HIV Transmission and Advocacy for Harm Reduction in US Prisons and Jails
In the US, the number of people in state and federal prisons and city or county jails continues to increase at record-setting levels. In 1994, state and federal prisons had over 83,200 new entrants – the second largest increase in history – and almost 1.5 million people were behind bars on any given day.[1]
The so-called War on Drugs has been a boon to the US prison industry: in 1994, over 25 percent of state and federal inmates served time for drug-related crimes, compared to eight percent in 1980.[2] Minorities are vastly over-represented: African-Americans represented over 50 percent, and Hispanics 14 percent, of the total sentenced inmate population in 1993.[3]
At the same time, the AIDS epidemic in the US is increasingly an epidemic of injection drug users (IDUs) and their sexual partners. Very high rates of HIV-infection among prisoners are the result of wide-scale incarceration of IDUs, many of whom are living with HIV/AIDS, on drug-related and other crimes. Conservative estimates indicate that the median AIDS incidence rate in correctional facilities for 1992-93 was 20 times higher than in the general population.[4]
In prisons and jails, high-risk sex and drug use are commonplace. Prisoners and their advocates, and correctional staff and officials, have known this for some time. Recently, the extent of high-risk activities and the ensuing risk of HIV transmission has been confirmed by researchers:
• I conducted a focus-group study in New York, in which prisoners and former prisoners reported frequent and tragic instances of unprotected sex and often-desperate injection drug use with used injection equipment being used behind bars.[6]
Nevertheless, not much is being done to prevent HIV infection among prisoners. Although the White House Office on AIDS/HIV Policy endorsed the distribution of condoms and dental dams behind bars,[7] only five jurisdictions – New York City, Philadelphia, Washington, DC, Vermont and Mississippi – distribute condoms to male prisoners.[8] Only two – San Francisco and the District of Columbia – distribute dental dams and condoms to female inmates.[9] Bleach is nowhere officially made available to inmates in the US. In contrast, prisoners have access to latex barriers and bleach in many countries where HIV rates among inmates are lower than in the US.[10]
In correctional systems in the US where latex barriers are available to prisoners, access to them was made generally possible by the determination and persistence of individual service providers and local departments of health. Working in partnership, prison advocates and public health officials approached correctional officials and requested changes in or exceptions to correctional regulations that would allow for HIV education and prevention. For prison advocates everywhere, this attests to the necessity of seeking out public health and correctional officials as potential allies.
Largely because of mounting anti-prisoner sentiment in the US, distribution of latex barriers and other harm-reduction devices – such as bleach and sterile needles – in prisons and jails has become an increasingly difficult goal to achieve. As in many other countries, the legislative and judicial branches of the US government grant correctional officials wide discretion in operating prisons and jails. In jurisdictions where correctional officials themselves will not consider distribution of harm-reduction devices, advocates face substantial and perhaps insurmountable opposition.
Litigation is one potential means of challenging correctional officials' resistance to the introduction of harm-reduction devices into prisons and jails. Since 1964, when the US Supreme Court first declared that prisoners have constitutional rights, litigation – particularly claims under the Eighth Amendment to the US Constitution, which prohibits correctional officers from imposing "cruel and unusual punishment" on prisoners – has been the major avenue for reform in correctional polices and conditions in the US. Over the last few years, however, prisoners' access to federal courts has been under siege. Those who propose restricting prisoners' access to courts often refer to the large numbers of meritless claims filed by prisoners, yet in a strikingly high number of instances prisoners prevail at the bar. It suffices to say that prisons and jails in at least 24 states are currently under court order for violations of the health-care standards mandated by the US Supreme Court in Estelle v Gamble in 1976.[11] In that case, the Supreme Court recognized a prisoner's right to health care, declaring that "deliberate indifference" to an inmate's "serious medical needs" violated the Eighth Amendment.
Prisoners seeking the introduction of harm-reduction devices could file suit against correctional officials. Such a case would most appropriately be framed as an Eighth Amendment claim, alleging that correctional officials had been "deliberately indifferent" to prisoners' safety by denying them access to HIV risk-reduction tools. A similar suit was filed by prisoners in New South Wales, Australia in 1994.[12]
For the potential suit in US courts to prevail, plaintiffs would have to meet the formidable test for Eighth Amendment prison conditions claims. As currently interpreted by federal courts, this standard has two prongs:
• the subjective requirement, under which plaintiffs must prove that the correctional official personally knew of and disregarded an excessive risk to inmate safety.
A full analysis of a potential Eighth Amendment claim is beyond the scope of this article. However, it is unlikely that the claim would prevail, due to two factors:
• the enormity of the plaintiffs' burden in proving that the correctional officials had personal knowledge of the risk of infection.
Moreover, given the strong anti-prisoner sentiment in the general public and the increasingly limited scope of the Eighth Amendment, the viability and political wisdom of such a suit must be questioned. In the current climate, filing an Eighth Amendment claim could cause a backlash against prisoners, prison advocates and prison legal services, which are already under political and economic siege.
Rather than through litigation, advocates for the introduction of HIV risk-reduction tools in prisons and jails in the US should pursue their goal through coalition-building, in particular with public health authorities. Results of research on incidence and prevalence of high-risk behaviour behind bars, and examples of successful harm-reduction programs in prisons in other countries (such as Canada, Switzerland and Australia), will be invaluable for any advocacy efforts. Indeed, the need for international collaboration cannot be overestimated: arguments often made by correctional officials against the introduction of harm-reduction devices – such as that prisoners will use them as weapons – can best be refuted with examples of successful prison-based harm-reduction programs, programs that have not had any negative consequences with respect to safety and security in the institutions, and are supported by prisoners, staff, prison administrations, and the public.
- Nancy Mahon
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ENDNOTES
[1] AJ Beck & DK Gillard. Prisoners in 1994 (1995). Bureau of Justice Statistics. Washington, DC. (NCJ-151654).
[2] Ibid.
[3] Ibid. at 9.
[4] TM Hammett, L Harrold et al. 1992 Update: HIV/AIDS in Correctional Facilities. Washington, DC: US Dept of Justice, National Institute of Justice, January 1994, at 14.
[5] RC Mutter, RM Grimes, D Labarthe. Evidence of Intraprison Spread of HIV Infection. Archives of Internal Medicine 1994; 154:793-795.
[6] N Mahon. High Risk Behavior for HIV Transmission in New York State Prisons and City Jails. American Journal of Public Health 1995 (forthcoming).
[7] Oral remarks of Ben Merrill, Special Assistant to the Director, White House Office of AIDS Policy. Presented at the First National AIDS/HIV in Prison Roundtable, 15 October 1993. San Francisco, CA.
[8] TM Hammett, L Harrold et al. 1992 Update: HIV/AIDS in Correctional Facilities. Washington, DC: US Dept of Justice, National Institute of Justice, January 1994, at 46-47.
[9] Ibid. at 47.
[10] For more information, see Correctional Service Canada. HIV/AIDS in Prisons: Final Report of the Expert Committee on AIDS and Prisons. Ottawa: Minister of Supply and Services Canada, 1994, at 55-57, 66-67.
[11] 429 U.S. 97, 97 S. Ct. 285 (1976). See also N Mahon. Where Medical Treatment is Criminal. The New York Times. Op-Ed, 2 July 1994.
[12] Prisoners A to XX inclusive v New South Wales, 1994. See also I Malkin. The Role of the Law of Negligence in Preventing Prisoners' Exposure to HIV While in Custody, supra; and Canadian HIV/AIDS Policy & Law Newsletter, vol 1, nos 1 and 3.