A P P EN D IX B : L e g a l A pp r oa c h e s A pp r o v a l / a u thorizat ion In some cases, state legislation exists (or is sought) that explicitly authorizes syringe exchange/access programs – often as exemptions to existing and functioning paraphernalia laws. If well-crafted, this may be the most desirable form of legal sanction, as it means that a state or local legislative body considers syringe access to be a priority and approval of the SAP has been written into law. In some of these cases, any other appropriate legal barriers have also been addressed. Often, however, new legislation may codify unreasonable restrictions that otherwise may have been left open to a more generous interpretation. For example, while the SAP is able to operate with legal sanction, regulations on the possession of syringes may remain in place that could impact SAP participants. Or in some states, authorization is also required on a county and city level, which may create more barriers to actual implementation. Authorization in some localities have been achieved when health departments – in an effort to meet a public health need – use their authority to issue waivers of paraphernalia laws to SAPs. In these cases, SAPs must comply with the terms of the waiver, which may impose strict program requirements. Waivers may also be issued on a pilot basis until program effectiveness can be demonstrated. Waivers may dictate location of the SAP, either by city or county, or with greater specificity wherein specific conditions are placed on SAP location (for example, 500 feet from any school, etc). Other criteria that may be included in legal waivers include the implementation of ancillary services at the SAP (such as referrals to drug treatment, etc), syringe distribution limits and/or documentation and evaluation components. Legal authorization offers several obvious benefits, foremost of which is being able to operate without fear or threat of arrest or prosecution of program staff and volunteers from the police or other law enforcement. In addition, an approved SAP will have more opportunities to engage in outreach and open collaboration with other local organizations, such as AIDS service organizations and drug treatment programs. Authorized programs can apply for funding from government and private sources of funding, and may have an easier time securing resources in general. All of these factors may increase program sustainability in the long run. Unless broad legislation exists that protects the right to provide syringe access, there can also be drawbacks to operating programs with legal waivers or other authorization schemes. Authorization may limit program autonomy, and be coupled with very strict requirements with regards to operating policies and procedures, sometimes in a manner that can undermine program effectiveness. Legal waivers may place caps on the number of syringes that may be distributed, and/or impose strict one-for-one limitations on the program. In addition, strict reporting requirements and/or bureaucratic red tape may occupy staff time and should be figured into resource assessments. Further, once programs begin operating aboveground, they run the risk of becoming the target of local community opposition, even despite legal sanction. Of course, any of these drawbacks must be also considered in relation to the many benefits of legal authorization.
Dec l a r ato r y J udg men ts Another approach to accessing legal protection for program operation is to seek a “declaratory judgment”. Declaratory judgments ask the court to preemptively rule on an action or issue, before arrest or other legal action has been taken. For example, some states have asked the courts to rule in favor of syringe access, thus granting permission to conduct programs out of public health necessity. In cases where the court approves the SAP, an -80-
