947, 183 N.E.2d 230 [1962]). Moreover, the Federal Mail Order Paraphernalia Act of 1986 has also survived constitutional scrutiny (United States v. Main Street Distributing Inc., 700 F. Supp. 655, E.D.N.Y., 1988).

State and Local Litigation

Needle exchange programs have operated in what may fairly be called ambiguous legal circumstances. Arrests are sometimes made. Most prosecutions to date have involved needle exchange workers arrested for violating state or local drug paraphernalia or prescription laws (see American Civil Liberties Union, 1994, for a list of recent cases). The necessity defense has been the strategy most frequently used by attorneys arguing these cases. This defense strategy rests on the legal doctrine that an individual should not be held liable for an offense if the individual has engaged in a criminal activity in order to avoid a greater imminent harm, that is, to save lives (i.e., by preventing HIV transmission). Although this defense has been used repeatedly and successfully to obtain acquittals in the courts, it has serious limitations. For example, such favorable decisions:

  • do not create any legal or judicial precedent for future cases—for example, an individual could be required to stand trial following an acquittal if he or she is arrested for repeating criminal actions subsequent to the earlier trial;

  • can be invoked only in situations that satisfy stringent criteria (e.g., no adequate alternative to avert the harm was available; see Gostin, 1993:53); and

  • may not be a viable defense for the clients of needle exchange programs, i.e., injection drug users.

The authority of public health officials to sanction needle exchange programs has sometimes been challenged. Many cities and states have provisions in their public health codes that may under certain circumstances allow public health laws to take precedence over criminal laws to protect community health. (In a critical judicial opinion, the Washington Supreme Court unanimously declared that in the narrow circumstances of the case, the State of Washington's needle exchange program was lawful.)

When legal exemptions are granted under the general public health authority, regulations and reporting requirements may be imposed, limiting the ability of program staff to adapt their services to the needs of their clients (e.g., spending time labeling needles, limiting the number of syringes exchanged per visit). Specific examples of regulations that may run counter to the intended service provisions of programs are provided in the



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