Reasonably Suspicious: The conservative case for reducing drug penalties, DWI arrests plummet, and other stories

Does God have a Texas accent? Mandy Marzullo and I address this and other pressing questions on the latest edition (May 2018) of Just Liberty's Reasonably Suspicious podcast. Give it a listen!

Here's what we discussed this month:

Top Stories

• Prosecutors flailing with Twin Peaks biker massacre cases.

Interview

• Scott talks to David Safavian of the American Conservative Union Foundation on why Texas should reduce penalties for low-level drug possession from a felony to a misdemeanor.

Suspicious Mysteries

• Why have the number of arrests for DWI and drunkenness plunged in Texas since 2010?

Death and Texas

• On the use of forensic hypnosis in death penalty cases.

Stop the Train

• Promoting Just Liberty's new decarceration campaign and jingle.

The Last Hurrah

• Russian troll farms most successful projects were Blue Lives Matter posts.
• With San Antonio launching a pilot program, what will it take to approve needle exchange programs in Texas?
• Texas' "subjugation rate" (the number of people in prison, jail, on probation and on parole) declined from 1 in 22 a decade ago to 1 in 41 today. What is the cause?

Find a transcript of the show below the jump.

Will Texas join conservative states adopting syringe exchange in 2015?

In the wake of the Texas House of Representatives approving syringe exchange legislation last week,* Grits was interested see this article in the New York Times about changing laws and attitudes on the topic in conservative states. Though the Texas vote wasn't mentioned, the Times' Carl Hulse reported:

Now, with a severe outbreak of H.I.V. and hepatitis due to a surge in heroin use in states including Indiana, Kentucky and West Virginia, the question of whether to let federal money support needle exchanges is back. Still, in contrast to a new willingness by state politicians to accept needle exchanges, Congress appears unlikely to overturn the moratorium even with drug problems hitting hard in states represented by those responsible for the spending bills that impose the ban. ...

Though evidence has mounted that needle exchanges are effective — the Centers for Disease Control and Prevention and the World Health Organization, among others, have recommended them — they have remained anathema to many politicians, particularly Republicans who have long framed opposition as an essential element of their antidrug image.

“As Republicans, we don’t want to look like we are facilitating drug use,” said Representative Tom Cole, the Oklahoma Republican who is chairman of the appropriations subcommittee that distributes health funding. “We want to get you help, but we want to do other things.”

While expressing reservations, Mr. Cole acknowledged that public funding of needle exchanges could be more cost effective than the potential public expense of treating increasing numbers of AIDS and hepatitis cases. He said he expected the issue to come up as Congress put its health spending bill together and, like [Rep. Harold] Rogers, said he was open to exploring the issue.

“If the evidence is such that it really makes a difference, it is something to look at,” Mr. Cole said.

To some Democrats, there is no question that the ban should be eliminated and that Republicans are stuck in the past when it comes to both drug and health policy.

“We should lift the ban,” said Representative Rosa DeLauro of Connecticut, a senior Democrat on the appropriations subcommittee. “Health, and not ideology, should be the determining factor.”

In Indiana, an epidemic of H.I.V. related to intravenous drug use in one southeastern county led Gov. Mike Pence, a former Republican House member and longtime supporter of the ban, to back away from his opposition. In March, he signed an executive order allowing a temporary needle exchange in Scott County. This month, he signed legislation allowing counties around the state to begin exchanges if officials can demonstrate that they would be an appropriate public health response. The Kentucky Legislature, on a bipartisan basis, also passed legislation allowing needle exchange programs.

Apparently Mr. Hulse didn't know about the Texas House's remarkable vote to approve syringe exchange pilots in seven counties on essentially conservative grounds - it would have fit perfectly into his story's narrative. But perhaps news of such programs spreading in conservative states will contribute to new momentum on the senate side, where the Texas bill still awaits referral to committee.

Grits wondered before session whether changing political dynamics regarding the drug war and disease prevention might give needle exchange legislation new legs. Apparently that's the case, and not just in Texas.

*Your correspondent supported this legislation on behalf of the Texas Criminal Justice Coalition.

Texas House approves non-government funded, operated needle exchange pilots

Remarkably, HB 65 by McClendon this evening passed on second reading by a 92-37 vote with no floor debate, after needle exchange had been one of the more contentious topics debated on the House floor in 2013. A majority of Republicans supported the bill (44-37) and all Democrats. 

Congratulations to Chairwoman McClendon and her staff. This was an impressive victory after the filed version of the bill faced a rocky start in its committee hearing. From there to a 9-0 committee vote to a 5-2 margin on the House floor has been quite a fascinating trek. (Your correspondent has been pleased to help them in the process on behalf of the Texas Criminal Justice Coalition.)

Now, on to the Senate, where we find out if the re-vamped bill - no taxpayer money, operated by nonprofits instead of government - receives as cheerful a welcome on the eastern side of the capitol.

See related coverage from the SA Express News, the Dallas News, and perhaps the best coverage so far from the Dallas Voice.

RELATED: Why conservatives should support TX bill authorizing non-government needle exchange pilots.

UPDATE (5/13): The bill passed on third reading Wednesday morning and now heads to the eastern side of the capitol for consideration by the Texas Senate.

Texas House moving harm reduction measures

There were a couple of positive developments on the harm reduction front in the Texas House this week involving bills your correspondent supported in committee:

Good Samaritan bill moves to Senate
On Tuesday, the lower chamber approved HB 225 creating a defense to prosecution when someone calls 911 in response to an overdose, stays at the scene, and cooperates with police - so called "Good Samaritan" legislation. It passed by a 140-4 margin. This is an important sleeper issue, as "overdosing on medications and illicit drugs has been a bigger killer in the U.S. than car crashes or gun deaths at more than 120 per day," according to coverage of the bill from Texas Public Radio. The legislation also authorizes first responders and folks with prescriptions to use naloxone, an opiod antagonist that can save lives during emergency situations but which itself is non-addictive and causes no known side effects. The bill is now in the Senate where its companion was referred to the Criminal Justice Committee.

