Annals of Health Law
ACHIEVING AN AIDS-FREE GENERATION
court refused to overturn defendants’ convictions, citing New Jersey’s “zero
tolerance” policy as a rigid standard for drug paraphernalia possession and
distribution that did not require a culpable mental state.92 Unlike the court in
Spokane County Health District, which relied upon the legislature’s
statements in finding SEPs lawful despite the lack of express authorization
and the conflicting criminal statute, the McCague court did not discuss New
Jersey’s public health stance or its public health statutes, perhaps because the
SEP was privately operated.
Drug paraphernalia laws remain an important barrier to legal operation of
SEPs. Federal funding alone will not change that. However, because these
laws spring from federal recommendations rooted in the War on Drugs,
federal policy affirming SEPs as a tool in the National HIV/AIDS Strategy
could influence the way states formulate or interpret their statutes. In
addition, Congressional endorsement of SEPs for preventing HIV could help
create a record for the public health rationale, similar to the effect that the
Washington legislature’s statements had in Spokane County. Accordingly,
federal leadership authorizing and funding SEPs could contribute to the
pursuit of an AIDS-free generation.93
B. The Ban On Federal Funding For Syringe And
Needle Exchange Programs
Consistent with federal anti-drug policies, Congress first banned federal
funding for SEPs in 1988. Except for a brief period in the first Obama
administration, the ban has been in place since 1988.94
1. Circumstances Leading Up to the Ban
When President Ronald Reagan entered office in 1981, he prioritized
Nixon’s “War on Drugs.” First Lady Nancy Reagan’s anti-drug campaign,
“Just Say No,” soon followed.95 Following the Anti-Drug Abuse Act of 1986,
which created mandatory minimum sentencing guidelines for drug-related
convictions,96 and the Chemical Diversion and Trafficking Act of 1988,
92. Id. at 944; see also Commonwealth v. Leno, 616 N.E.2d 453 (Mass. 1993) (finding a
necessity defense could not be awarded where defendants attempted to distribute sterile
needles and syringes in an effort to prevent transmission of HIV among IDUs).
93. All three of the programs that received federal funds prior to the ban’s reinstatement
were legally authorized. See Green et al., supra note 25, at e11. None of the unauthorized SEPs
received any state or federal funding. Id. at e10.
94. See Am. Found. for AIDS Research, supra note 67.
95. Thirty Years of America’s Drug War, supra note 6.
96. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat 3207 (1986). This
Act outlined penalties for drug possession violations. For example, “[ i]n the case of a