Early Warning on Heroin and Syringe Exchange?

By Scott Burris

It’s hard to believe that after all these years, all the evidence, and all the reductions in HIV among injection drug users, we still only have 15 states that explicitly authorize syringe exchange programs (SEPs). (See LawAtlas for an interactive map.)  CDC estimates we still have around 4,000 new cases a year by injection, so that’s reason enough to keep the SEPs we have open and start new ones where drug users are not now being reached.

Now another factor could be in play. Harm reductionists are reporting an upsurge in SEP users in places where efforts to crack down on illicit pill use have started to bite.  A lot of these users are reportedly young, under 25, and at serious risk of getting HIV or HCV.

So far we only have anecdotal reports. It could be coincidence, or overblown.  But we should be worried: there is nothing strange about pharmaceutical opioid users moving on to heroin when pills get scarce. It would be prudent as a matter of health policy to make sure that syringe access services are available in every community where opioid users are injecting, and to make sure these programs have surge capacity.  That’s prudent policy: here on planet earth we are cutting health budgets and, I fear, ignoring the effect of pill control on heroin use.

All this reminds us how important it is to be closely evaluating the consequences of new laws and policies that are intended to reduce illicit pill use.  Their success in reducing consumption is only part of the picture: the ultimate issue of concern is that we protect the health of people who are using until they can reach a safer place in their lives.

Good news and bad news about gun laws, mental illness and violence — Part 3

This is Part 3 in a three-part series on gun laws, mental illness and violence in the United States. Read Part 1 and Part 2.

By Jeffrey Swanson, PhD

So what can the law do about gun violence?  The US Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 3025 (2010) made it pretty clear that legal solutions to our nation’s firearm violence problem do not include “getting rid of the guns,” but do include preventing dangerous people from getting their hands on them.

So, the difficult question of whether our nation’s gun laws are capturing the right “dangerous people” remains crucial, and it invites a prior question: Whose criteria are we talking about?

Variations in law and policy among the states and between federal and state statutes mean that the same person with a severe mental illness might be disqualified from buying a gun in one state but not in another. Functional incapacity stemming from a psychiatric disorder may or may not lead to firearm disqualification, depending on how various applicable laws and policies define it in different contexts.

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Good news and bad news about gun laws, mental illness and violence — Part 2

This is Part 2 in a three-part series on gun laws, mental illness and violence in the United States. Read Part 1.

By Jeffrey Swanson, PhD

It is hard to find good news in our nation’s gun violence statistics, but here’s this: If somebody shoots you today, your chances of survival are about 83 percent — up from 78 percent just ten years ago.  The improving survival rate for gunshot victims has helped nudge the national homicide rate down by about half a percentage point since 2001. Of course, the cloud behind that silver lining is that more people are actually getting shot. The CDC recorded almost 600,000 injuries caused by assault with a firearm in the past decade, as the combined rate of fatal and nonfatal gun assault injuries rose from about 18 to about 21 per hundred thousand.

Now for the bad news: When the shooter and the victim happen to be the same person, the odds of survival and death are reversed: 8 out of 10 die. Suicide attempts with a gun almost always succeed, because they are almost always aimed at the brain at close range, and there is seldom anyone around to call 911.

For those who “get lucky,” surviving a gunshot to the head can be a pyrrhic victory.  We all cheered Gabrielle Giffords’ courageous walk across the stage at the Democratic National Convention, but let’s face it: Her physical appearance was as much a reminder of what she has lost as it was a testimony to the miracles that timely neurosurgery can perform. Most survivors of gunshot injuries — whether self- or other-inflicted — don’t look like much like Gabby Giffords and they tend to have fewer supportive friends. They are often disadvantaged young people who struggle to recover in places where hope runs thin. Could better gun laws, better enforced, prevent their plight?  Perhaps they could, but only as a small piece of complex sociological puzzle.

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Cited by the Supreme Court: Oh, the Indignity and Humiliation of It!

By Scott Burris

A law professor is usually thrilled to have an article cited by the Supreme Court.  An empirical researcher will, likewise, be pleased that evidence he or she helped create shapes a decision of the highest court of the land.  But maybe not always.

