LET NO GOOD DEED GO UNPUNISHED
by Dawn Day

Trying to save lives and slow the spread of HIV by giving out clean needles
is a crime in New Jersey punishable by a fine and a sixmonth driver's
license suspension. That was the decision handed down Nov. 7 in New
Brunswick by Judge Joyce E. Munkacsi of the Superior Court Law Division.

The defendants were Diana McCague and Thomas Scozzare, who had been
arrested one cold night in April of 1996 while doing their lifesaving work
in New Brunswick. They were volunteers with the Chai Harm Reduction
Project, courageously following their consciences, while much of the rest
of New Jersey was ignoring the spread of the deadly AIDS epidemic.

Twenty thousand New Jersey residents age 13 and over have injectionrelated
AIDS or have already died from it. New Jersey has the third highest
injectionrelated AIDS rate in the nation. Half of all AIDS cases in New
Jersey are injectionrelated.

The defendants, Diana and Thomas, had no criminal intent. They were unpaid
volunteers trying to save lives by slowing the spread of HIV.

Our best AIDS research supports their approach. Careful scientific studies
have shown that clean needle programs do slow the spread of HIV and do not
increase drug use. Since 1991, the federal government has funded six
studies on injecting drug use and the spread of AIDS and all six studies
have concluded that cleanneedle programs are an effective and necessary
tool against the spread of AIDS. The Medical Society of New Jersey, the
New Jersey Public Health Association and their national counterparts all
actively support clean needle programs as a way of slowing the spread of
HIV. The New Jersey Governor's Advisory Council on AIDS and President
Clinton's Advisory Council on AIDS take the same position.

An important aspect of the legal argument for the defense is that when
there is a conflict in the law, lifeanddeath public health concerns are
paramount. How could it be otherwise?

The argument that clean needle programs are a public health necessity has
made clean needle programs possible in Philadelphia, Cleveland, Los
Angeles, San Francisco and several other cities and counties.

Appeal of the conviction to a higher court is planned. If appeal is
successful at the Supreme Court level, the Chai clean needle case will have
made it possible to set up clean needle programs in all areas of New Jersey
where these programs are needed.

The massive disadvantage of the judgment against the defendants thus far is
that the threat of arrest and punishment are surely deterring others from
beginning this important lifesaving work now while the need is so great.

Since the good intentions of the defendants have never been questioned,
even by the prosecution, the Chai supporters in the courtroom last Friday
were surprised and dismayed when Judge Munkacsi not only declared the
defendants guilty, but chose to impose the sentence immediately.

The lawyers for the defense, Alan Silber and Ronald J. Busch, working pro
bono, had already declared their intention to appeal. Judge Munkacsi gave
Silber and Busch only one week to attempt to secure a stay of the sentence
from a higher court.

Judge Munkacsi's fine of $705 per defendant does not seem that harsh at
first glance. But Diana and Thomas, while they are individuals of great
personal courage, are people with modest incomes. For each of them, $705
is a substantial sum.

In Diana's case, she earns her livelihood as a taxi driver, so that loss of
her driver's license for six months means the loss of her job for six
months; longer if her employer is unwilling to hold her job open for her
until she is able to drive again. And if the defendants do win on appeal
Diana will already have suffered the income loss and disruption to her life
and will have no way of regaining it. Continuing his normal life without
being able to drive will not be easy for Thomas either.

So what should the rest of us be doing, as this case slowly makes its way
through the courts? We need to support the two bills now pending in the New
Jersey legislature: one that would set up a model clean needle program with
public funds and another that would make it possible to buy syringes
without a prescription.

Now that Government Whitman is no longer worrying about reelection, we
need to persuade her of the wisdom of making it possible to save lives in
New Jersey. In fact, favoring clean needle programs is not that
politically risky. A Harris poll released this month showed once more that
the majority of Americans favor clean needle programs to slow the spread of
HIV.

The AIDS epidemic is not only spreading pain, suffering, and death, it is
also very costly. As officials responsible for our state budget, Governor
Whitman and our legislators need to look at those costs. For a person with
HIV, drug treatment with the new combination drugs can cost between $10,000
and $15,000 a year. The clean needles needed to avoid getting infected
with HIV cost less than $1000 a year.

In both New York and Philadelphia, effective clean needle programs,
supported by public funds, are slowing the spread of HIV among persons who
inject drugs and their wives and husbands and newborn children. New Jersey
must take action also.

The role of government is to protect the lives of its citizens, not create
the circumstances that will cause their death. Every day in New Jersey
another four individuals are infected with drugrelated HIV. We cannot let
this continue.