Wake Forest Law Review
7Oct

The Overregulation of Syringe Service Programs: How West Virginia Legislators Are Exacerbating the Opioid Crisis on the Battleground of the Epidemic

Categories: Current Issues Blog
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By Emily Wilmink

While the COVID-19 pandemic has consumed the field of public health since its onset in 2020, substance use disorder and the opioid crisis have continually plagued the United States for many years.  Substance use disorder is a disease that “leads to an inability to control the use of a legal or illegal drug or medication.”[1]  Since 1999, nearly 841,000 people have died from drug overdose, and as of 2019, 72.9% were opioid-related drug overdose deaths.[2]  

Within this national health crisis, West Virginia leads the country in opioid-involved overdose deaths, with a rate of 42.4 deaths per 100,000 people in 2018.[3]  Additionally, compared to the average national rate of 51.4 prescriptions per 100 people, West Virginia providers wrote 69.3 opioid prescriptions per 100 people, once again ranking the state as the highest rate in the country for 2018.[4]  Researchers have cited “sociocultural factors, a depressed economy, lack of education, and a high rate of prescribing and dispensing of prescription opioids” as various reasons for the ongoing opioid epidemic in West Virginia.[5]  To combat the opioid crisis in West Virginia, state legislators recently passed Senate Bill 334[6] to regulate Syringe Service Programs.[7] However, this bill will likely exacerbate the epidemic in the state.

In general, syringe service programs provide sterile injection equipment to reduce the spread of needle transmitted diseases, such as hepatitis C (“HCV”) and human immunodeficiency virus (“HIV”), amongst those who engage in improper injection techniques.[8]  Syringe service programs also provide participants access to other resources, such as “vaccination, testing, linkage to infectious disease care and substance use treatment, and access to and disposal of syringes and injection equipment.”[9]  These programs have successfully prevented the spread of infection throughout the country, leading to an estimated 50% reduction in HIV and HCV, and a two-thirds transmission reduction when combined with medication-assisted treatment.[10]

Regardless of such promising evidence about transmission reduction, West Virginia legislators proceeded to implement more restrictions on the state’s syringe service programs,[11] which will likely exacerbate the opioid epidemic in the state.  Specifically, Senate Bill 334 requires participants to provide West Virginia identification before using any of the services from these programs in the state.[12]  Identification requirements not only create a barrier between the in-state participants and providers, but they also create a barrier between out-of-state participants who also seek the help of the program providers.[13]  Senate Bill 334 also requires existing syringe service providers to offer a “full array of harm reduction services,”—including “wellness checks, wound treatment from needle sticks, screening from communicable diseases, vaccination ability and counseling”—and if they do not offer the full range of these services, the providers are required to shut down their exchange service program altogether.[14]  Lastly, the bill requires that syringe service programs must receive a license from the Office of Health Facility Licensure and Certification in West Virginia before they can provide assistance to those participants with substance use disorder.[15]  All of these restrictions discourage participation in the programs, threaten to cut off avenues through which participants could access clean injection equipment, and further stymie the programs’ ability to timely respond to the participants’ needs.  As a result, Senate Bill 334 will likely foster the improper exchange of syringes, exacerbate the spread of infectious diseases like HIV or HCV, and lead to more opioid-involved deaths in a state that is already deeply wounded from such realities.

The bill’s restrictions on syringe service programs not only present the aforementioned public health concerns, but the restrictions also present various legal concerns that must be addressed in turn.  In Milan Puskar Health Right v. Crouch,[16] program providers claimed Senate Bill 334 violated their procedural due process rights, equal protection rights, and violated the constitution of West Virginia.[17]  The providers also raised policy concerns, arguing that the bill would “result in fewer people accessing health services and fewer opportunities to prevent the spread of diseases including HIV, endocarditis, and Hepatitis C.”[18]  However, the court determined the providers could only succeed on their equal protection claim.[19]  

