New Jersey Appellate Court Upholds Lower Court Decision Disallowing Needle-Exchange Program in Atlantic City
A three-judge Appellate Division panel on Tuesday unanimously ruled that a 2004 Atlantic City, N.J., ordinance approving a needle-exchange program intended to help prevent the spread of diseases, including HIV and hepatitis, violates state drug laws, the Newark Star-Ledger reports (Schwaneberg, Newark Star-Ledger, 8/17). The decision upholds a September 2004 ruling by New Jersey Superior Court Judge Valerie Armstrong, who said the city does not have the authority to create a needle-exchange program. The Atlantic City City Council in June 2004 approved 7-1 a proposal to implement a needle-exchange program, even though the New Jersey Office of the Attorney General in May 2004 said that the proposed program did not have the legal authority to operate. Atlantic City Department of Health and Human Services Director Ron Cash said that the city's authority to begin such a program was based on a 1999 law that exempts government agencies from a section of state law that criminalizes needle and syringe possession, but state Attorney General Peter Harvey (D) reviewed the law and determined that it allows government agencies to distribute needles and syringes only to people with prescriptions. Atlantic County Prosecutor Jeffrey Blitz later filed a lawsuit to halt the implementation of the state's first needle-exchange program (Kaiser Daily HIV/AIDS Report, 9/3/04). Writing for the appellate panel, Judge Stephen Skillman said that although the court recognizes the potential benefits of needle-exchange programs, "Atlantic City and its employees are not exempt from the Code (of Criminal Justice) provisions prohibiting the possession, use and distribution of drugs and drug paraphernalia simply because they adopted a needle-exchange program for beneficent reasons" (Curran, AP/Philadelphia Inquirer, 8/17).
The ruling represents another setback for HIV/AIDS and drug treatment advocates and further weakens an executive order signed by former New Jersey Gov. James McGreevey (D) in October 2004 that declared a "state of emergency" until Dec. 31, 2004, and authorized the state health department to administer needle-exchange programs in up to three cities that met specific requirements, the Bergen Record reports (Groves/Fasbach, Bergen Record, 8/17). Atlantic City and Camden, N.J., last year adopted local ordinances creating needle-exchange programs and were scheduled to start the projects on July 1 under McGreevey's order. The cities planned to provide clean syringes for injection drug users in exchange for used ones, as well as referrals to health care providers, social services and addiction treatment programs if drug users asked for them (Kaiser Daily HIV/AIDS Report, 6/22). However, the Appellate Division in June -- just two weeks before the programs were set to begin -- temporarily stayed the executive order after seven state lawmakers requested an injunction. The lawmakers question whether McGreevey had the authority to sign the order (AP/Philadelphia Inquirer, 8/17). Bob Sandman, the city attorney handling the Atlantic City case, said he has not yet decided whether to appeal the Appellate Division's ruling to the New Jersey Supreme Court or join the defense of McGreevey's order (Newark Star-Ledger, 8/17).
Supporters of needle-exchange programs said the ruling was not surprising. "All I can say is it's a classic case of public health vs. law enforcement," Cash said, adding, "I think health is equally as important as law. It's a crisis in Atlantic City. We have to do something creative to handle it." State health officials say that injection drug users represent more than half of the state's 62,000 people living with HIV/AIDS. However, state Assembly member Joe Pennacchio (R), one of the lawmakers who filed for the injunction against the executive order, called the ruling "a victory for common sense." He added, "Our efforts should be maintained at stopping drug abuse, not enabling drug abusers by giving them needles" (AP/Philadelphia Inquirer, 8/17). State Sen. Joseph Vitale (D) said the court's decision is another reason for the Legislature to pass a bill that would allow municipalities to establish needle-exchange programs. "Everyone is for the idea of providing more prevention, but few legislators have stepped up and done it," Vitale, who has co-sponsored such a bill, said (Bergen Record, 8/17). "The longer we delay, the more lives we lose to dirty needles," he added (Newark Star-Ledger, 8/17).