TWENTIETH ANNUAL REPORT OF THE RESEARCH ADVISORY PANEL 1989 [part 1]

SUGGESTED LEGISLATION

Remove penalties for possession of needles and syringes. The statement that heroin is inherently not a dangerous drug has been somewhat weakened by the appearance in the community of the AIDS virus. This virus is transmitted, among other ways, by the use by one person of paraphernalia contaminated with the blood of an infected person. The AIDS virus has already spread through the drug-using community to an extent that varies with the sanitary practices of the local population. The prevalence of infection is much higher, for example, in New York City than in San Francisco.

There are two suggested methods of controlling the spread of this relatively new virus. The first, demonstrably ineffective, is to adopt a moralizing attitude, continue our current practices and simply add the individual tragedy and economic burden to the community of more AIDS patients. There is no reason to conclude that the additional threat of infection with AIDS has lead to a decrease in the use of injected drugs.

The other method of controlling the spread of the AIDS virus would be to encourage sanitary practices at the time of injection by making it possible for each heroin user to use his own "outfit", that is, syringe and needle, rather than accept the risk of using one contaminated with another addict's blood. This would become permissible as well as possible if the intravenous (IV) drug user were permitted to legally possess his own syringe and needle. The idea of providing or permitting the possession of the paraphernalia is controversial being viewed by some as offensive to the public morality. This attitude appears extremely shortsighted, in that making clean outfits available will not affect the prevalence of heroin use for the simple reason that syringes and needles are not difficult to obtain at this time. It follows that current experimental programs of needle exchange will be ineffective so long as the IV drug user fears harassment or arrest for carrying paraphernalia on his person.

Heroin users understandably try to avoid carrying supplies of their drug and their injecting paraphernalia any more than is absolutely necessary since the mere possession of the substance and the equipment is a punishable, although nominal, crime. The possession of paraphernalia is defined as a misdemeanor. Even though convictions under that complex section of the code are not easy to obtain if the charge is contested, the availability of the charge becomes a convenient means of harassing the addict and of subjecting him, in effect, to a three-day jail sentence without trial. A person with a prior drug related conviction must be especially careful since, in such a situation, even the possession of an ordinary spoon can be construed as possession of paraphernalia. As a result, users are reluctant to carry their own outfits and, their compulsion being upon them, are quite likely to use whatever equipment is available at the site of drug purchase. People driven by the compulsion that a heroin user feels, and given their choice between using someone else's outfit and doing without their drug will use the possibly contaminated equipment.

The Panel urges an approach that would acknowledge the difficulty of treatment and accept a humane, rather than a punitive approach, and attempt the control of the spread of AIDS through the drug-using population by removing the prohibition against the possession of drug using equipment, which equipment is after all no different than that used by a diabetic or that available in the trash cans of some dozens of offices and hospitals in every city. The suggestion then, is that those sections of the codes (California Health and Safety Code sections 11364, 1 1 364.5, and 1 1 364.7 and Business and Professions Code section 4140) be revised to decriminalize possession of needles and syringes. Whether syringes and needles remain prescription items or not is a minor consideration in the spread of drug abuse, since this equipment or substitutes improvised out of plastic tubes and pacifiers are already easily available.

The result of this action would be to control to some extent the spread of the AIDS virus. Fortunately, in California the action could have significant impact since the incidence in drug users with HIV infection is still below 5% in cities other than San Francisco. Also, there would be important progress in controlling the spread of hepatitis, other infections, and local abscesses. Most important, it would provide experience and presumably evidence that liberalization of regulations would be followed by some gain in individual-and public health rather than by a massive increase in drug use. There is no reason to believe that the availability or lack of availability of needles and syringes has anything to do with the recruitment of new heroin users. Except during the early years of the epidemics (1 949-50 and 197071) the spread of heroin use to new users can be best understood by considering what older students in this area refer to as the "infectious disease model." New heroin users do not appear because of the availability of syringes, but because of their contact with established heroin users.

Allow cultivation of marijuana for personal use. Insofar as damage to the individual and society is concerned, the quantitatively most important drugs are alcohol and nicotine in the form of cigarettes. There remains, then, as the other quantitatively important drug, marijuana, which has become, for a large fraction of the population, a social drug comparable in pattern and approaching that of alcohol in extent of usage.

Marijuana is a disinhibiting drug used socially to relieve anxiety and as such has many liabilities in common with alcohol. We acknowledge that marijuana is not without Its effect on the individual user and would not suggest any change that carried a significant risk of increasing the use of marijuana. We resist the use of the word "legalization" in relation to any drug, including marijuana. On the other hand, an objective consideration of marijuana shows that it is responsible for less damage to the individual and to society than are alcohol and cigarettes, the other social drugs mentioned above. A further consideration in forming a reaction to the wide use of marijuana is that it is a source of conflict between generations and of disrespect for the law.

Equally important is the economic and, to some extent, criminal activity associated with the marketplace of marijuana. At the moment, we are adding millions to our trade deficit, off of the books to be sure, by our purchases of marijuana in Columbia, Mexico, Thailand, and elsewhere. Yet, thanks to a previous action of the California Legislature, the product of this illegal activity may be possessed and used by the citizen with the possibility of only minor sanctions.

The Legislature, some years back, did liberalize the regulations pertaining to marijuana in making the possession of a small amount (less than one ounce) an infraction, rather than a crime, calling for a citation and a nominal fine upon the first violation. This change has not lead to any disastrous consequences. On the contrary, it has reduced the tension between generations and decriminalized to some extent the generally sanctioned use of this new social drug by large numbers of people.

This new situation, for which we applaud the Legislature, is however, not stable, in the sense that the failure to act in relation to the supply of the drug leaves unmet the question of the still illegal market and the economic problem that that entails. If this disparity could be resolved there would be economic gain and a great simplification of law enforcement which now devotes a considerable effort to seizing a small fraction of the illegal importations or cultivations.

The Panel therefore suggests that the law be changed to permit cultivation for personal use. Such cultivation would be permitted only on property serving as the residence for the individual, that is, it would not authorize the cultivation of fifty plants on a National forest and it would not permit the possession outside of the home of more than the present one ounce, nor would it sanction the provision to others in or out of the residence whether by sale or in the form "parties". The change regulating the provision of this drug must be made in such a way that we do not see the development of another industry comparable to the alcohol or cigarette industry. This would require extensive revision of Health and Safety Code, Section 1 1 358, which covers substances and matters other than the plant.