The Damage Done
While a state pilot program languishes in legal limbo, Bexar County is prosecuting needle-exchange volunteers
They look like little pieces of confetti in San Antonio’s parks, vacant houses and empty lots.
Look closer. The colors resolve into small toxic booby-traps — discarded heroin balloons and orange-tipped, used syringes, waiting for a passerby to step on them.
It’s a good bet the discarded needle and syringe will carry HIV and hepatitis viruses that could infect the unsuspecting victim.
Dr. Alexandra Loffredo, a family doctor, university professor, and health director at the University Health Center downtown, treated a teenage girl earlier this year who stepped on a used needle that penetrated her shoe and pricked her foot. She has to return to the clinic at regular intervals to be tested for blood infections that could affect the rest of her life.
“That’s a huge ordeal for a 14-year-old girl,” Loffredo said.
Clinic staff often see what they call unintended “community needle sticks” - usually people in vulnerable neighborhoods — which, of course, are the poorest and most disadvantaged areas of the city.
“We’ll have parents of 6- and 7-year-old kids who will tell us they see prostitutes working behind their houses, or they always see needles on the ground. That will start a conversation with the kids about the danger of touching or picking up a used condom or needle,” Loffredo said.
It’s not a pleasant subject, but with 13,000 addicts in San Antonio, a flourishing sex trade, and younger addicted mothers and babies, it’s one that alarms public health officials here. Taxpayers living miles away from the problem north of Loop 1604 may think the statistics don’t affect them, but the tax burden to treat the diseases of addiction in the county’s public hospitals hits everyone.
So, it may seem strange that city police and county prosecutors are raising the stakes in the prosecution of a church-supported needle exchange program.
On Thursday, January 23, the police department plucked a “traffic ticket” misdemeanor from Municipal Court and re-filed it with the District Attorney’s office as a more serious Class A misdemeanor against three volunteers with the Bexar Area Harm Reduction Coalition, a needle exchange and condom program. Now, 73-year-old Bill Day, 67-year-old Mary Casey and registered nurse Melissa Lujan 39, face up to a year in jail and a $2,000 fine each for allegedly distributing narcotic paraphernalia. The trio was cited by patrol officers on January 5 while taking used syringes from addicts and prostitutes on the street for disposal by the Metro Health District. They showed officers what they were doing — reportedly handing out baggies containing a new insulin syringe, a condom, a cotton ball, an alcohol whip, a commercial bottle cap for cooking a drug dose, and referral pamphlets to public-health agencies.
“It’s not like they were doing anything sneaky,” said State Representative Ruth McClendon, a longtime advocate for legalizing needle exchanges in Texas. “This group is well known in our community.”
But in the eyes of the police and the DA, these perfectly legal items, when assembled in a baggie and given away, constitute a “heroin injection rig.”
“You cannot flaunt the law regardless of how well-intentioned you are,” First Assistant District Attorney Cliff Herberg explained.
The case was re-filed as a more serious charge because, Herberg said, “it meets the elements of the offense.” The decision was made in the ordinary process of review given to any charge working its way through the system, he said.
Still, Herberg concedes that the cases were re-filed as Class A misdemeanors only after discussions between him and Assistant Police Chief David Head. And both men agree that it is not usual for them to review every one of the thousands of misdemeanor cases that come into their respective offices each week.
GOOD DAYS/BAD DAYS
Bill Day was greeted as somewhat of a Christian soldier when he went to Sunday services at downtown St. Mark’s Episcopal Church across from Travis Park.
“People came up and shook my hand, hugged me, patted me on the back,” Day said on Monday. Asked if he considered the case “a social-justice issue,” Day said yes. “Look at the first four books of the New Testament. They all mention tending to the poor.”
The incident received national media attention over the weekend, and much of the congregation, which includes many prominent San Antonians, seemed glad.
Day is the parishioner who brought the needle-exchange program to the attention of the church’s community outreach committee in 2005. It approved sponsoring the coalition and ponied up funds for a $10,000 van for the group’s use.
Reverend Michael Chalk, rector of St. Mark’s, rhetorically embraced Day.
“We’re just trying to help,” Chalk said. “We’re called on to alleviate suffering and help the poor as best we can.”
The mood at the DA’s office Monday morning was definitely not as buoyant as at the nearby church the day before. Express-News columnist Jaime Castillo had blasted the needle-exchange prosecution over the weekend, as had the editorial page of the Houston Chronicle.
Reed, a shrewd prosecutor and former judge who’s butted political heads in Bexar County for three decades, wasn’t offering her personal opinion on needle exchange programs to the media. Herberg was sweating that one out by himself.
The news that San Antonian Gerry Goldstein — one of the “pros from Dover” among the nation’s civil rights attorneys — was going to represent Day didn’t help.
Goldstein was in Aspen at his birthday bash when contacted by the Current last Thursday about the needle-exchange case. Lyle Lovett was signing Happy Birthday (in person) to the longtime ACLU watchdog.
Goldstein called the re-filing of the case to a Class A misdemeanor “serious overkill” on the part of the police and the DA’s office.