Unanimous committee support for needle exchange bill
After some initial confusion and a motion to reconsider, CSHB 65 authorizing privately funded and operated needle exchange pilots in several counties passed out of the County Affairs Committee yesterday on a 9-0 vote. See supportive coverage of the bill out of San Antonio and an earlier Grits analysis. HB 65 had seemingly stalled before conservatives threw their support behind language which eliminated all public funding and empowered counties and hospital districts only to authorize other organizations to operate needle exchanges - county government won't operate the programs. Volunteers with authorized needle exchanges will be exempt from prosecution under the paraphernalia laws and the bill includes some reporting requirements for participating organizations on the back end. Indiana of all places, recently suspended that state's ban on needle exchanges in response to a public health crisis.

Police, Lege can do more to prevent overdose deaths

I wonder how many Texas police departments have patrol officers carry naloxone to save lives after drug overdoses? The New York Times coverage this week prominently re-raised the issue and US Attorney General Eric Holder this summer said it was a good idea (possibly the kiss of death in these parts). But Grits hasn't heard the question confronted for years here in Texas, so I'm guessing not many. Increasingly naloxone is used to respond to overdoses from prescription opioids as well as illicit ones, which along with its high rate of effectiveness and general overall safety may explain growing public support. "That naloxone has rapidly gained acceptance, expanding from needle-exchange programs to police precinct station houses, underscores how widespread the twin scourges of heroin use and painkiller abuse have become in recent years," the Times reported.

Here in Texas, Rep. Ryan Guillen has filed "Good Samaritan" legislation creating a defense from prosecution for people who call 911 when a drug user overdoses. Rep. Eric Johnson filed similar legislation two years ago and may still do so again. But that's just one component of overdose prevention. Equipping and training first responders with naloxone would help a lot, too, especially in departments facing a serious heroin problem. (States with legal needle exchanges may train addicts to use naloxone and send them home with a dose in case of emergency, but obviously Texas is several steps away from that.)

According to the CDC, "In 2012, there were 41,502 deaths due to drug poisoning (often referred to as drug-overdose deaths) in the United States, of which 16,007 involved opioid analgesics and 5,925 involved heroin."  Texas' death rate from overdoses is slightly lower than the national average, at 9.8 deaths per 100,000 people, while nationally. the death rate from drug poisoning is around 13.1 per 100,000, up from 6.1 in 1999, says CDC.

Though lower than the national average, the number of overdose deaths grew in Texas by 150 percent from 1999 to 2007, according to the most recent available analysis from the Drug Policy Alliance, which added that, "Legal prescription opioid drugs such as oxycodone and hydrocodone were identified in 50% of all accidental overdose deaths between 2005 and 2009 in Houston, claiming more lives than all illegal drugs combined." Indeed, "in 2007 more people died from accidental overdose in Houston than from car crashes." Further, "Statewide, accidental poisoning (most commonly due to drug overdose) is the third-leading cause of injury-related death in Texas, behind car crashes and suicide."

For more on the scope of this problem, check out this tidbit promoted in October by Mother Frances hospital in Tyler titled, "Prescription painkillers fueling overdoses in ERs, study finds." The press release concluded:

Study author Michael Yokell, medical student at Stanford University School of Medicine, and his colleagues reached their conclusion by analyzing tens of thousands of reports of narcotic overdoses from a sample of nationwide emergency room visits from 2010.

Almost 68 percent of the overdoses involved prescription drugs. That number may be higher since the drugs were unspecified in 13 percent of cases, and multiple narcotics were involved in 3 percent of cases in the study. Heroin alone was responsible for 16 percent of the overdoses.

Narcotic overdoses were most likely to happen in urban areas (84 percent) and the South (40 percent of the total). Most were in women; 1.4 percent of the total patients in the study died.

"Opioid [narcotic] overdose exacts a significant financial and health care utilization burden on the U.S. health care system. Most patients in our sample overdosed on prescription opioids, suggesting that further efforts to stem the prescription opioid overdose epidemic are urgently needed," the researchers wrote.

The study is published online Oct. 27 in the journal JAMA Internal Medicine.

Training first responders to use naloxone and allowing cities and counties to sanction legal needle exchanges both make good public policy sense for the same reason drug and veterans courts work: At root, addicts must not just abstain from drugs but change their lifestyle in order to avoid recidivism and possibly death. Put an overdose treatment in someone's hand and perhaps its mere presence reminds of the dangers and serves as a deterrent. Similarly, the interaction with needle exchange workers that puts the naloxone in an addict's hands represents an opportunity to provide education, shepherd them toward treatment and medical assistance, and in more ways than one potentially save their lives.

It's hard to stop people's bad choices and they can't change unless they want to. But there are ways at the margins to keep overdoses from turning tragic, saving the addict's life until they can turn it around: Where they don't already, patrol officers and EMTs should keep naloxone in their vehicles and be trained how to use it. And the Legislature could authorize local needle exchange pilots in cities that want them and allow them to distribute naloxone to heroin addicts along with needles, kit cleaning equipment, medical and treatment referrals, etc.. Nobody wants addicts to use drugs, but the public has an equal or greater interest in drug users not spreading Hep C, HIV (which the taxpayers will likely pay for through either Medicaid or the prison system), or overdosing with no insurance and being taken to the local ER.

Though it's treated as a crime, and regrettably the only treatment options available for many people are through the courts, at root substance abuse is more of a health (or perhaps mental-health) issue than a traditional crime with victims, etc.. When confronted with an overdosed addict, whether the cause is heroin or Oxy, the sensible approach is to save their life first and worry about punishment, treatment, or whatever one thinks is the right legal comeuppance later.

