Sacramento County’s needle exchange program is in jeopardy, and only the Board of Supervisors can save it
When HIV prevention counselor Lynell Clancy was arrested with a big bag of hypodermic needles last September, it was an unusual law enforcement interference with the Sacramento Area Needle Exchange (SANE) program’s efforts to combat the spread of HIV, hepatitis and other diseases.
But when the Sacramento County District Attorney’s Office decided to prosecute Clancy, resulting in a conviction last month that bars her from exchanging needles, it threw the entire program into jeopardy, and cast a spotlight on the Sacramento County Board of Supervisors.
Like other urban California counties have done, Sacramento County could legalize needle exchanges with the simple finding that the risk of intravenous drug users spreading disease constitutes a public health emergency. The county’s health officer even supports such an action, and studies show needle exchange programs decrease the spread of disease without increasing drug use.
Still, in this conservative county, there is no separating public health policy from politics.
“We know the county supervisors, politically, are not going to support a needle exchange program because they feel it will look like they’re condoning drug use,” said Peter Simpson of Harm Reduction Services, an agency that does outreach work with addicts. “But in the past, they’ve always looked the other way.”
While a handful of other needle exchange volunteers have been arrested for their activity around the state, their cases were dismissed after they argued that needle exchange is vital to the health and safety of the overall community. Clancy may be the first volunteer in the state to be convicted, and that conviction could have statewide significance.
Needle exchange supporters are quick to assign a political motive to a prosecution by the office of Sacramento County District Attorney Jan Scully, a Republican who opposes needle exchange programs. But Scully’s office claimed that politics were not involved in the prosecution of Clancy.
“She was prosecuted,” said Michael Blazina, the deputy district attorney who handled Clancy’s case, “because what she was doing was illegal.”
Clancy’s conviction has put a crimp in SANE’s activities because the volunteer of four years is no longer allowed to distribute needles as part of the terms of her probation, which lasts for three years and involved a $100 restitution fine. If she continues to distribute syringes, she could face jail time.
“Right now, we’re having trouble getting the syringes out to our big exchangers,” she said. “Quite frankly, we’re not sure how law enforcement feels about the fact that we’re still running our program.”
As a former heroin user who has watched too many users contract deadly diseases, Clancy was the backbone of the needle exchange program in Sacramento County, a program that had basically consisted of four volunteers and a pager. Clancy personally had distributed about 40 percent of the more than 500,000 needles that SANE exchanged last year.
SANE is desperately searching for new volunteers to fill the gap, yet that might not be easy. To Simpson and others, such as SANE’s volunteer executive director, Rachel Anderson, the prosecution of Clancy will serve to discourage new volunteers from coming forward, since the protections of the past are now gone.
Clancy’s conviction also raised alarm bells and upset volunteers who work for about 25 other needle exchange programs in California. That’s because an appeal of her conviction could potentially lead to a precedent-setting court ruling that would adversely affect more than a dozen other needle exchange programs in California that are still operating underground.
“I think it’s appalling that this should happen in our state capital and it sets an ugly tone and precedent for how these sort of services are going to be regarded by politicians and the court,” said Chris Catchpool, executive director of the HIV Education and Prevention Project of Alameda County, an Oakland-based nonprofit that is operating one of the 14 legal needle exchange programs in the state.
The Alameda County Board of Supervisors set the program up by taking advantage of Assembly Bill 136, which was adopted in January 2000. It allows a county to operate a legal needle exchange program as long as the county’s public health officer issues a legal declaration every 14 days, labeling HIV and other infectious diseases spread by sharing needles as emergency health problems.
But Blazina points out that SANE has never tried to get the Sacramento County Board of Supervisors to adopt the legal option under AB 136.
Anderson agreed that her organization did not push the Board of Supervisors for a vote. She said SANE hesitated because it feared that its existing underground program would have been put in jeopardy if the effort to set up a legal program under AB 136 was defeated by the board. And SANE believed that it would suffer such a defeat because it became convinced that the majority of board members were in opposition to setting up such a program.
“We worked with [Sacramento County Public Health Officer] Dr. Glenna Trochet, and she met with the board members individually and that’s how we knew that the votes weren’t there,” Anderson said.
Trochet said she would be willing to issue the emergency declarations for Sacramento County because she believes SANE’s needle exchange program has been effective. But Trochet said she hasn’t made an official recommendation to the Board of Supervisors because she’s already polled board members and learned that most of them are opposed to setting up a legal program under AB 136.
“What’s the point of doing an official recommendation if it’s likely to be voted down,” said Trochet. “That doesn’t prevent other members of the community from bringing it before the board.”
Sacramento County supervisor Illa Collin is a needle exchange supporter, but she acknowledged that other board members might not be in support of the program. Supervisor Roger Dickinson did not return a call seeking comment.