Regarding the equal protection claim, the providers argued that Senate Bill 334 was discriminatory in nature because it required existing providers to “cease and desist all operations unless it offers a ‘full array of harm reduction services,’”[20] while the bill exempted “new providers from ‘compliance with the provisions’ . . . until January 1, 2022” [21] and did not mention new providers having “harm reduction services or a license.”[22]  The court held that the bill may be read to discriminate between new and existing providers.”[23]  Because the state legislators did not offer a “rational basis” to justify such discrimination, the court concluded that the bill might violate the equal protection rights of the existing providers.[24]  The potential discrimination between new and existing providers exemplifies how the bill overregulates syringe service programs in West Virginia.  The different standards that new and existing providers must meet creates confusion within the functionality of such programs and may undermine the mission to prevent the spread of HIV or HCV by providing resources to those who suffer from substance use disorder.  Therefore, Milan Puskar Health Right v. Crouch highlights another reason why Senate Bill 334 will likely worsen the opioid crisis in West Virginia.

Ultimately, the overregulation of syringe service programs in West Virginia establishes divergent standards that different programs must meet to provide services to its participants.  Without a uniform approach to follow, these programs may become more chaotic and unable to effectively provide services to participants with substance use disorder.  Therefore, Senate Bill 334 will likely exacerbate opioid-involved deaths and simultaneously increase the spread of opioid related infectious diseases, such as HIV or HCV.  As the battleground for the opioid crisis, West Virginia must do better to implement effective solutions to eradicate the epidemic that has plagued the nation for far too many years.

[1] Drug Addiction (Substance Use Disorder), Mayo Clinic (Oct. 26, 2017), https://www.mayoclinic.org/diseases-conditions/drug-addiction/symptoms-causes/syc-20365112.

[2] Drug Overdose Deaths, Ctrs. for Disease Control & Prevention (Mar. 3, 2021), https://www.cdc.gov/drugoverdose/deaths/index.html.

[3] Opioid Summaries by State, Nat’l Inst. on Drug Abuse (Apr. 16, 2020), https://www.drugabuse.gov/drug-topics/opioids/opioid-summaries-by-state.

[4] Id.

[5] Rachel Merino et al., The Opioid Epidemic in West Virginia, 38 The Health Care Manager 187, 187 (2019).

[6] An Act Establishing License Application Process for Needle Exchange Programs, SB 334, 2021 Reg. Sess. (Apr. 10, 2021), https://www.wvlegislature.gov/Bill_Text_HTML/2021_SESSIONS/RS/signed_bills/senate/SB334%20SUB1%20ENR_signed.pdf.

[7] Brad McElhinny, Legislature Passes a Syringe Exchange Bill with More Restrictions, Including ID Requirement, MetroNews: The Voice of West Virginia (Apr. 10, 2021, 10:23 PM), https://wvmetronews.com/2021/04/10/senate-passes-a-syringe-exchange-bill-with-more-restrictions-including-id-requirement/.

[8] Syringe Services Programs (SSPs), Ctrs. for Disease Control and Prevention, https://www.cdc.gov/ssp/syringe-services-programs-factsheet.html (May 23, 2019).

[9] Id.

[10] Id.

[11] Brad McElhinny, Justice Signs Syringe Exchange Bill, Despite Health Leaders’ Push for a Veto, MetroNews: The Voice of West Virginia (Apr. 15, 2021, 5:29 PM), https://wvmetronews.com/2021/04/15/justice-signs-syringe-exchange-bill-despite-health-leaders-push-for-a-veto/.

[12] An Act Establishing License Application Process for Needle Exchange Programs, SB 334, 2021 Reg. Sess. (Apr. 10, 2021), https://www.wvlegislature.gov/Bill_Text_HTML/2021_SESSIONS/RS/signed_bills/senate/SB334%20SUB1%20ENR_signed.pdf.

[13] Letter from Loree Stark, Legal Director, American Civil Liberties Union of West Virginia, to Governor Jim Justice (Apr. 14, 2021), https://www.acluwv.org/sites/default/files/field_documents/aclu-wv_msj_letter_re_334_constitutional_concerns.pdf.

[14] McElhinny, supra note 7.

[15] W. Va. Code § 16-64-2 (2021).

[16] No. 3:21-0370, 2021 U.S. Dist. LEXIS 132069 (S.D. W. Va. July 15, 2021).

[17] Id. at *4.