Might Texas revisit needle exchange pilots with Susan Reed gone, disease prevention in the news?

Grits wonders if - owing to recent events surrounding the Ebola scare and the outlandish costs of Hepatitis C treatment under new drug protocols - 2015 might be a year in which the Texas Legislature favorably revisits Rep. Ruth Jones-McLendon's legislation allowing local health authorities to create pilot needle-exchange programs? This session, her bill allowing such pilots in Bexar, Dallas, El Paso, Harris, Nueces, Travis, and Webb counties is HB 65.

Legislation authorizing a pilot needle-exchange program passed once before back in 2007. Rep. McLendon carried the bill in the House and Dr. Bob Deuell (who lost his primary in the spring and will not return next year) championed it in the Senate. The designated pilot location was McLendon's home county in Bexar; Governor Perry approved it and local officials looked forward to implementing it. But Bexar County District Attorney Susan Reed, who herself was ousted earlier this month in the general election, threatened to prosecute volunteers who participated in the pilot, effectively rescinding the Legislature's permission under authority of the executive branch. (See Grits coverage here, here, here, here, here, and here.)

Senator Deuell seemed to lose heart in the fight after 2009, when the bill passed the Senate but died sitting on the House calendar while Democrats chubbed over voter ID. The good doctor threw up his hands on the issue after that - there are plenty of other topics, after all, on which an East Texas Republican can expend his political capital - and the bill hasn't moved much since.

However, the political landscape surrounding the issue arguably has changed since then, for starters thanks to a renewed concern for preventive public-health strategies in light of the Ebola scare. A recent Texas Tribune headline, one of their last in the New York Times before that partnership ends, read, "Ebola scare behind it, Texas is bracing for the next viral crisis."

There are many possible methods of disease transmission and, just in recent decades, IV drug use has been a significant factor in the spread of both HIV and Hepatitis C. As the state considers comprehensive disease-prevention strategies (a Perry-appointed task force will release its Ebola-centered recommendations after the holiday), reviving the idea of pilot needle-exchange programs only makes sense. HIV/AIDS killed many thousands before treatments were found. And Hep C may end up costing the state untold sums thanks to a new drug called "Sovaldi," which cures the disease but costs in the neighborhood of $80,000 per patient. At those rates, it would run around $2 billion (with a "b") to treat every TDCJ prisoner with Hepatitis C if, say, courts ever ruled the state is obligated to provide the treatment as part of its basic standard of care for the disease. (When the state chooses to incarcerate someone, it assumes responsibility for their healthcare, federal courts have consistently found.)

All that to say, increasingly there are pragmatic public health and budgetary reasons, and perhaps even a bit of political momentum thanks to the Ebola scare, for the Lege to take a more expansive view toward the merits of preventive public-health strategies. Susan Reed is gone, or is about to be, and McLendon's permissive, local-control approach would let needle-exchange pilots happen in a way that would insulate legislators from on-the-ground decisions by local officials.

Texas Republicans should support local, pilot needle-exchange programs for the same reason Margaret Thatcher did: The public interest in disease prevention outweighs whatever principled disdain for addicts one might harbor. The election is over. It's time to govern.

Feds remove needle exchange funding ban; when will Texas get its act together?

Earlier this month Congress approved legislation that removed the federal funding ban on needle exchange programs. According to the San Francisco Chronicle (Dec. 18):

The federal ban, sponsored by the now-deceased Sen. Jesse Helms, R-N.C., was enacted by Congress in 1988 and has been renewed annually.

Supporters of the prohibition said needle exchanges encourage the use of dangerous drugs. Robert Martinez, chief of drug policy under President George H.W. Bush, said government funding for clean needles "undercuts the credibility of society's message that drug use is illegal and morally wrong."

In 2000, however, Bush's surgeon general, David Satcher, said scientists had found that needle-exchange programs were effective and did not encourage drug use. A 1997 study said HIV infection rates had dropped by 5.8 percent in 29 cities around the world with the programs, and increased by 5.9 percent in 52 cities without them.

Obama has sent a mixed message on needle programs. He endorsed federal funding as a presidential candidate, but his proposed 2009-10 budget continued the funding ban, even as his drug czar, Gil Kerlikowske, was supporting needle exchanges at his confirmation hearing.

House Democratic leaders waged a low-key campaign to repeal the ban this year. A Republican proposal to continue the funding prohibition was defeated on the House floor in July on a 218-211 vote, mostly along party lines.

Texas still has no legal, functioning needle exchange program, despite legislative approval of a pilot in San Antonio in 2007. Bexar County District Attorney Susan Reed threatened to prosecute volunteers participating in needle exchange programs, despite the clear intent of legislators to allow the SA pilot. Then in 2009, legislation to legalize needle exchange statewide (with a local opt-in) appeared to be sailing toward passage until the end-of-session meltdown over voter ID killed it along with hundreds of other unrelated bills.

State Sen. Bob Deuell, a Republican medical doctor from Northeast Texas, has lately made passing a needle exchange bill one of his top priorities. Perhaps the decision to free up federal money will be the final impetus needed to push his legislation over the hump in 2011.

Cockfighting, piracy, black helicopters and needle exchange

Here are a few more odds and ends from yesterday's Senate proceedings wrapping up the narrative on bills this blog has covered at various times throughout the session:

Cockfighting and highway piracy
Sen. John Whitmire tacked on his SB 1529 regulating asset forfeiture "waivers" to an enhancement bill on cockfighting, the Statesman's Mike Ward reports. The bill was on the major state calendar for days but never received a vote in the House before time ran out. See prior Grits coverage.

'Black helicopters' take out needle exchange
Less fortunate was Sen. Bob Deuell's needle exchange bill SB 188, which like the asset forfeiture bill was left sitting on the calendar in the House thanks to all the chubbing waiting on a vote that would never come. Sen. Troy Fraser spearheaded efforts to kill the amendment, leading Sen. Deuell, an East Texas Republican (and medical doctor) to pronounce, "I think it's time, especially for you Republicans, that if we're to remain a viable party, we need to start looking at medical facts and dealing with reality and not dealing with black helicopters and other myths that are out there by the right wing extremists."