“These are people whose only concern is to try and make our city a better place to live,” he said of the Bexar Area coalition.
Herberg bristles at talk about overkill.
If it’s true, as the police report states, that Day told officers he was a county employee, that’s not only a sin in the eyes of the church, it also could be considered impersonation of a public official, a felony offense.
Were the volunteers looking for a “test case” on the needle exchange issue?
Herberg said he certainly wasn’t. “This thing was thrown in our laps.”
Chief Head added that “there was no communication with field officers to be on the lookout” for a needle exchange group.
As for Day: “I think I did know it could become a ‘cause celebre,’” he said in answer to a reporter’s question.
McClendon thinks it’s about time.
“Texas is the only state in the nation that does not allow for needle exchange,” she said. “Cities throughout the state have programs operated through religious organizations, and law enforcement officers statewide are aware of these programs.”
BUT IS IT ART?
Narcotics paraphernalia is one of those wispy legal constructs that require law enforcement authorities to be mind-readers. Ordinary objects that are perfectly legal can be considered criminal instruments if police decide they are intended to be used unlawfully. Wire-cutters like the ones electricians carry around today could get a man hanged in 1900 Texas in the vicinity of a barbed-wire enclosed ranch.
Narcotics paraphernalia, in the eyes of a law that has been rewritten and amended a dozen times since first entering the Texas statutes in 1905, usually refers to an insulin syringe that’s legal in the hands of your diabetic aunt but maybe not your niece who happens to be a known prostitute with a heroin habit. Depending on the decade and the drug fashion of the moment, it could also be a crack pipe or a hookah. Head shops have been selling small pipes that might be construed as paraphernalia for years, and police used to cite them. But it rarely happens today.
It would be disingenuous to argue that the coalition’s kits are not used for the injection of illegal drugs. But police in every city in the country distribute resources and manpower according to the community’s perceived needs and priorities. Police Chief Bill McManus was involved in a successful needle exchange program when he was chief of Minneapolis before coming to San Antonio.
Dr. Fernando Guerra, director of the Metropolitan Health District and a practicing pediatrician, says San Antonio suffers “enormous social and economic costs” because of IV drug abuse and the sex trade that supports drug habits and spreads STD’s – sexually transmitted diseases. And anything that reduces that cost is good policy.
“There’s a significant human dimension to all this,” Guerra said. “We see more and more women in their child-bearing years falling into the tragic use of illicit drugs, heroin and methamphetamine. If they go through pregnancy with continued use, it affects the baby.” Guerra said he was currently withdrawing two newborns in his own practice who are addicted to illegal drugs because they were born to addicted mothers. These children end up in foster care at state expense.
And the cost to taxpayers is tremendous. Addicts going through end-stage liver disease can cost county health programs hundreds of thousands of dollars before they die, even if they are refused transplants because of continued drug use. State estimates are that more than $100 million was spent over two recent years by Texas public health institutions treating HIV and Hepatitis B and C cases.
“We’re really lagging behind” other cities and states, Guerra said. “There’s this misperception that giving IV drug users needles and syringes promotes drug use. But these people are dependent on their supply of drugs and they’re going to inject them however they can.”
What particularly galls prosecutors and police about the criticism of their prosecutions is the fact that they were under the impression that needle-exchange programs were on hold for the moment. They were waiting for the attorney general to issue an opinion on the legality of language placed in the last omnibus health bill by Representative McClendon and Senator Jeff Wentworth.
Inserted late in the session, the language creates a pilot needle-exchange program in Bexar County and only in Bexar County. With that in hand, county commissioners last fall appropriated $60,000 to fund a needle-exchange program to be operated by county government’s health offices. But questions were raised immediately about whether the pilot program language in the health codes would override criminal statutes.
“Susan (Reed) flat out ruled that this law didn’t really change the criminal law. And she made the announcement that she was going to arrest these people,” recalled Wentworth. So his office requested the AG’s opinion last September, and since then, the county’s needle-exchange workers have cooled their heels gathering statistics.
Herberg points out that the Texas District and County Attorneys Association has written a brief stating that the language authorizing the pilot program fails to protect volunteers from prosecution. “It’s not like we went out looking for a case,’’ insisted Herberg. “They dumped it in our laps and asked us for an opinion on whether it was legal.”
But why would that language have applied to the church-supported, privately funded coalition plan anyway?
Curt Harrell, a retired laboratory and blood-bank manager and board president of the non-profit coalition, said too much time has passed already. Harrell has worked to create and fund HIV and hepatitis reduction programs in Texas for 14 years. He has testified before House and Senate health committees. He has seen language put into every statewide health plan since 1998 calling for needle-exchange programs. And he was glad in 2005 when the coalition was registered with the county, given non-profit status by the IRS, and was finally up and running.
He did all of that work as a volunteer. Yet on a recent neighborhood “tour” to a vacant lot with a dozen discarded syringes less than a mile from Guadalupe Plaza where Pope Paul spoke, Harrell admitted being “frustrated.”
“Every day we’re not doing what we’re supposed to be doing, someone else is catching HIV or hepatitis unnecessarily.”