State law has conflict on needle possession

Seven syringes a man got from a needle exchange program run by the Monroe County Health Department had the chance of landing him in prison the moment he left the county.

After a traffic stop in Johnson County in March where a sheriff’s deputy found the syringes, Toby L. Magness, 40, Bloomfield, was arrested on eight felony charges, and this month he was sentenced to two years in prison.

But if that same traffic stop had happened about 40 miles away in Monroe County, Magness likely would not have faced any charges.

The situation illustrates what officials are calling a conflict in state law.

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Indiana counties are allowed to start needle exchange programs, where drug users are given clean needles in exchange for used ones, with the goal of stopping the spread of diseases, such as HIV or Hepatitis that can be caught from sharing needles. In fact, state legislators amended the law this year to allow counties to start the programs themselves, without relying on the state.

But at the same time, possessing those needles without a prescription with the intent of using them for drugs is illegal. And just two years ago, that crime was elevated from a misdemeanor to a felony in many cases.

Needle exchange programs have been a source of debate since they were started. Johnson County does not have a program, but eight other counties in the state do, and six others, including Marion County, are considering them, state health department officials said.

Under the recently updated state law, county health departments or county commissioners are able to create a local needle exchange program. But officials said having law enforcement officials, such as the county prosecutor, on board with the decision helps.

Johnson County Prosecutor Brad Cooper is adamantly opposed to the programs.

“It’s enabling people to shoot heroin,” Cooper said.

“If you are shooting heroin, that is a crime, possession of a syringe is a crime. I really don’t have a lot of sympathy.”

Indiana Attorney General Curtis Hill is also opposed to needle exchange programs. One of his top concerns is a lack of accountability with the programs, including making sure users are turning in as many used needles as they are getting new or making sure they are keeping those needles within the county where the program is located, Hill said.

“You have to be very, very careful that you’re not creating a worse situation than what you are trying to prevent,” Hill said.

But health department officials say the program is meant to serve a larger need: public health.

“We need every tool we possibly have to save lives and that in the end is what it is about, it’s about saving people’s lives,” Monroe County Health Department administrator Penny Caudill said.

And having a state law that directly conflicts with the needle exchange program the county legally created is a big concern, she said.

“It pits public health and the judicial side against one another, when in the end, we really have the same goal, we want healthy, safe communities,” she said.

Exchanges grew out of rise in HIV

The first needle exchange program in the state began in Scott County in 2015 after officials declared a public health emergency. At one point, the county had 22 new HIV cases in a week, said Dennis Stover, director of the Indiana State Department of Health HIV/STD/Viral Hepatitis division.

That issue forced Indiana to be in the forefront of the needle exchange programs, though other states were already dealing with the same issues, he said.

The main goal was to help curb the spread of HIV and Hepatitis, which had also become a huge concern with more and more people being diagnosed, Stover said.

“What we know is when you take people away from things that harm them, they become healthier,” Stover said.

By giving a drug user a clean needle, that can help slow the spread of disease, but also addresses other health issues, such as wounds that form from the use of dirty needles, which also is a public health cost, he said.

The program has made a difference, he said.

In the more than two years since the needle exchange program was started, the rate of HIV infection dropped to one to two a month, and 76 percent of people infected with HIV are virally suppressed, meaning they can’t transmit the disease to someone else, he said. But the impacts of the rapid spread of the disease two years ago are still devastating to the community economically and emotionally, he said.

Stover has heard the arguments against needle exchange programs, he said. Some counties have recently chosen to end their needle exchange programs, but others are still considering starting their own, Stover said. That requires officials to be more progressive than what is typical in communities, he said.

“They are not encouraging drug use. They are encouraging safe injection practices, for people who are already using drugs, at the rate they are going to use them, with or without clean needles,” Stover said.

Officials in Monroe County had that same discussion when they decided to create a needle exchange program two years ago. And studies have shown that those programs do not encourage people to use drugs, Caudill said.

“If I need, because of my disorder, to use a drug today, and the way I use it is to inject it into a vein, then I am going to do that, whether you give me a clean needle or not,” she said.

At the time, Hepatitis C infections had been steadily going up since 2009, and half of their public health nurse’s cases were following up on Hepatitis transmissions, said Kathy Hewett, Monroe County Health Department health educator.

Since starting the program, officials have been measuring how many they are serving. But next, they want to begin measuring the impact and results, Caudill said. When participants come in, they exchange used needles for clean ones, but it doesn’t have to be an even exchange. Participants also get an identification card, showing they are part of the program.