[18] Id. at *4–5.

[19] Id. at *7.

[20] Id. at *17.

[21] Id. (quoting W. Va. Code § 16-64-10 (2021)).

[22] Id. at *18.

[23] Id. at *18.

[24] Id. at *18–19.

Post image by B.A.D. on Flickr

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20Feb

Fourth Circuit Affirms Sentencing Enhancements for “Relevant Conduct”

Categories: 4th Cir. Blog Criminal Cases
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By John Van Swearingen

On January 24, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Agyekum. In the United States District Court for the Southern District of West Virginia, Kofi Agyekum (“Appellant”) plead guilty to two counts of structuring transactions, forfeiting over $2,300,000 in cash assets. Appellant challenged his sentence on two grounds: first, that sentencing enhancements based on involvement in a drug conspiracy were not “relevant conduct” with respect to his structuring convictions, and second, that sentencing enhancements based on his role as a pharmacist did not constitute “relevant conduct” with respect to the same convictions. Additionally, Appellant contended that the district court did not adequately ensure that he understood the procedural protections waived in his plea agreement. The Fourth Circuit affirmed Appellant’s sentence, holding that the Appellant’s involvement in a drug conspiracy and role as a pharmacist were within the scope of “relevant conduct.” Additionally, Appellant adequately understood the waivers of rights involved with his plea agreement.

Facts and Procedural History

In October, 2012, Appellant and his wife opened A+ Care Pharmacy in Barboursville, West Virginia. Appellant had total control over the operations of the business. Appellant’s wife was the licensed pharmacist, but she operated solely under Appellant’s control.

A confidential informant (“CI”) involved in a 2014 oxycodone trafficking ring investigation notified federal investigators that he had been filling prescriptions at A+ Care Pharmacy since November 2012. The CI made several controlled buys under supervision of the investigating agents in which the Appellant charged the CI an abnormally high price to fill out-of-state oxycodone prescriptions, doctored receipts to avoid leaving a paper trail, and discussed permitting the purchase of oxycodone without a prescription.

The investigation uncovered that Appellant was regularly filling ten to eighteen prescriptions a week for an organized drug ring headquartered in Kentucky with operations throughout the southeast United States. In spring of 2014, Appellant began selling oxycodone to the head of the organization without a prescription for around $15 per pill, and on one occasion, accepted a vehicle as payment. A+ Care Pharmacy was the third largest distributor of oxycodone in the state, and the drug comprised 70% of its business.

During this time, Appellant opened numerous bank accounts with several different financial institutions around town. Appellant used multiple accounts to avoid making cash deposits of $10,000 or more, which are subject to federal reporting. From March to August, 2014, Appellant deposited almost $470,000 in accounts at five banks, never depositing more than $10,000 into a single account on a single day.

In August, 2014, investigating agents executed a search warrant at A+ Care Pharmacy, seizing 51,000 pills of oxycodone, $68,000 in cash hidden in the pharmacy’s office, over $440,000 in cash stored in two safe deposit boxes, and 20 bank accounts owned by Appellant. Over $2,300,000 in assets were seized. Appellant was arrested.

Appellant was indicted with conspiracy to illegitimately distribute oxycodone, aiding and abetting the illegitimate distribution of oxycodone, forty counts of money laundering, and eleven counts of structuring cash transactions to avoid reporting.

After six months in jail, Appellant agreed to plead guilty to two counts of structuring transactions, forfeit over $2,300,000 in assets, and waive the procedural rights to any future challenges to the forfeiture. Appellant initially refused the plea agreement because of the forfeiture term, but eventually acknowledged to the district court that he understood the forfeiture term and accompanying waiver and accepted the plea deal.

Appellant’s sentencing report included multiple enhancements, including two to which Appellant objected: (1) enhancement based on Appellant’s role as a “leader” or “manager” within the criminal drug conspiracy pursuant to U.S.S.G. § 3B1.1(c), and (2) enhancement based on Appellant’s abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. Appellant’s objections centered on the assertion that neither the Appellant’s participation in the drug conspiracy nor his role managing a pharmacy constituted “relevant conduct” with respect to his transaction structuring convictions as outlined in U.S.S.G. § 1B1.3. Additionally, Appellant claims that the district court did not properly ensure that he understood the waiver of procedural protections involved in his plea deal.