“In all candor, there are many politicians, rightly or wrongly, who do not want to confront this issue,” said Collin. “I think the reason they don’t is because of the fear that they’re fostering or enabling drug addiction.”
Yet in the wake of Clancy’s conviction, SANE is putting together educational packets to persuade supervisors of the benefits of needle exchange. SANE now wants to force a vote on the issue. Ironically, if they had done so earlier, Clancy might not have been convicted.
Clancy thought she was on a routine delivery on September 19 when she parked in front of Scott Tyler’s home on El Camino Avenue. A few days earlier, he had contacted her pager number and requested clean needles.
Though Clancy was unaware of it, city police officers acting on a tip had raided the house, discovering drugs and a methamphetamine lab (Tyler was later convicted on operating the lab and is now in state prison). Police officers greeted Clancy at the door and wanted to know what was in her bag.
“I had run into law enforcement officers before but they didn’t pay me any mind,” said Clancy. “But I had never walked in on a methamphetamine manufacturing lab. It wasn’t until after police looked into the bag and saw what was there and told me they were going to write me a citation that I told them where I was from.”
Clancy said she didn’t know Tyler was making drugs, but that didn’t matter to her anyway: “The important thing was he had old syringes. He needed new ones to replace them with.”
Initially, it wasn’t certain what the District Attorney’s Office was planning to do. But when the case was assigned to Blazina about three months ago, it became clear that Clancy would be prosecuted.
“No one knew that Sacramento County had changed its thinking. No one knew that prosecutors would no longer be looking the other way,” Simpson said. “Her arrest and prosecution changes the face of the landscape.”
Day in court
During the court battle, Blazina tried to dispute the conclusions of an overwhelming number of government-funded studies, by agencies from the U.S. Surgeon General’s Office to the Centers for Disease Control and Prevention, that say needle exchange programs reduce the spread of diseases such as HIV, and they do no harm. This conclusion has been reached by at least seven federally funded studies.
“I went into this with an objective viewpoint on needle exchange programs,” said Blazina. “The studies that the needle exchange programs rely on are of questionable value from a scientific standpoint.”
Blazina said a key expert he relied on for this viewpoint was Dr. David Murray, a Washington, D.C., source he found quoted in the pages of Reader’s Digest magazine. Blazina also cited three other studies that he claimed showed needle exchange programs actually increased the spread of disease among drug addicts.
However, Anderson said the authors of those studies have denounced Blazina’s interpretation of their findings, such as one study from Washington that Blazina said showed an increase of hepatitis transmission among drug users in the needle exchange program. Holly Hagan, the senior epidemiologist who conducted that study for King County and the city of Seattle, told SN&R that Blazina had distorted the conclusions of her study.
“This rate [for hepatitis transmission] was not statistically significant,” said Hagan. “The difference in the rates were so small they could have swung in the opposite direction with a different sample.”
Additionally, Hagan said numerous studies have already documented that Seattle has among the lowest HIV infection rates in the world and the city’s extensive needle exchange program is considered a big part of that success.
Yet the question of whether needle exchange programs work was not the pivotal issue in the trial. Rather, it came down to politics. Because the Sacramento County Board of Supervisors had the power to legalize needle exchanges, Clancy could not argue that she had to break the law to protect public health.
Politics of necessity
Clancy’s best hope for a defense in her case was a legal argument known as necessity, according to her attorney, Clyde Blackmon. The necessity defense has been used successfully by other California needle exchange volunteers.
“The defense is, ‘Yes, I did the conduct, but it was necessary for me to do that because I avoided a greater evil,’ ” said Blackmon. “That greater evil in the context of the case is to prevent the spread of HIV, hepatitis C and other blood-born pathogens that result from the sharing of needles by injection drug users.”
But Clancy lost her ability to use the defense—her only hope to avoid conviction—when Judge Richard Gilmore ruled the necessity defense could only be used if no other options were available. And since Sacramento County had the power to legalize needle exchanges, but didn’t, Clancy’s actions were illegal.
While Judge Gilmore’s decision does not set a precedent in itself, an appeal could lead to one if an appellate court upheld Gilmore’s decision.
“The appeal court could say the trial court is right,” said Blackmon. “So, it could set a legal precedent that would adversely affect needle exchanges in counties where a public health crisis has not been declared.”
Anderson said SANE plans to consult with other needle exchange programs throughout the state this week to seek their advice regarding the risk of any appeal. Clancy said she wouldn’t want to go forward with any appeal of her case if there was a risk of affecting other programs.
So now, with its volunteers at risk of being prosecuted, SANE—and thousands of IV drug users in the county—find themselves relying on action by the Sacramento County Board of Supervisors, possibly for their very survival.
SN&R staff writer Amy Yannello contributed to this story.