But in addition to helping stop the spread of disease, they are also making a connection with users to help them with their needs, such as food and eventually treatment for addiction, Hewett said.

A key function of health departments is harm reduction, ranging from stopping the spread of disease to educating people on how to care for themselves, Caudill said.

Because drugs are illegal, helping users resonates differently with people than if they were helping people manage issues with diabetes or a heart condition, but the goal is still the same: saving lives, Caudill said.

Not enough oversight

When creating their program, Monroe County officials had to discuss it with multiple officials, including law enforcement. This had to be approached as a public health issue, and not a crime issue, she said.

Participants of their program know that possessing syringes for drug use is illegal under state law, Caudill said. And that can be a concern to users who may discard a used syringe, rather than bring it in to trade for a new one, since they don’t want to be caught with one and face a criminal charge, she said.

The Monroe County Prosecutor’s Office made a decision when the needle exchange program was created to not file criminal charges against someone caught there solely for possessing a syringe, according to a statement from the office. The goal was to build trust and encourage people to use the exchange program, though other criminal charges could be a possibility based on each case, the statement said.

Often times, the decision on whether to have a needle exchange program is driven by the county prosecutor, said State Sen. Jim Merritt, a Republican who represents Marion and Hamilton counties who has been heavily involved in legislation for drug issues, including the law that allowed counties to create their own needle exchange programs.

The decision to create a program is a local one, made county to county. So if someone does get needles from a local program, they need to take that into consideration when they go elsewhere because possessing those needles is still illegal, Merritt said.

That law is not something Merritt is planning to change, he said.

The needle exchange programs alone are a complicated, difficult issue, he said.

“A needle exchange is counterintuitive, however you look at it. Giving needles or other equipment to an addict to shoot up or use is counterintuitive,” he said.

But, if local officials manage the program, it can work like it did in Scott County, he said. And because of the conflicting laws and the debate around the issue, state lawmakers wanted to leave the decision of whether to have a program up to the counties, with consultation from the state department of health, rather than having the state guide the process, he said.

Needle exchange programs have good intentions, but don’t have the accountability needed, Hill said.

That is illustrated in Magness’ case, because local officials just aren’t able to ensure the needles stay with the participant and in the county where a needle exchange program has been approved, he said.

County programs need to track more data, including the number of syringes going out and in to make sure more aren’t being sent out into the community, and whether participants are seeking help for their addiction, he said. And they also need more restrictions, he said. In some communities, users are getting significantly more needles than they are turning in, Hill said.

“There is a great deal of risk involved in facilitating dangerous drug use in the name of trying to curb drug abuse,” Hill said.

And the expansion of the programs with the recent legislation creates confusion, since possessing syringes is still illegal, he said.

“It sends a vague, confusing message to communities and law enforcement about exactly what to do about the issue of needles in the community,” Hill said.

Johnson County does not have the health crisis other counties have had, and does not need a syringe exchange program, Cooper said.

And if users come here with needles — even if they got them legally from a needle exchange program elsewhere — they are breaking the law, he said.

“They are illegal the second you walk out of the health department, quite frankly,” Cooper said.

In Magness’ case, he and another woman were riding around, using drugs, sharing needles and had thrown at least one needle out the window, he said. And his isn’t the first case of people bringing needles into the county, he said.

That is just another example of why needle exchange programs are ridiculous, Cooper said.

“The whole notion that this is somehow going to be responsibly used by people who are addicted to and using heroin is asinine,” Cooper said.

Users are not even sure what they are injecting into their body, especially as concerns rise over Fentanyl and other substances being added to heroin, he said.

“And you think they are going to worry about whether they have a clean needle. They are not thinking clearly because they are not sober,” Cooper said.

Cooper plans to continue filing charges against and prosecuting someone who is arrested with needles, he said.

“If it prevents someone from bringing needles into Johnson County, then all the better,” he said.

And making those arrests can also lead people to get the help they need, since sometimes the only option available comes after someone is arrested and sent to the Indiana Department of Correction, Hill said.

“A lot of people think prosecutors and police want to lock people up, and we are not shy to do that. But when it comes to issues of this nature, it’s really about holding people accountable and doing what we can to get them the help they really need,” Hill said.

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Here is a look at state law:

Needle exchange programs

A 2017 law states that counties can create their own needle exchange programs to address public health issues without the state department of health driving the process.

Possession of a syringe

State law states that possession of a syringe without a prescription and with the intent of using a drug is illegal. In 2015, the crime was elevated from a misdemeanor to a felony in many cases.