A Leadership Position In A Conspiracy Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Conspiracy

Appellant’s argument centers on the belief that enhancements for “relevant conduct” are limited strictly to the behaviors associated with the convictions. Here, those convictions were for structuring bank transactions. Therefore, Appellant argues, the only applicable enhancements must arise from his conduct as a bank customer.

U.S.S.G. § 1B1.3(a) defines “relevant conduct” in the scope of sentencing more broadly than the conduct considered for criminal liability. See United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014). “Relevant conduct,” therefore, can include preparatory conduct, conduct to avoid detection, and other conduct related to the commission of the charged offense.

But for the illicit nature of Appellant’s participation in a drug trafficking conspiracy, Appellant would not have been receiving large cash payments on a regular basis. Additionally, Appellant only structured the transactions to avoid the reporting requirements that would have alerted federal authorities to the cash-intensive nature of his dealings. Therefore, the court noted, Appellant’s participation in the drug conspiracy was “relevant conduct” for the purpose of sentence enhancement. Thus, if Appellant was in a leadership position in the conspiracy, the sentence enhancement was appropriate.

Appellant was in sole operational control of A+ Care Pharmacy, and directed the pharmacy’s operations regarding the filling of out-of-state prescriptions, mandated the acceptance of cash only for oxycodone, set the price for oxycodone transactions based on risk, and advised members of the conspiracy to also acquire prescriptions for non-narcotic drugs in order to reduce suspicion. The district court, therefore, was proper in determining Appellant had a leadership role in the drug conspiracy, and the sentence enhancement was therefore appropriate.

Abuse Of The Position Of Pharmacy Manager Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Position

Appellant also challenges the sentence enhancement based on the abuse of his position managing a pharmacy – a position of public trust – because his role was not “relevant conduct” with respect to the structured transactions.

Having determined that the pharmaceutical operations were within the scope of “relevant conduct,” the court then considered whether Appellant was abusing a position of public trust. The purpose of the enhancement is to punish those “who take advantage of a position that provides them with the freedom to commit a difficult-to-detect wrong.” United States v. Brack, 651 F.3d 388, 393 (4th Cir. 2011). Additionally, the defendant must have some sort of relationship to his victim that involves trust. United States v. Caplinger, 339 F.3d 226, 236 (4th Cir. 2003).

Appellant exploited his position by purchasing oxycodone from a legal distributor at a level that exceeded his actual lawful uses. Additionally, Appellant took advantage of his position as both a husband and a manager to force his wife to fill prescriptions for a drug trafficking ring. Appellant doctored records to conceal his activities from the West Virginia Board of Pharmacy. Thus, Appellant was using his unique position managing a pharmacy in order to facilitate the drug trafficking operations – “relevant conduct” underlying the structured transactions.

Appellant Fully Understood His Waiver Of Rights With Respect To Forfeiture

Appellant contended that the district court failed to ensure that he fully understood the rights he waived with respect to his asset forfeiture. However, the record on appeal included several exchanges in open court wherein Appellant (1) claimed multiple times to understand the terms of the plea agreement, (2) contested the plea agreement because he did not agree to the scope of the forfeiture term, and (3) subsequently agreed to the forfeiture term and plea agreement after discussing his situation with his lawyer. Therefore, Appellant’s assertion was wholly unsupported by the record.

Disposition

The Fourth Circuit affirmed both challenged sentencing enhancements and denied Appellant’s challenge to his waiver of rights regarding the forfeiture term of the plea agreement.