DPS Sunset bill becomes Christmas tree
The DPS Sunset bill was approved by the Senate with a battery of amendments I've yet to examine. I did notice Sen. Florence Shapiro got her data reporting improvement plan, favorably discussed here and here, tacked onto the bill as an amendment. Sen. Tommy Williams added an interesting looking amendment that transfers "certain records and regulatory functions relating to dispensing controlled substances by prescription" from DPS to the Texas State Board of Pharmacy.

Conference committee to decide red-light cameras' fate
House amendments to the Department of Transportation Sunset bill requiring that municipalities phase out use of red-light cameras did not make it into the Senate version, leaving the issue to be decided by a conference committee. Gary Elkins out of Harris County is urging House conferees to stand firm; I couldn't agree more.

'Chubbing' kills innocence bills, and many others, in Texas House

Given that yesterday was a rare weekday when Grits was silent (due to work and familial duties), it was an awfully big news day both in Texas and nationally on the criminal justice front.

I'll post something later about Barack Obama's new US Supreme Court nominee once I know enough about her to have an opinion. SCOTUSBLog is the go-to source on that topic and also on SCOTUS' decision yesterday to overturn Michigan v. Jackson, a case about the right to counsel with significant field implications for how officers interact with suspects.

At the Texas Lege, the news was disappointingly grim. Several key "innocence" bills and other criminal justice reform legislation pending in the House died when the clock tolled midnight last night, though there's a chance some of them can be revived at the last minute as amendments to House bills in the Senate. Basically, partisans were playing a big game of "chicken." No one blinked, so the result was a head-on crash that more or less totaled the 81st legislative session, especially since the House had passed relatively few bills before their final, homestretch run.

That's terribly bad news - an example of badly misplaced priorities by the majority in both parties in the lower chamber. I was frankly disappointed in the whole lot of them for letting this petty matter derail four months of work, leaving issues these bills would have addressed lingering for the next two years. In a state as large as Texas, if the Legislature is only going to meet biennially, I'd like to think legislators understand they have a responsibility to accomplish something when they're in town. (We didn't elect them, after all, to get nothing done.) Instead, everyone is focused on their own re-election or else scoring partisan political points. Voter ID only really interests hard-core partisans on both sides, but of course that's who tends to get elected.

Lots of stuff that really impacts Texans was on the list of now-dead bills in the House, including windstorm insurance and the Department of Insurance Sunset bill. On the issues I follow, the House allowed legislation sitting on its calendar since last week to die on the altar of the voter ID fight which would:

• Require police departments to maintain written policies following minimum best practices on eyewitness identification procedures.
• Encourage recording custodial interrogations of suspects by police.
• Expand access to the courts for habeas writs based on discredited scientific evidence used at trial.
• Restrict police and DA's ability to request "waivers" in asset forfeiture cases when no criminal or civil case has been filed as was done in Tenaha and elsewhere.
  
• Allow big cities to operate needle exchange programs to prevent disease and promote drug treatment.

The Court of Criminal Appeals' Criminal Justice Integrity Unit told the Legislature that passing eyewitness ID reform should be their highest priority for preventing false convictions, but the House decided that could be put off for two years and voter ID was more important. Thanks, guys.

There's one more day to see if the Senate can amend some of this language onto other bills, but even if they do, it won't mitigate how irresponsible it was to shut down the whole legislative session over voter ID. These folks have some seriously screwed-up priorities.

Voter ID fight puts criminal justice reform bills at risk

In some ways, the comeuppance seems fitting - the Texas Senate early in the session used a parliamentary loophole to get around the so-called 2/3 rule to pass Voter ID legislation, and now House Democrats have created a de facto 2/3 rule to block it. An example of smart political chess, if I ever saw one.

In the meantime, though, several important innocence-related bills and other critical reform legislation is at risk of being sacrificed on the Voter ID altar, as House Democrats "chubb" away on every penny ante bill as a delaying tactic to pressure their colleagues to back off Voter ID. The following bills would have most likely already been voted on by now if not for the delay tactics:

• Eyewitness Identification: SB 117 by Ellis would require police departments to create written policies governing eyewitness identification procedures to prevent false identifications of the type that caused 80% of convictions among Texas' DNA exonerees. The Court of Criminal Appeals' Criminal Justice Integrity Unit said this should be the Legislature's highest priority for preventing false convictions.

• Recording Interrogations: SB 116 by Ellis would encourage (but not require, unfortunately) departments to record custodial interrogations.

• Habeas Writs and Junk Science: A compromise reached with prosecutors on SB 1976 by Whitmire would let appellants overcome the "subseqent writ" hurdle when they bring forward new claims involving new or discredited science that undermines their conviction.

• Post-conviction DNA Testing: SB 1864 by Ellis limiting judges' discretion to deny post-conviction DNA testing and requiring samples be run against the CODIS database to identify possible suspects.

All of these bills come after Voter ID on the calendar, so if House Democrats successfully kill that bill through delay, they'll have killed all this good innocence legislation, too. That must not happen.

The House thankfully already passed the exoneree compensation bill and legislation to require corroboration of jailhouse snitches, but these remaining bills represent the heart of innocence-related policy reforms proposed during the 81st session. If they were to die without a vote at this point, it would be a major blow and a tremendous missed opportunity.

Two other good bills I've been tracking on Grits are in the same boat - sitting on the calendar for days waiting for the chubbing to end:

• Asset Forfeiture Reform: SB 1529 by Whitmire would improve state oversight of seized assets and prevent solicitation of "waivers" for seized assets until a civil suit was filed in district court, aiming to address situations like in Tenaha where the practice allegedly amounted to officially backed highway robbery. This bill actually comes before Voter ID on the Major State calendar, but not by much and could still fall victim to the ticking clock.
  

