Maryland Inches Forward on Harm Reduction to Fight Overdoses
A bill reducing penalties for drug paraphernalia could boost efforts to promote safe drug use in the state, but even supporters say it doesn't go far enough.
Alex Burness, | March 7, 2023
Facing a brutal toll of overdose deaths, Maryland has in recent years put in place safe-supply services to promote healthier drug use. People can obtain syringes and needles through programs where those are distributed, but only if they register with a state-sanctioned provider.
The existence of these providers, authorized by a 2016 law, serves as a recognition by the state that promoting safer drug use can reduce one of the nation’s highest overdose mortality rates. Advocates for harm reduction have also warned lawmakers that this first step is far from adequate.
For one, the program has been embraced by leaders mostly in Maryland’s more urban counties, preserving barriers to safer drug use in rural areas. Even then, participants are only shielded from arrest and prosecution if they constantly carry a small card proving they’re registered in the program.
Otherwise, getting caught with a syringe or other tools to consume drugs in Maryland can lead to a felony charge and up to four years in prison; lesser paraphernalia charges can still carry hundreds of dollars in fines—not to mention collateral consequences associated with incarceration, court debt, and a criminal record.
“We are calling it a health crisis on the one hand, but on the other we are treating it as a criminal offense,” Marguerite E. Lanaux, lead public defender in Baltimore, told Bolts.
While over most of the past decade officials in Baltimore ruled out charging people for low-level drug offenses, the new state’s attorney rolled back those policies earlier this year, worrying local reformers about the future of prosecution in Maryland’s largest city.
Making people register with a government-sanctioned program to obtain safe supplies is no solution, said Harriet Smith, director of education and services at the Baltimore Harm Reduction Coalition, during her testimony at a statehouse hearing in February. “You can’t lose the card and you have to keep it on you at all times. You have to hope that the police officers in your area will trust that the code on the back of the card corresponds to you and not someone else,” Smith told state lawmakers. “I don’t know about y’all, but I lose business cards constantly—and I’m not experiencing homelessness.
She added, “Requiring people to keep a tiny piece of paper and find it during a tense interaction with law enforcement interactions is unreasonable and a deterrent to taking part in this public health program.”
Smith and other harm reduction advocates had gathered at the state house to support House Bill 173, a proposal to lessen criminal penalties for drug paraphernalia. The bill proposes to cut maximum penalties for possession of “controlled paraphernalia”—defined in the bill as syringes, needles, gelatin capsules, glassine envelopes and various chemical agents meant to dilute or enhance drugs—down from four years to one, and from a $25,000 fine to a ceiling of $1,000.
The bill also clarifies that such charges only apply to people manufacturing or selling drugs, as opposed to people who simply use them. However, Smith noted that the distinction is often blurry, since many who use drugs also sell them.
Sponsoring the paraphernalia bill is state Delegate David Moon, a Democrat and self-described civil libertarian who ran for office in part because he wanted to decriminalize drug use. Frustrated that in Maryland, and so much of the country, those working to treat substance use as a health issue and not a criminal one must settle for baby steps, Moon confesses that he believes his own bill doesn’t go far enough; he’d prefer total decriminalization of paraphernalia meant for drug use.
“I need to get the votes to pass it,” Moon told Bolts. “Unraveling the drug war, unfortunately, does not move at the pace I would necessarily move at in our state.”
Even in more liberal states, people like Moon often find it painfully difficult to sell people in power on the concept of harm reduction, a broad set of strategies meant to help people who use drugs stay alive and as healthy as possible. Advocates say they don’t seek to enable drug use but rather to build a society more conducive to safety and addiction recovery.
The approach is backed by piles of research from all over the world: studies consistently show that providing safe drug-use supplies and safe places to consume drugs saves lives and prevents disease. Conversely, research shows that criminalization is ineffective—and in fact counterproductive—as a strategy to cut down on drug use and on overdose deaths.
“This is a health crisis. This is not a criminal justice or criminal legal crisis we’re in. Other countries get it and we just don’t,” Nicole Hanson-Mundell, who works on re-entry for formerly incarcerated people as executive director of the Maryland organization Out For Justice, told Bolts. “It’s incredibly harmful for this country and this state to continue this practice of incarceration as the only tool to teach a lesson or help someone understand or hand down a consequence. It’s really lazy policy.”