Today I learned that the Supreme Court cited a study of mine in a major opinion. OK, it was the Supreme Court of Canada, but still.  The case, which deals with the criminalization of HIV, is pretty interesting and important.  The unimportant part has to do with the impact of my work on the decision:

 Some interveners challenge the use of the criminal law in the case of HIV on the ground that it may deter people from seeking treatment or disclosing their condition, thereby increasing the health risk to the carrier and those he has sex with.  On the record before us, I cannot accept this argument.  The only “evidence” was studies presented by interveners suggesting that criminalization “probably” acts as a deterrent to HIV testing: see e.g. M.A. Wainberg, “Criminalizing HIV transmission may be a mistake” (2009), 180 C.M.A.J. 688.  Other studies suggest little difference in reporting rates in states that criminalized and did not criminalize behaviour:  S. Burris, et al., “Do Criminal Laws Influence HIV Risk Behavior?  An Empirical Trial” (2007), 39 Ariz. St. L.J. 467, at p. 501.  The conclusions in these studies are tentative, and the studies were not placed in evidence and not tested by cross-examination.  They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain.

The Court is right, but maybe it could have gone without saying — or citing?

Good News and Bad News About Gun Laws, Mental Illness and Violence — Part 1

This is Part 1 in a three-part series on gun laws, mental illness and violence in the United States.

by Jeffrey Swanson, PhD

Federal and state efforts to restrict firearms access to potentially dangerous people with mental illness have focused in recent years on extending the reach of states’ reporting to the National Instant Criminal Background Check System (NICS). In August, in response to the Colorado movie theater shooting, Mayors Against Illegal Guns released a report tallying the number of mental health records each state has submitted to the NICS and ranking each state’s reporting performance. Nearly five years after Congress enacted the NICS Improvement Act, only about half the states have submitted more than a negligible proportion of their mental health records.

The Mayors’ report mentions the “mentally unstable man” who shot President Reagan and his press secretary, Jim Brady, for whom the Brady Handgun Violence Prevention Act was named. It recalls the deadly rampages at Virginia Tech in 2007 and in Tucson in 2011. It includes an interactive map titled Fatal Gaps: Can dangerous people buy guns in your state?  The not-so-implicit message here is that states’ spotty reporting of mental health records to the background check database is partly to blame for the senseless deaths in mass shootings.

It is easy to say there’s a problem with our gun laws or their enforcement by pointing to isolated cases where mentally disturbed mass shooters were able legally to buy guns. That is probably true. Unfortunately, there is no evidence yet available to suggest that filling the NICS with more records of people with gun-disqualifying mental health histories would have any measurable impact in reducing firearm violence in the population.

A study underway at Duke University, funded by the National Science Foundation and the Robert Wood Johnson Foundation’s Public Health Law Research Program, may soon provide some answers to that question. Whatever the study finds, though, the results will hinge on whether two assumptions underlying our gun prohibitions turn out to be true:  that there is a strong causal relationship between serious mental illness and gun violence; and that our extant gun-disqualifying legal criteria can accurately identify the subgroup of mentally ill individuals at risk.

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A Question of Insurance Fraud?

By Scott Burris

No, I mean it: this is a question to Bill of Health readers who know about the law on this topic.

This week, a colleague handed me a palm card she’d been given at a subway station here in Philadelphia. “Cash for diabetic test strips” it read.  Comparing prices on the company’s website with prices on Wal-Mart’s pharmacy page, it looked like the test-strip buyer pays about 20 cents on the dollar for “pre-owned” test strips.

The palm card and the website both stipulate that the strips be unexpired and in their original, unopened, factory-sealed boxes.

So, one asks, are there enough people out there who buy more diabetic test strips than they need, and are willing to take an 80% loss to ensure they are used by someone else? That seems unlikely.

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Needing a Lawyer on the Team

by Wendy Parmet

It’s easy to see the value of including scientists in public health law research teams; most public health lawyers lack the training to conduct rigorous empirical research.  It may be harder to see the need for adding lawyers to the research team, but their presence is no less critical. Sometimes scientists have as much trouble understanding the law as the lawyers have understanding the science.

The value of involving lawyers in public health law research became clear to me recently as I was working on a project relating to health policies affecting immigrants. One question I wanted to know was how the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) affected immigrants’ access to health insurance in the United States.  So I decided to review the scientific literature. The results were dismaying.