• Local-option Needle Exchange: SB 188 by Deuell would authorize creation of local-option needle exchange programs to prevent the spread of disease and promote drug treatment among addicts in Texas' large cities and counties. Thirty six states have formally authorized needle exhange operations, and Texas is the only state in the union where they cannot legally operate in some form or fashion.

I'd be quite disappointed if all this positive legislation falls victim to what amounts to a partisan feud.

Voter ID was always going to be dicier in the House than the Senate because of the more or less even partisan split. With the Speaker not voting and Rep. Edmund Kuempel hospitalized recovering from a heart attack, the House is essentially divided 74-74 between Democrats and Republicans.

While in truth, IMO there's probably room for compromise on both sides on Voter ID, in the present environment I don't see that happening. More likely, one side either must give in or else one side's tactical maneuvering will prevail. Personally, I don't have a dog in that fight; I'm a lot more worried about the collateral damage it's causing.

Larger cities may get needle exchange option

Excellent news! SB 188 - authorizing local-control needle exchange programs in Texas' largest cities and counties - passed out of the House Public Health Committee this afternoon on a 7-3 vote! Outstanding!

Voting in favor of the legislation, according to the needle-exchange focused blog, Sifting the Haystack, were: Garnet Coleman, John E. Davis, Veronica Gonzales, Susan King (a professional nurse), Elliott Naishtat, Vicki Truitt, and Doctor John Zerwas. Three of those - Davis, Truitt and Zerwas - are pickups from the House floor vote in 2007 that authorized a pilot needle exchange program in San Antonio.

Now SB 188 heads to the Calendars Committee, where I'm pleased to see that the Chairman, Brian McCall, was actually one of the authors of a companion needle exchange bill - HB 272 by Ortiz. That makes me optimistic SB 188 will get a vote on the House floor. Once there, SB 188 stands an excellent chance of passage. The Bexar County pilot last session passed on a 71-60 vote, so many members have already gone on the record in favor of the idea.

RELATED: Needle exchange, treatment and prevention.

Needle exchange, treatment and redemption

Local-control needle exchange legislation, SB 188, sounds like it's in pretty good shape from what I heard of the Texas House Public Health Committee hearing this morning. Rep. Ruth McLendon laid out the bill with an emotional story of personally going into her own district in East San Antonio to distribute needles with a volunteer group (presumably illegally!) and meeting a young man whose family she knew who later went voluntarily into drug treatment.

Chairwoman Lois Kolkhorst had earlier sent the bill to a subcommittee chaired by Rep. Susan King; there's no video in the broadcast archives of their April 16 subcommittee hearing, but it sounds like it was quite a meeting. They produced a committee substitute to include the following changes:

• Includes a preamble written to clarify the purpose of bill (prevent disease and facilitate treatment)
  
• Bracketed the legislation to jurisdictions of 300,000 and above
• Made the bill permissive - no one will be required to have a program
  
• Required programs to have an outreach component promoting drug treatment
  

Kolkhorst said an editorial by Dr. Bill Martin (pdf) in the Houston Chronicle arguing that needle exchange is "the Christian thing to do" had moved her to give the bill a hearing despite initial concerns about the bill. Rep. Susan King, who chaired the subcommittee, was an especially knowledgeable and enthusiastic proponent for the legislation; I hope she'll repeat the performance when it comes up on the House floor because she did a great job arguing the merits of the program.

Reacting to urging from the chair and committee member Dr. John Zerwas, King said the subcommittee added a strong counseling component to the bill, requiring syringe exchange programs to be "one stop shopping" information centers for helping drug addicts access treatment and medical services.

The witnesses began with ministers from St. Mark's in San Antonio and another minister from Austin who gave a faith-based argument for the program. A minister from St. Mark's said Christ ate and sat with sinners, not to condone them but to redeem them. The Austin minister said healing was a central activity of Jesus' own ministry - 72% of Jesus' miraculous activity relates to healing those with physical or mental illness, he said.

I got pulled away on a phone call and soon thereafter the committee recessed to go to the House floor, leaving the bill pending. They'll resume testimony during the House's lunch break around noon. From the sounds of things, though, the subcommittee has come up with a bipartisan compromise on which they can mostly agree. So far, so good.

UPDATE: Here's a link to the archived video of the first part of the hearing. The discussion of SB 188 begins at the 1:00:45 mark. MORE: Here's a link to video of part two of the hearing on SB 188.

Needle exchange bill reaches milestone Tuesday

Legislation to authorize local-control needle exchange programs will reach a milestone Tuesday when SB 188 finally receives a hearing in the House Public Health committee. The previous chair, Dianne Delisi, had singlehandedly blocked the bill in 2007 after a bipartisan supermajority of senators approved it. But this year's Chair Lois Kolkhorst greenlighted a hearing and promised sponsors the legislation will get a committee vote.

A majority of Public Health Committee members already voted for needle exchange once. The House had a vote in 2007 on an amendment by Rep. McLendon to allow a needle exchange pilot in Bexar County that tells us a lot about the bill's likely reception on committee. Here's how the committee members voted on that 2007 amendment:

Ayes: Naishtat; Coleman; Gonzales; Hopson; McReynolds, King, S;

Nays: Laubenberg, Truitt

Absent: Kolkhorst; Davis, J;

Present not voting: Zerwas

Though Rep. Kolkhorst wasn't there for the 2007 vote, the fact that the chair decided to give the bill a hearing shows she's at least open to the idea, and if she allows the committee to vote on the bill, by this count the votes are there to pass it.

Two other notable, key "aye" votes for needle exchange from 2007 pop out from the list: Calendars Committee Chairman Brian McCall and House Speaker Joe Strauss. That makes me hopeful SB 188 will make it to the House floor for a vote if it clears the Public Health Committee.

