Columns » Autumn Tolbert

Bad law

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Arkansas has some dumb laws. I know we've all probably laughed at the lists that include old-fashioned city ordinances like "no flirting on the street" or "no walking a cow in town on Sunday," but I'm talking about really dumb laws that are actually enforced, such as jailing people for keeping overdue library books too long (Arkansas Code Annotated § 13-2-803); charging folks with a crime for keeping certain prescribed medications in one of those days-of-the-week pill boxes or loose in a purse or pocket (Arkansas Code Annotated § 20-64-311); and the ridiculous way we criminalize addicts who try to mitigate the health risks to themselves and others by carrying their own needles. While I could go on and on about these laws and the fact that I've actually known multiple people charged with each of the listed offenses, for this space I'll stick to the needle law.

In 2017, the legislature corrected the statute that resulted in defendants facing five to 20 years for a plastic baggie while only facing often six years or less for the actual drugs inside the bag. But one thing that law did not change was that addicts who carry their own needle, or "rig," who have drugs with them or who are honest with the police and admit they are addicts, face a felony charge that can result in up to six years in prison and a $10,000 fine for each needle to be used to inject or ingest methamphetamine or cocaine. Ridiculous.

Ideally, every addict would have free access to excellent inpatient treatment immediately and could obtain leave from work and financial obligations so they could take advantage of that opportunity. But that isn't the reality of the world we live in here in Arkansas. Rehab is expensive and state-funded beds are often full. Many addicts aren't like the men and women in the movies, down and out on skid row. More often they are functioning addicts who have jobs, pay rent and have family obligations. Many are veterans. Leaving all of those responsibilities for 30 days is difficult.

Over the years, I've represented quite a few young men and women addicts who carry their own needles because they know that faced with temptation and the opportunity to use outside their home they will. Having their own needles with them reduces the risk of hepatitis C or HIV, both which can be transmitted through shared needles. This is good, right? Not according to Arkansas law. It's the same mentality that too many sex education programs adopt in refusing to hand out condoms and instead promoting abstinence. We should encourage behavior that seeks to limit health risks, but instead we criminalize it because we can't be seen as soft on crime. We want people to get what they deserve, right? Do the crime, do the time? Even if it is sickness or death? Before you are quick to agree with that sentiment, you may want to look around at your family. Chances are, you have a young addict as your kin.

Listen, I've heard the arguments from police about dirty needles and the risk they face being poked when searching. I get it, but to that I say they should search fewer cars and people. Can we teach our children about the Fourth Amendment the same way many of us teach them about the First? Or the Second? I've refused a search request from a police officer, but even as a seasoned criminal defense attorney, it wasn't easy. I had to say no a couple of times before finally telling him that I was an attorney and he was not searching my car no matter how many times he asked. Besides, most of the clients I've represented on needle charges had them stored in a container, or in the glove box, or in their purse. They were flushed out of their hiding places after a traffic stop for a broken tail light, a cracked windshield or maybe the old standby, the improper use of a turn signal (an officer in Northwest Arkansas once told me that if he followed someone long enough, they'd make a mistake with their blinker). Also, if more communities and churches and police departments supported properly run needle exchanges, we would have fewer dirty needles on the street.

Now if you want to base your laws on studies and practicality, then decriminalizing needles makes a lot of sense, as it is a way to cut down on communicable diseases and save taxpayer dollars. If you want your laws based on Christianity, then decriminalizing needles makes a lot of sense, as it is an act of mercy. It should be our shared hope that someday these addicts will stop using. It should be our shared hope they are healthy when that day comes instead of being ill with a disease that could have been prevented with a clean needle. However, as long as Arkansas continues to put more stock in punishment over prevention, then I figure we will keep on jailing addicts for trying to make a good decision in a bad situation.

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