Smith said that in her experience, it’s not enough to present lawmakers with evidence of harm reduction’s public-health benefits.
“The lessons we grow up with, what we’re inculcated with in terms of the myths of drug use, those are just as strong as studies,” she said.
Harm reduction has gained some traction in American halls of power and is even now endorsed by President Joe Biden, a leading architect of the country’s “war on drugs” while a U.S. senator. But groups working to make drug use safer remain chronically underfunded, and, as Moon has found, even the most modest legal reforms in this area can be heavy lifts.
Every state but Alaska criminalizes drug paraphernalia in some form. In a majority of U.S. states, life-saving fentanyl test strips remain illegal. (Maryland legalized them in 2018.)
Proposals to operate supervised drug-use sites have ignited political firestorms, even in some of the most progressive-leaning places in the country. Democratic California Governor Gavin Newsom last year vetoed a bill to allow supervised drug injection sites, and a 2019 effort to legalize those sites in Colorado flamed out right after launching and is only now being rebooted. Advocates in Maryland are hoping these sites will one day be legalized in the state, but their political path is far from clear.
Even the paraphernalia policy Moon himself calls inadequate has been stalling for years in Maryland. In 2021, a similar bill made it all the way to the desk of then-Governor Larry Hogan, a Republican who had signed the earlier bills to legalize test strips and to set up the syringe services, but Hogan vetoed it because, he said, it was “dangerous” and would facilitate drug use and sales.
“I’m on year nine doing this crap,” said Moon, who was first elected in 2014. “People die, and we fail to reduce intravenous disease transmission.”
Though the bill is not as ambitious as Moon would like, many regard it as an important step. HB173 is endorsed by a wide range of public health groups, among others, and Moon is confident it’ll pass the legislature, as it did last time. (The bill cleared the House on March 2 and now sits in the Senate.) Unlike Governor Hogan, new Maryland Governor Wes Moore, a Democrat, has been outspoken in support of alternatives to incarceration, and would be expected to sign the bill into law.
Lanaux, the public defender in Baltimore, said policymakers evaluating HB173 should consider the way paraphernalia possession is actually charged. It leaves no question as to whom this statute is meant to target, she said.
“At the end of the day, if paraphernalia is the charge, the person being charged is a user, not a dealer,” Lanaux told Bolts. “Dealers are charged with more serious offenses. So, this is not addressing drug dealing. It is punishing users.”
Lanaux and other public defenders told Bolts they believe that people in rural areas will continue to face disproportionate hurdles to safe use, even if Moon’s bill passes. In addition to the fact that most safe-supply providers are in the more populous counties of Maryland, the crisis of overdose deaths is a relatively fresh one in rural and suburban areas of the state; substance-use deaths have tripled, or more, in many places that a decade ago suffered only a handful of them every year.
Smith said HB173 plays an important part in reducing stigma around drug use, particularly in areas where the overdose crisis is relatively new.
“I think it will mean that people are much more likely to grab supplies for their loved ones,” she said.
Baltimore has long been home to a plurality of substance-use deaths in the state, but prosecutors lately haven’t been as hard on people dealing with addiction. The state’s attorney in Baltimore for the past eight years, Marilyn Mosby, had adopted a presumptive do-not-prosecute approach to low-level offenses such as paraphernalia possession.
“If you go to some of the outer counties, the ones further out are always going to continue to prosecute” for paraphernalia as long as the option remains, said Joshua Speert, acting district public defender for two counties west of Baltimore. “Other counties didn’t stop charging small theft or drug possession just because Baltimore did.”
Ivan Bates, the new lead prosecutor of Baltimore who ousted Mosby in the summer of 2022, has reversed her approach. He announced earlier this year that he was rescinding Mosby’s policies of declining to charge some low-level cases and would instead ramp up the prosecution of “quality-of-life offenses.”
Bates’s office did not respond to a request for comment on how it will approach paraphernalia cases going forward in light of its opposition to declination.
Moon and others wish the state would simply eliminate the option of prosecuting paraphernalia possession by people dealing with addiction issues, and thereby start to create some parity among counties’ respective approaches to drug use and treatment.
“If it can be charged,” Speert said, “it’s gonna be charged.”