Needle exchange isn't a cure all, but it helps at the margins to prevent disease, reduce public health costs and make it more likely program participants access drug treatment. According to a fact sheet from the Texas Department of State Health Services, found via the blog Sifting the Haystack:

• More than 14,000 Texans got HIV when they were injecting drug users.

• About 240,000 cases of hepatitis C in Texas are linked to sharing syringes.

• Preventing 100 new cases of HIV would save $38,000,000 in medical costs.

• Syringe exchange could prevent 100 new cases of HIV per year in Texas.

• A study comparing 81 cities found the HIV infection rate decreased 5.8% per year in cities with SEPs and increased by 5.9% in cities without SEPs.

SB 188 is scheduled for a hearing in the House Public Health Committee on Tuesday, May 5, 2009, at 8:00 AM in E2.012 in the Texas Capitol. Go here to watch it live when once it begins.

See prior, related Grits posts:

• Needle exchange bill sails through Senate, heads to House
  
• Will 2009 be the year Texas approves needle exchange?
  
• Good chances for Texas' needle exchange bill next year, but assume nothing
• Needle exchange gets unexpected 2009 boost
• Bully Bexar DA says she didn't pick needle exchange fight (but she did)
  
• Needle exchange bill pits small government Republicans vs. authoritarian wing
• Texas Senate prescribes voluntary needle exchange
• Wow! Texas House approves pilot needle exchange
• Lone Star Times: Delisi needle exchange stance shows why GOP may lose majority
• Delisi: Research, Smesearch, I don't wanna
• Dr. Deuell prescribes needle exchange legislation

Needle exchange bill sails through Senate, headed to House

Having written earlier that it was possible to count 23 votes in the Texas Senate for a local-control bill authorizing needle exchange, I'm pleased but unsurprised to see Sen. Robert Deuell's SB 188 pass the Senate on a 23-7 vote. Writes Noelle at Sifting the Haystack:

While laying out the bill Senator Deuell said that if this legislation becomes law it will save the state money without costing the state any money, and that countless studies have shown syringe exchange programs do not increase drug use.

Senator Wentworth pointed out that Bexar County District Attorney Susan Reed, who blocked full implementation of the pilot syringe exchange program that passed last session, has advised his office that if this bill passes she will not prosecute people participating in the programs.

To watch the Senate consideration and vote on CSSB 188 visit the Senate RealMedia Video Archives page, scroll down and click on the March 18 Senate Session, and skip ahead to 2:07:20 into the video.

Sifting the Haystack also points to an op ed in the Abilene Reporter News supporting the legislation. The bill does not require local governments to operate a needle exchange program, and likely most won't, but for the big urban areas it makes sense, both to save lives and health care costs.

The House voted for a pilot program in San Antonio last session by a wide margin, so the bill has a decent chance of passing both chambers if the new committee chair in House Public Health will consent to give it a vote.

The biggest obstacle may be Governor Perry, who reportedly opposes the legislation despite significant small-government conservative backing for the measure - 11 of the 18 Republicans voting on the measure in the Senate supported the bill.

Will 2009 be the year Texas approves needle exchange? Senate committee to hear syringe access bill today

Maybe this will be the year when Texas legislators finally get the point.

This morning, the Senate Health and Human Services Committee will hear SB 188 by Senators Robert Deuell and Leticia Van de Putte authorizing local governments in Texas to operate needle exchange programs if they choose to do so to prevent the spread of disease, particularly HIV and Hepatitis.

We can be pretty sure the legislation has the votes to pass the Senate: Eight of the nine Health and Human Services committee members voted for the bill on the Senate floor in 2007, when twelve Republicans joined 11 Democrats on a final vote of 23-8 to approve the same legislation. What's more, Sen. Kim Brimer, an opponent of the bill, was replaced by Democrat Wendy Davis, whittling the number of known Senate opponents down to seven: Not enough under the 2/3 rule to block the bill.

Though it's still early in the process, it looks like 2009 may finally be the year for needle exchange to pass in Texas - the only state in the union that doesn't allow their operation. Its chief opponent in the House, Rep. Diane Delisi, retired last year and the Public Health Committee she chaired is now run by Rep. Lois Kolkhorst, who was absent for a vote on who voted for a pilot needle exchange program in 2007. Delisi simply refused to allow a vote on the bill in her committee, though by all accounts a majority supported it, just as most members voted for a floor amendment to other legislation authorizing an ill-fated pilot program in San Antonio.

As somebody who's supported this legislation since Rep. Glen Maxey first carried a version of it in the early '90s, I'm enthused to see the idea finally has real momentum. The costs of HIV are too high to do nothing, and needle exchange programs do a good job of reducing both disease and overall cost. Cross your fingers.

UPDATE (1:40 p.m.): Good news! This legislation was heard this afternoon with no opposition soon after the Senate adjourned, then passed out of committee on a prompt, 5-1 vote.

Sen. Deuell cited a study by the Department of State Health Services estimating that needle exchange would prevent 100 new HIV infections per year at an average savings to the state in indigent health care costs of $385,000 per case. Sen. Robert Nichols, whose Republican district neighbors Sen. Deuell's in East Texas, noted that despite a "neutral" fiscal note from the Legislative Budget Board, SB 188 would likely save the state "millions" because of averted indigent health care costs. I was glad to hear that argument made.

A good and positive start, but only the first step of a hard slog. Congrats to the bill sponsors and supporters on a successful hearing.

Related: From Sifting the Haystack, see Harris County officials discuss syringe access legislation. MORE: See STH's coverage of the 3/3 hearing. See also AP's coverage.

