobody gets arrested, Ms. Reed can't prosecute them. Simple.
Meanwhile, whatever the outcome in Bexar, the law should be clarified in 2009 to entirely eliminate her feeble argument.
UPDATE: Seen an interesting discussion on the subject among Texas prosecutors on their user forum.
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7 comments:
This would be an interesting case to determine whether a district attorney has absolutely no discretion to take a prosecutorial action -- and could thus be exposed to liability under 42 USC 1983 for prosecuting a defendant engaged in legal activity.
Wow, Michael, there's an angle I hadn't thought of! Maybe Reed needs to rethink her recalcitrance - that could be a real tar baby for her, with all the lawmakers being so clear about what they intended.
I still hope it doesn't come to that. It's not like Reed has her own private police force. If SAPD never arrests them, she never gets to prosecute them. (Or am I being naive and missing something?)
Can the DA take the charges to the Grand Jury on her own?
Seems a little over the top but.....
How's this for an idea? Arrest the DA for possession of the needles after the "exchangers" get busted. Possession of paraphenalia, since the standard "in the line of duty" (such as a cop carrying a firearm into a bar to arrest someone for fighting) wouldn't hold, since the intent of the law was to permit such exchange programs. Probably wouldn't work or maybe Reed would just go work for one of those companies who bribe servicemen and then get shielded.
I was sure somebody would have attacked my earlier specious suggestion of prosecuting officials "possessing" paraphenalia. Then I saw DA John Bradley's comment about possession of the "trace amounts of illegal drugs...." If a cop, criminologist, DA etc is in possession of illicit drugs (porn, stolen property etc) as part of their official duties, they are not prosecuted. On the contrary, the same people can be prosecuted for possession for their own use or sale (so I am lead to understand). My understanding is this comes under prosecutorial discretion. Of course, this is Texas...
Scott, the DA does have her own "private police force" The DA investigators are peace officers.
Scott, Ask her why she used to make her probationers go on NORPLANT birth control when she was the Judge in the 144 th district court in San Antonio (Bexar County). But we can't try to stop the transfer of AIDS? Go figure! Next she'll outlaw designated drivers as aiding and abetting drunk drivers.
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