NJ NEP Workers' Conviction Upheld in Appeals Court 7/31/98

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Taylor West

In a state with one of the highest rates of injection- related HIV transmission in the country, needle exchange operators Diana McCague and Thomas Scozzare were rebuffed on an appeal of their conviction for furnishing hypodermic syringes. By a vote of 3-0, the New Jersey Superior Court upheld the August 1997 decision of the New Brunswick Municipal Court that found McCague and Scozzare guilty of violating New Jersey Statute 2C:36-6, which forbids the possession, sale, or distribution of needles.

The Appellate Division of the Superior Court was rigid in its rejection of the pair's arguments. In the official court opinion, it refused to acknowledge the possible public health benefits of the needle exchange run by the Chai Project, a non-profit corporation founded by McCague and dedicated to preventing the spread of HIV in the intravenous drug-using population. John Mackin, Community Liaison for the Project, said that the organization was "incredibly disappointed and infuriated" by the court's decision. "Not only are they taking away the livelihood of Ms. McCague and Mr. Scozzare," he stated, "but there was no recognition that what those two did was for the public good. We're out here trying to save lives, and they wouldn't even consider that."

McCague and Scozzare's troubles with the court began 2 1/2 years ago (http://drcnet.org/rapid/1996/3-19-2.html), when an undercover officer from the Middlesex County Prosecutor's Office visited a needle exchange operated by the Chai Project. McCague and Scozzare were manning the exchange site -- a van parked on a New Brunswick street -- at the time of the undercover officer's visit. When the two obliged the man's request for a "kit", an investigator from the New Brunswick Police Department arrested them and confiscated the syringes in the van.

Following their trial and conviction the next year, McCague and Scozzare took their case to the Appellate Division of the New Jersey Superior Court with five basic arguments for overturning the verdict. The two claimed that 1) there is no harm or criminal intent in operating a bona fide needle exchange; 2) the doctrine of medical necessity, which exempts ordinarily illegal behavior if that behavior prevents an imminent medical danger, exonerates them from culpability; 3) the prohibition of needle exchange violates the exchange participants' fundamental right to life; 4) contradictory messages from the New Brunswick police regarding tolerance of the exchange interfered with due process (Police Chief Michael Beltranena was informed of the project in 1994 and made supportive comments about it that were published in a local newspaper); and 5) the de minimis statute, which protects citizens from absurd or trivial enforcement of the law, is applicable and should have prevented the case from going to trial originally.

Judge Donald G. Collester, Jr., delivered the opinion of the appellate court, handed down on July 23, specifically addressing each of the five arguments. Because the law forbidding needle distribution contains no language stating that the violation must include criminal intent, the court opinion claimed that a defense based on the absence of criminal intent was not valid. Judge Collester quoted a 1957 court opinion which stated, "When... one deliberately and intentionally does an act in violation of a positive law... he cannot be excused on the basis that his animating desire was essentially praiseworthy."

The court opinion also claimed that the argument of medical necessity was untenable. He stated that, because the specific purpose of New Jersey's needle legislation is to forbid the distribution of syringes for drug use, a needle exchange program is a pure law violation rather than something protected by the medical necessity clause. He also denied that the situation was one that would be covered by the medical necessity clause at all. "Defendants in this case," the opinion read, "were not confronted with a clear and imminent danger to themselves or others."

The court refuted the claim that denying clean needles violated a constitutional right to life by saying that such a right "does not encompass the use of prohibited substances at a reduced health risk." Following Police Chief Beltranena's testimony that his supportive comments had represented only his personal opinion and not that of his department, the court disregarded the complaint about due process. "Whatever [Chief Beltranena's] prior statements," stated the opinion, "... defendants were not immune to enforcement of the law."

The Appellate Court also sided with the original trial decision regarding the de minimis statute. Judge Collester quoted an opinion written on a similar case which stated, "There is nothing absurd about the application of N.J.S.A. 2C:36-6 to these defendants. Neither can their conduct be deemed trivial."

The opinion closed with a statement ominous for those hoping to find a loophole for needle exchange in New Jersey's strict anti-paraphernalia laws. "[T]he zero tolerance for the distribution of drugs and drug paraphernalia established by the Comprehensive Drug Reform Act," it read, "leaves no room for the creation of exceptions by judicial decree. Any change... is solely for legislative consideration." Given Governor Christine Todd Whitman's steadfast and vehement opposition to any mention of needle exchange, legislative change is not an easy assignment.

Currently, Diana McCague and Thomas Scozzare face the sentence imposed upon them by the municipal court: $705 each in fees and court costs, and the suspension of each person's driver's license for six months. Meanwhile, the futures of the Chai Project and of drug-related AIDS in New Jersey remain in doubt.

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Issue #52, 7/31/98 NJ NEP Workers' Conviction Upheld in Appeals Court | Oakland City Council Votes to Shield Local Cannabis Dispensary from Federal Prosecution Controversy Over Searches | DOJ Asks for Dismissal of Hemp Suit | Feds Indict Peter McWilliams, Todd McCormick and Others, Alleging Vast Conspiracy to Supply Medical Marijuana | Peaceful Prison Protest Earns Solitary Confinement | Action Request: The Tax Stamp Controversy | New Zealand Health Ministry: Pot Poses No Serious Risk | Newsbriefs | Link of the Week | A Campaign for Substance Awareness | Debating Points | Office of National Drug Control Policy Hard at Work | Editorial: The Pompano Beach Twelve

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