In Alabama, prisoners with HIV are made to wear a white armband to distinguish themselves from other inmates, a modern-day scarlet letter. In South Carolina, the 400 or so HIV-positive prisoners, even those convicted of minor offenses, are housed in maximum-security facilities alongside those on death row. Both states segregate HIV-positive prisoners from the rest of the prison population and arbitrarily exclude them from important opportunities to rehabilitate and re-enter society.
Of course, prisoners waive certain rights when they break the law. But HIV is no longer a death sentence; simply having the virus merits neither cruel and unusual punishment nor the denial of opportunities to earn one’s way back into society. When I established the Elton John AIDS Foundation 20 years ago, one objective was to reduce the stigma and discrimination associated with HIV/AIDS. These policies are a reminder that our work is far from over.
Some coldhearted people might ask whether it matters that prisoners are being mistreated in this way. In fact, there are very real implications for the rest of society.
One study has found that nearly 17 percent of Americans living with HIV/AIDS in 2006 spent time in federal or state correctional systems. In 2008, roughly 1.5 percent of the U.S. prison population was estimated to be HIV-positive — a rate of infection that exceeds the Centers for Disease Control and Prevention’s definition of an epidemic. And then there’s the small detail of the United States imprisoning a higher percentage of its population than any other nation. Nearly 1.6 million men and women are currently locked up in state and federal prisons. With a staggering number like that, what happens in the penal system should matter to anyone at risk of contracting HIV.
Alabama and South Carolina insist their policies are justified by the need to provide medical care to HIV-positive prisoners and prevent the transmission of the disease to other inmates. Neither excuse has any evidence to support it. Even if prisoners engage in sexual activity, modern antiretroviral therapy has radically reduced the odds that HIV transmission will occur at all. The vast majority of HIV patients, including those in Alabama’s prisons, will experience complete viral suppression, which reduces the risk that an individual will transmit HIV to nearly zero. Moreover, the policy does nothing to prevent the introduction of HIV through staff sexual misconduct. In a national study, about half the incidents of sexual aggression reported by former inmates were committed by staff members, not fellow prisoners. Alabama does not even test correctional officers for HIV.
Many HIV-positive prisoners in these states will spend more time behind bars than uninfected inmates with similar convictions, because they are not eligible for programs that promote early release and provide re-entry opportunities. HIV-positive prisoners also face barriers to accessing the treatment they need to manage their disease and keep it from progressing — treatment, which we now know, doubles as prevention. And by depriving HIV-positive prisoners of equal treatment, Alabama and South Carolina promote fear, prejudice, and even violence against them.
The ACLU has tried for years to work with the Alabama Department of Corrections to drop its discriminatory policies against the 0.8 percent of its prisoners who are HIV positive. Its class-action lawsuit against the department, Henderson v. Thomas, will go to trial Sept. 17. The state had moved to dismiss, citing a 1999 appeals court decision that upheld segregation on the grounds that HIV was an “invariably fatal disease.” The motion was denied. There is no longer truth in that excuse.
Institutionalized segregation and discrimination used to be the norm in U.S. prisons. In 1985, 46 of 51 state and federal prison systems segregated HIV-positive prisoners. But science prevailed over fear, resulting in a sea change in public attitudes and policies. Today, in 48 states — and around much of the world, for that matter — prisons have no issue providing medical care to HIV-positive patients without depriving them of the liberties that other prisoners enjoy and the basic humanity that all deserve.
In Alabama and South Carolina, HIV-positive prisoners are repaying their debts to society in accordance with the law. They should not bear the additional punishment of being prisoners of the past.