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23Feb

Fourth Circuit Vacates Decision Dismissing Defendant’s Motion to Suppress Evidence Unlawfully Obtained in Violation of the Fourth Amendment

Categories: 4th Cir. Blog Criminal Cases
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By Taylor Ey

Anonymous Tip to Police, Pretextual Traffic Stop, and Subsequent Frisk

Today, the Fourth Circuit issued its published in the criminal case of United States v. Robinson, deciding 2-1, the Court reversed and vacated the decision of District Court of the Northern District of West Virginia, holding that Defendant Robinson’s motion to suppress evidence should have been granted.  In this case, the West Virginia police department received an anonymous tip.  The tipper reported that the tipper saw a man load a gun in a 7-Eleven parking lot, the man subsequently concealed the gun, and then left the parking lot in a car.  Only a few minutes passed when the police stopped a car matching the tipper’s description.  The police stopped the car because the driver and passenger’s failure to wear a seatbelt in violation of West Virginia traffic law.  Defendant Robinson was the passenger in the car.  He complied with the police requests to exit the car.  Then an officer frisked Defendant Robinson and found a firearm in one of Defendant Robinson’s pockets.  Defendant Robinson was indicted by a grand jury on one count of being a felon in possession of a firearm and ammunition.  Defendant Robinson sought to exclude the evidence recovered by the officer during the stop and frisk.  The district court referred Defendant’s motion to a magistrate.  The magistrate recommended that the evidence did not indicate that the officer had reasonable suspicion that Defendant was dangerous.  However, the district court did not grant his motion to suppress.  At issue in this case is whether the officer complied with the Fourth Amendment when the officer conducted the stop and frisk.

Under Terry v. Ohio, Whether the Officer Had Reasonable Suspicion that Defendant Robinson Was Both Armed and Dangerous when the Officer Conducted the Stop and Frisk

Under Terry v. Ohio, the test for whether a stop and frisk is lawful is to determine if the officer had reasonable suspicion that the suspect was both armed and dangerous at the time of the stop and frisk.  This question is two-fold: the officer has to have reasonable suspicion that the suspect is armed and that the suspect is dangerous.  In this case, the question of whether the police had reasonable suspicion that Defendant Robinson was armed at the time of the traffic stop and frisk was not at issue due to the anonymous tip.  However, because this case arose in West Virginia, and West Virginia allows its citizens to carry concealed weapons, the question on appeal was whether the police had reasonable suspicion that Defendant Robinson was dangerous at the time of the traffic stop and frisk.

The Court applied the totality of the circumstances test to determine whether the officer had reasonable suspicion that Defendant was dangerous.  First, the Court considered that, in West Virginia, carrying a concealed firearm is not prohibited by law, thus the fact that Defendant was carrying alone was not enough to give the officer reasonable suspicion that he was dangerous because the state legislature decided that its citizens could carry.  The Court noted that this same approach has been adopted by the Third, Sixth, and Seventh Circuits.  The Court was worried that allowing an officer in states that allow for concealed carry to have reasonable suspicion of danger if a suspect is carrying would eliminate Fourth Amendment protections for carriers and would not allow them to exercise their Second Amendment rights.  Further, the Court was concerned that such a rule would create a “serious and recurring threat” to their privacy, and it would give police officers “unbridled discretion.”

Second, the Court looked at the circumstances surrounding the stop.  These included that there was an anonymous tip, that Defendant Robinson failed to answer the officer’s question of whether he had a gun on his person, and that Defendant Robinson was in a “high-crime area” at the time of the stop.  The Court concluded that the circumstances did not give the officer reasonable suspicion.  Instead, Defendant Robinson was otherwise cooperative during his encounter with the police, he never made a gesture that he was reaching for a weapon, and the officer did not give Defendant Robinson enough time to respond to the question about whether he was armed.  Even though Defendant Robinson was in a high-crime area, the Court reasoned that this was just the area where you would expect to find people carrying a weapon to protect themselves.

Looking at the Totality of the Circumstances, the Fourth Circuit Reversed the District Court’s Decision Denying Defendant Robinson’s Motion to Suppress and Vacated His Conviction and Sentence.

The Dissenting Opinion Articulated Three Reasons for Disagreement with the Majority

The three reasons that the dissenting judge articulated for his opinion were (1) that an officer need only reasonable suspicion that the suspect is armed and thus dangerous, (2) that West Virginia allows its citizens to carry a concealed weapon does not minimize the danger to officers and officers should still be allowed to stop and frisk under the Fourth Amendment, and (3) that even though Defendant Robinson may have been innocent, “reasonable suspicion need not rule out the possibility of innocent conduct.”

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