See also prior, related Grits posts:

• Good chances for Texas' needle exchange bill next year, but assume nothing
• Needle exchange gets unexpected 2009 boost
• Bully Bexar DA says she didn't pick needle exchange fight (but she did)
  
• Needle exchange bill pits small government Republicans vs. authoritarian wing
• Texas Senate prescribes voluntary needle exchange
• Wow! Texas House approves pilot needle exchange
• Lone Star Times: Delisi needle exchange stance shows why GOP may lose majority
• Delisi: Research, Smesearch, I don't wanna
• Dr. Deuell prescribes needle exchange legislation

Good chances for Texas needle exchange bill next year, but assume nothing

While I agree Texas has the best chance in my lifetime to pass needle exchange legislation next spring, perhaps the San Antonio Express News editorial board was counting unhatched chickens when they opined that, with long-time opponent Rep. Diane Delisi retired, the bill will now finally, easily pass.

Former Rep. Dianne Delisi, a Republican from Temple, opposed the bill in the House ... But rather than simply voting against it, she abused her position as chairwoman of the Public Health Committee by refusing to allow it to come to a vote.

After 18 years in the House, Delisi resigned her seat in July. The same bipartisan group of lawmakers who pushed the legislation two years ago — Sen. Robert Deuell, R-Greenville, Sen. Leticia Van de Putte, D-San Antonio, and Rep. Ruth Jones McClendon, D-San Antonio — plans to reintroduce similar measures in the upcoming session.

There can be little doubt that given the opportunity for floor votes in the Senate and House, Texas will join the 49 other states in making needle exchange programs legal.

I'd like to think that's true, having been a more or less active proponent of the idea since Glen Maxey used to carry the legislation back in the '90s. Certainly needle exchange legislation enters the 81st session with a ton of good vibes and positive momentum. After all, 22 senators have already gone on record supporting it. And a majority of House members voted for a pilot program in Bexar County with no impact on anyone's re-election.

But Texas' legislative process is designed to kill bills, not to pass them, and there's many a slip twixt the cup and the lip. Who knows, for example, who will replace Delisi as Chair of Public Health, which is of course a function of who wins the now-wide open Speakers race?

For the record, I dispute the charge that Delisi "abused her position as chairwoman of the Public Health Committee by refusing to allow [the bill] to come to a vote." While I disagreed with her decision because I knew we had enough votes on Public Health to pass the bill, in truth it's the committee chair's job to make those decisions. That was her prerogative under the rules and not an "abuse" of authority just because I or the SA Express News editorial writers don't like it.

I'm optimistic needle exchange legislation can finally pass in 2009, but that doesn't make it a slam dunk. In fact, it means it's time for supporters to bear down extra hard to finally push this legislation over the hump.

See the prefiled legislation: SB 188 by Deuell and Van de Putte.

Prescription drugs kill more people than illegal ones; new harm reduction strategies needed

Lately on this blog, discussions of "harm reduction" have centered around the Attorney General's nonsensical legal opinion and Bexar District Attorney Susan Reed's efforts to bully out of existence a legislatively approved needle exchange program in San Antonio. But to judge by newly available data, drugs targeted via needle exchange programs cause less "harm" to the general public than the ones distributed by pharmacists.

The biggest public safety threats related to illegal drugs in the United States arise from drug enforcement strategies that force the product to be delivered through a black market, resulting in violent conflicts among distributors, dangerously impure products, coercion and bribery of police, and a variety of other anti-social outcomes. Purely from a safety perspective, however, new data reveals that prescription drugs cause more deaths related to the drugs' actual effects, reports the New York Times ("Legal drugs kill far more than illegal, Florida says" June 15):

An analysis of autopsies in 2007 released this week by the Florida Medical Examiners Commission found that the rate of deaths caused by prescription drugs was three times the rate of deaths caused by all illicit drugs combined.

Law enforcement officials said that the shift toward prescription-drug abuse, which began here about eight years ago, showed no sign of letting up and that the state must do more to control it.

“You have health care providers involved, you have doctor shoppers, and then there are crimes like robbing drug shipments,” said Jeff Beasley, a drug intelligence inspector for the Florida Department of Law Enforcement, which co-sponsored the study. “There is a multitude of ways to get these drugs, and that’s what makes things complicated.”

The report’s findings track with similar studies by the federal Drug Enforcement Administration, which has found that roughly seven million Americans are abusing prescription drugs. If accurate, that would be an increase of 80 percent in six years and more than the total abusing cocaine, heroin, hallucinogens, Ecstasy and inhalants.

The Florida report analyzed 168,900 deaths statewide. Cocaine, heroin and all methamphetamines caused 989 deaths, it found, while legal opioids — strong painkillers in brand-name drugs like Vicodin and OxyContin — caused 2,328.

Drugs with benzodiazepine, mainly depressants like Valium and Xanax, led to 743 deaths. Alcohol was the most commonly occurring drug, appearing in the bodies of 4,179 of the dead and judged the cause of death of 466 — fewer than cocaine (843) but more than methamphetamine (25) and marijuana (0).

The study also found that while the number of people who died with heroin in their bodies increased 14 percent in 2007, to 110, deaths related to the opioid oxycodone increased 36 percent, to 1,253.

Florida scrutinizes drug-related deaths more closely than do other states, and so there is little basis for comparison with them.

The implications of this shift are enormous: More than one in five people in Texas prisons are there for crimes related to illegal drug sales or possession, but those strategies don't affect the drugs killing the most people. The same tactics could never be applied en masse to prescription drug abuse - the economies of scale would quickly overwhelm police and prisons. It would also tick off powerful political constituencies like doctors and drug companies who hire armies of lobbyists to promote their interests, as opposed to their Mexican drug cartel counterparts who just hire armies.

The substitution effect here is palpable: People abuse prescription drugs largely because of the stigma and legal difficulties arising from gaining access to illegal ones, even though they're not as safe. So to that extent, the shift toward prescription drug abuse counts as a drug war "success," but only if you redefine the term "success" to mean causing more deaths instead of preventing them. (The Economist recently declared it a success to shift people from using meth to cocaine, but the Florida study says coke is much more dangerous to users than crank; by that logic, to judge by these data, it'd be a public safety success to get people to shift from Vicodin or Xanax to marijuana, which didn't kill any Floridians last year.)