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Infrastructural Law: The Lesser-Known Cousin

by Jennifer Ibrahim, PhD, MPH

An article by Julia Costich, MPA, JD, PhD, and Dana Patton, PhD, in the October 2012 edition of the American Journal of Public Health reveals the tip of the iceberg on a highly discussed and yet insufficiently researched topic: the legal infrastructure. While the team reports a significant impact of the legal infrastructure of local health departments on population health outcomes, the paper also raises questions regarding the role of law more generally in the functioning of health departments.

While we “see” law all the time in action, we rarely “see” law as an important factor influencing the way health agencies operate. Sure, we understand law as a way to drive the behavior of individuals by regulating sugar-sweetened beverages or prohibiting texting while driving or preventing smoking in indoor spaces — this is called interventional law — but there is a lesser-known cousin, infrastructural law, that desperately needs our attention.

While public health officials, policy-makers, advocates and academics regularly discuss the funding and organization of health departments at both the state and local levels, they less often step back to think about what is driving the process — law. As states are facing significant fiscal crisis, funds are a major concern, but it is important to remember that appropriations are made through law. Additionally, in recent years, during natural disasters such as hurricanes in the south and major floods in New England, there were questions in the news about which agencies should be doing what and when. The authority for a health department to act and/or to act in concert with another agency is derived from law.

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“Overcriminalization” and HIV

By Scott Burris

The concept of “overcriminalization” is gaining traction across the political spectrum.

The Heritage Foundation, which has a website devoted to the phenomenon, defines it as “the trend in America – and particularly in Congress – to use the criminal law to ‘solve’ every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives.”   Others, like Michelle Alexander, drop the Ayn Rand tones and focus on mass incarceration as racialized social control. (My colleagues and I once calculated that African American males can expect to spend on average 3.09 years in prison or jail over their lifetime.) Douglas Husak argues that we need a theory of criminalization to help us get less of it.

One of the best examples of criminal law rushing in where angels fear to tread is the criminalization of HIV exposure. From the start, there was reason to fear that these laws would not reduce HIV transmission, and might exacerbate stigma and social hostility towards people with HIV. There was concern they might be used selectively, or just randomly.

This summer, the UN’s Global Commission on HIV and the Law advised states to repeal or abstain from enacting such laws.  The Commission drew on a set of background papers that reviewed the extent of the phenomenon globally and addressed the argument that these laws are justified by moral values even if they are ineffective.

In this country, the President’s National AIDS Strategy suggested states reconsider these laws, but no laws have been repealed and prosecutions continue.  Fortunately, so does research, and it continues to show that these laws are not promoting public health. This week, the American Journal of Public Health published a new PHLR-funded study by Carol Galletley. This video sums up her findings:

Law Professors Organize

By Scott Burris

Over the past fifty years, law has become an important tool for promoting public health – and a site of dramatic social and political contests.  Public health law has been an integral part of “great achievements” in public health that have saved, or enhanced, millions of lives. Increasingly, however, the public health interventions – and the legal theories and values they stand on – have been under steady, sustained and systematic attack.   Further progress is imperiled, and past gains may be rolled back.

Over the Summer, Wendy Parmet and Leo Beletsky of Northeastern University convened a one-day workshop in Boston, called Advancing Public Health through the Law: The Role of Legal Academics.  A lot of smart people in and out of legal academia participated, and it did not take long to get a consensus  that legal academics, alone and in partnership with practitioners in law and public health, need to be more effective and better coordinated in our work.  Part of this has to do with better understanding the forces lined up against effective health laws, and there was enthusiasm for the idea of moving forward on a coordinated strategy to increase our influence and effectiveness as public health law scholars and advocates.

It is vital to be strategic in the face of well-funded and well-organized political efforts to turn back interventions that can save lives. But our long-term success also requires some looking inward.  As people working in public health, we have to ask whether our division into unconnected silos – er, I mean, pillars of excellence – is sustainable. Are tobacco advocates, and harm reductionists, and obesity fighters cooperating, or competing?  As a broad movement, are we effectively focusing our limited resources, or allowing ourselves to be divided and conquered?  Are we right to assume that the public trusts us and accepts our mission as legitimate?  Is our language, our framing, getting tired?

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