As the nation responds to an escalating polysubstance use crisis, many Appalachian communities have placed renewed focus on comprehensive harm reduction via needle and syringe exchange programs (SEPs). According to the Centers for Disease Control, rates of acute hepatitis C (HCV) increased over 400 percent among Americans ages 20–29 between 2004–2014, presumably as a result of sharing syringes during injection drug use. Similar trends have been observed in Virginia, leading the former state Department of Health (VDH) Commissioner to declare a public health emergency several years ago. Eventually, the rapid rise of acute hep C pushed state legislators to authorize comprehensive harm reduction through passage of HB 2317 in 2017.

However, almost two years after the law was signed by former Governor Terry McAuliffe, only three of the 75 eligible counties across the state (including just one of the top 10 counties by HCV rate) have been approved to move forward with comprehensive harm reduction. Indeed, the first program authorized by the state has been successful, but is only engaging 24 unique individuals. This in a state with 8.5 million people and over 2,000 cases of HCV among young adults reported in 2017 alone.

Clearly, Virginia’s approach is not meeting the scale of the problem. According to former VDH Commissioner Marissa Levine, “the barrier has been law enforcement.” It’s true that many communities interested in moving forward with harm reduction have faced intense resistance from local police. However, on closer examination, the real failure lies in a structural approach that delegated key public health decision-making to members of law enforcement in the first place.

HARM REDUCTION: A CRITICAL INTERVENTION

Decades of evidence suggest SEPs are a cost-effective tool that can decrease transmission rates of HIV and, to a lesser extent, HCV among persons who inject drugs. SEPs may also play a role in stemming the tide of bacterial infections, given skyrocketing rates of injection-related infectious endocarditis in North Carolina and Virginia. While some are concerned that harm reduction will encourage substance use or public disorder, reviews by the National Academy of Medicine and World Health Organization agree there is no evidence to suggest that it leads to increased frequency of injection, while other research has shown SEPs are not associated with changes in local crime. In fact, SEPs can serve as a critical pathway to treatment and recovery; new models across the country are co-locating buprenorphine providers within SEPs to ensure low-threshold access to medications proven to risk of overdose and mortality.

Given the clear public health benefit of SEPs, other Appalachian states have moved forward. Kentucky passed legislation authorizing harm reduction several years ago, and is now poised to operate more than 50 SEPs, while North Carolina and West Virginia have more than 20 programs each.

LACK OF IMMUNITY: A LEGAL STALEMATE

While Virginia did authorize SEPs via HB 2317, the statute was significantly weaker than other syringe access laws across the country and in neighboring states due to lack of political will in the state legislature. First, the law does not exempt possession of sterile syringes or small amounts of drugs from existing paraphernalia or residual substance laws. Second, the law required any local community to obtain formal written consent from local law enforcement officers for programs to operate. Third, the law only granted approval for harm reduction programs to a limited subset of counties and districts across the state.

As a result, while harm reduction is authorized in Virginia in theory, its implementation has been severely limited in practice. In particular, the requirement for local law enforcement to formally approve SEPs while the law continues to criminalize possession of even sterile syringes has led to a poor arrangement for all stakeholders.

Members of law enforcement feel as if the government is providing drug paraphernalia with one hand while asking them to punish people with the other. This is particularly illustrated by the case of Roanoke, a large city in western Virginia with among the state’s highest burden of HCV. There, a protracted debate over harm reduction has led to significant tensions between public health advocates and law enforcement, leading the chief of police to say, “I cannot sign something that asks me to condone felony behavior. And that’s the hiccup here.”

This has disastrous consequences for those who stand to benefit from harm reduction. Even in Richmond, a jurisdiction that has moved forward with an SEP, local police captain Emmett Williams said, “Nobody gets a free pass. If we come across participants with illegal narcotics and syringes, and they’re a part of the needle exchange program, that’s a discretionary arrest.” How effective can a harm reduction program be if police publicly state they will arrest participants if found?

COMPREHENSIVE REDUCTION: VIRGINIA AND BEYOND

Moving forward, there is a clear solution:

  • We believe that Virginia legislators should decriminalize possession of syringes and residual substances and remove the formal requirement for law enforcement officers to have to formally sign off on the development of public health programs.
  • If decriminalization is not politically feasible, policymakers should follow the precedent as outlined in North Carolina’s authorization law (HB 972), which provides limited immunity to all harm reduction participants from drug paraphernalia and residual substance laws if they provide written verification that syringes were obtained from a harm reduction program.

Virginia’s example is indicative of a tense legal environment surrounding harm reduction authorization across the United States. According to the LawAtlas Policy Surveillance Program, only 21 states explicitly authorize SEPs under state law (as of July 2017). As more states move to expand access to harm reduction programs, though, advocates and critical observers should beware of legislation that does not provide legal immunity from existing drug paraphernalia and residual substance laws.

For now, it’s time for policymakers in Virginia and beyond to demonstrate moral courage and stand up for those most affected by the public health crisis crippling our nation. And the first step is expanding access to comprehensive harm reduction.