"Harm reduction" historically focused on illegal drugs, but what if that's not main source of drug-related harm? What's needed now, apparently, are more addiction treatment resources and harm reduction strategies aimed at legal prescription drugs.

Texas AG: Lege intended prosecution of participants in needle exchange pilot it authorized

Egged on by Bexar County DA Susan Reed, Texas Attorney General Greg Abbott sided with opponents of a legislatively approved needle exchange program in San Antonio, likely pushing the issue to the courts - in the form of the prosecution of Christian activist Bill Day, who was arrested for distributing clean needles to addicts - and back to the Legislature in 2009.

See General Abbott's opinion.

I'm not a lawyer, but I find the stance ridiculous. The Legislature authorized a needle exchange pilot in Bexar County, which by definition involves allowing needles to be exchanged with addicts. But according to Abbott, because:

the Legislature has expressly demonstrated its ability and willingness to exclude otherwise criminal acts from prosecution under the Texas Controlled Substances Act--but did not do so here--this office can neither assume nor legislate such an intent.

So in other words, Abbott believes the Legislature intended to allow a needle exchange program in San Antonio but simultaneously intended for participants - both addicts and government employees - to be prosecuted for engaging in it. That's angeringly stupid, but there's little to be done about it until the Legislature gets back to town. Personally, I think Wentworth should have eschewed the opinion and just let the county launch the program. Often in such matters, it's better to ask forgiveness than permission.

Needle exchange legislation in 2007 enjoyed bipartisan support, and its main opponent in the House of Representatives, Dianne Delisi, won't be back next year, so I suspect the pilot won't have trouble passing again. In fact, I wouldn't be surprised if other counties (like Travis) wanted in on the deal. For now, though, Abbott and Reed have succeeded in delaying the project, though for the life of me I don't understand their motives.

Bully says she didn't pick Bexar needle exchange fight

Those tracking the saga of Bexar County DA Susan Reed's efforts to stop a legislatively approved needle exchange pilot should be sure to read Karen Brooks' story this morning in the Dallas News. I was shocked to see the brazenly false declaration, "We did not go out looking for this," First Assistant District Attorney Crag Herberg said. "This was not on top of anybody's agenda in this office."

What?! That's patently untrue. From the first, Susan Reed went out of her way to oppose implementation of the new law, declaring she would prosecute anyone engaging in a county-run needle exchange pilot. Then, when police gave a Class C misdemeanor citation to 73-year old chaplain Bill Day (profiled in Brooks' article), Reed's office insisted the charge be bumped up to a Class A misdemeanor, which carries a potential sentence up to one year in the county jail.

She didn't have to do any of that. In fact, its not her role to second guess the legislature. She can say she opposes what the legislature did, but she can't stand in the way once its done. And now, after she did so, she claims this fight was thrust upon her. I wish her office weren't so disingenuous about playing the victim. You went out of your way to pick this fight, Ms. Reed. Own it, will ya?

Media hits Bexar DA Susan Reed over prosecution of Christian activists for needle exchange ministry

The decision by the Bexar County DA to use needle exchange-related prosecutions for political grandstanding appears to be backfiring, at least to judge by the media response.

National media are paying attention, and editorial boards around the state are beginning to take potshots at Bexar County District Attorney Susan Reed's use of prosecutorial discretion to charge three Christian needle exchange activists with Class A misdemeanors instead of the Class C offense the officer originally alleged. In an editorial (Jan. 24) titled "Jailed for Ministry," the Lufkin Daily News pronounced:

What a ridiculous misuse of the law.

Intent is all-important in the law. If [73-year old volunteer Bill] Day and his organization were intending to make money from the sale of needles, or were intentionally promoting drug use in any way, we would be the first to call for their prosecution.

But Day is working both to ease suffering and to promote the general public health. For that, he and his group are not being prosecuted, they are being persecuted.

This points out that Texas needs to have some provision that allows needle exchange programs — at the very least as a pilot project and with responsible groups such as the Bexar Area Harm Reduction Coalition.

Bill Day is no criminal, he is closer to being a hero who is following his faith and taking care of people when no one else wants to bother with them.

It's never good news for a District Attorney when the media begins to identify the people you're prosecuting as "heroes" and the DA as the villain: Ask Terry McEachern or Mike Nifong. Similarly, the Houston Chronicle called Reed's decision to increase charges an "abusive use of her prosecutorial office," and editorialized over the weekend ("Needled to death," Jan. 27) that:

The incident makes a a mockery of clear thinking in this state when it comes to containing infectious disease among intravenous drug users, the people who love them and even their babies: Texas is the one state in the union in which it is illegal to run a needle exchange program of any kind, even though such programs have been shown to reduce the spread of HIV infection and hepatitis.

In 2007, the Texas Senate approved a bill that would have allowed local governments to operate needle exchange programs everywhere in the state, but in the House that authorization was whittled back to Bexar County only. With key opponents departing the Legislature and the Governor's office, I anticipate such legislation could receive an even more positive reception in 2009.

The Bexar DA is swimming against the tide of history on this issue, not to mention defying common sense and many in her own party. Her threat to prosecute county health workers who participate in a needle exchange pilot is more over the top, even, than the "mockery of clear thinking" in Bill Day's case. It's likely Day's ministry wouldn't have been out exchanging needles in the first place if Reed hadn't blocked the county program.

Reed's use of her law enforcement powers to promote her political positions discredits not just her but the system. One hopes the Attorney General will rule soon that the DA can't drag people into court for implementing a legislatively authorized pilot, then Day and Co. won't need to break the law in order to prevent disease among San Antonio's addicts.