AIDS and Criminal (in) Justice | Community HIV/AIDS Mobilization Project

AIDS and Criminal (in) Justice:

Incarceration, HIV transmission and human rights

Jails and prisons are an epicenter of the AIDS epidemic in the United States and around the world, with co-factors for HIV infection such as poverty, racial oppression, and drug-use also co-factors for incarceration. As communities of color are increasingly criminalized and policed, people living with AIDS are often criminalized for transmitting the HIV virus to others. An estimated one in four people living with HIV in the U.S. spends time behind bars each year. In an age of increasing numbers of incarcerated people, is a human rights approach able to tackle the mounting problems?

Tuesday, December 12th, 2006
6:30 - 8:30PM
LGBT Community Center, New York City

Speakers:

Matt Curtis, Open Society Institute
Click here for PowerPoint presentation.
TJ Parsell, Stop Prisoner Rape
Romeo Sanchez, NYC AIDS Housing Network (NYCAHN)
David Webber, JD, Editor, AIDS and the Law
Click here for handout.

Moderated by: Kenyon Farrow, Board member, Queers for Economic Justice

Co-sponsors:
AIDS Community Research Initiative of America (ACRIA)
Alliance for Inmates with AIDS
Applied Research Center
Bronx HIV Care Network
Community HIV/AIDS Mobilization Project (CHAMP)
Critical Resistance NYC
Drug Policy Alliance
Gay Men’s Health Crisis (GMHC)
Housing Works
LGBT Community Center
Lambda Legal
Legislative Action Coalition on Prison Health
NYC AIDS Housing Network’s Parolee Human Rights Project
Open Society Institute
Prison Moratorium Project
Stop Prisoner Rape
Women's Initiative to Stop HIV/AIDS (WISH-New York) of the Legal Action Center

Summary

Introduction: Kenyon Farrow

Welcome everyone, and thanks to all the co-sponsors. This is a part of the forum series organized by CHAMP and the Center on the politics of HIV prevention.

I think we should broadly open this panel by thinking about the phrase the “prison-industrial complex.” We must think about the interlocking systems in our society (police, surveillance, imprisonment) and how government and corporate interests play into them. More than 2.3 million people in the United States are currently incarcerated. With this in mind, how do prisons target specific communities? More than half of those in prison are African-American, and more than 75 percent are people of color.

How can we think about issues such as zero tolerance policies in our schools, and the fact that the number of people on probation, parole, or currently incarcerated is nearly 7 million people? The United States has 25 percent of the world’s prison population, although we only have 5 percent of the world’s total population.

We also obviously must think about how prisons create public health problems, and we must also consider the communities most impacted by prisons – low-income people of color and drug users.

David Webber, JD, Editor, AIDS and the Law

Below is a summary of David’s remarks:

I’m going to start with two major points to take home. My first point is that people with HIV can be prosecuted for any behavior that poses any risk of HIV transmission in just about every state in this country. My second point concerns confidentiality: there is no confidentiality, particularly when it comes to medical information concerning people with HIV/AIDS.

I’m going to pose a couple scenarios that might help clarify my first point. How do people with HIV become incarcerated in the first place, and what happens to them when they’re prosecuted? Here are some hypothetical situations, composed of various persons ‘A’ and ‘B.’

In the first scenario, a doctor A injects patient B with blood from an AIDS patient; the patient thinks he is getting vitamins. Who thinks A should be prosecuted? (The majority of attendees raise their hands).

In another scenario, A prior to having unprotected anal sex is asked if he has HIV by B, and he lies. Should A be prosecuted? (About half the attendees raise their hands).

In another instance, it is the same as the last one, only now A and B are having sex with condoms. Should A still be prosecuted? (A few people raise their hands). How about if A and B have oral sex and there is no ejaculation except on face and chest? Or what if A warns B before they have sex, then should he be prosecuted? How about if A bites B, break’s B’s skin, and even though there’s no evidence that A is bleeding, should he be prosecuted?

My point with all these scenarios is that people have actually been prosecuted for every one of the scenarios just described.

There are two kinds of things that you need in order to prove for prosecution:
1) The person knew he or she was infected with HIV (sometimes you have to prove how HIV had been transmitted to that individual), and
2) The person engaged in some kind of risk behavior (what is the tiniest remotest risk and what is a most significant risk?).

These kinds of prosecutions are not really considered homicide. In these cases, the “victim” is never actually infected by the behavior. So what the crime for prosecution is here is that there is some sort of risky action.

I think these types of cases are actually remarkably similar to situations of driving under the influence (DUI). On first offense, we don’t send them to jail. In a way it’s very similar to what goes on with HIV. Someone is doing something—unprotected sex—and there is a risk of harm. It could happen, although risk could be very low (i.e., using condoms, but lying about serostatus). Partner B is consenting to whatever sexual activity is going on, for the most part.

In terms of confidentiality issues, we are seeing a movement from the CDC towards prevention with positives, and confidentiality issues are coming up. Through the CDC’s PEMS (Program Evaluation and Monitoring System), people with HIV are actually forced to provide information to the government that could incriminate themselves – for example, when they last shot up drugs or had unprotected sex. Will a subpoena ever come for doctors?

We are also seeing recommendations for widespread and routine HIV testing. Lots of people could be testing positive under these new recommendations, and what are the repercussions concerning confidentiality that we might have to deal with in the future?

Matt Curtis, Open Society Institute

Below is a summary of Matt’s remarks:

I am going to talk about injection drug use in prisons, particularly about the situation abroad and the development of prison-based needle exchange programs. First, I want to mention that international human rights law mandates that prisoners specifically can receive access to healthcare. As I’m sure you know, rates of HIV and Hepatitis C are considerably higher in prison than in general population. Risk behaviors, particularly drug use, are considerably higher in prisons. Drugs are used in all prisons worldwide. There has also been documentation of substantial outbreaks of injection-related HIV in prisons.

Concerning injection, specifically, there is very risky behavior in prisons because of syringe scarcity. Unsafe behaviors include sharpening needles on matchbooks and high numbers of partners. There is also considerable interaction between prison and community injecting partners.

This is a picture of an HIV segregated wing in Siberia (referring to PowerPoint slide). The typical set up includes barracks with many people crowded in the same room. This poses obvious public health problems.

Rates of injection are very high: Nearly 20% say they have injected, 64% had used injecting equipment that someone else had used, and 13.5% started injecting in prison. Injecting is really the most preferred route of using drugs, even though syringes are scarce. When someone gets a hold of a syringe, the syringe would do the rounds again and again and again because there’s no way to get more syringes.

There is a common perception of safety in the former Soviet Union, because they routinely check for STIs, HIV, and syphilis upon entry and supposedly “segregate” those prisoners. Yet the segregation amounts to a chain link fence in the yard between the camps (essentially no segregation, but the perception of it).

Prison needle exchange programs (or PNEPs), started in Switzerland and some other social democracies. It is now national policy there, and there have been good, solid studies over the years that are coming out now. PNEPs are highly effective at reducing HIV, have not posed a security threat (i.e. the fear that syringes will used as weapons), and more than 50 PNEPs now exist in both civilian and military prison systems. Various methods are used in these programs, including hand-to-hand exchanges between nurses and prisoners, but different methods often depend upon different incarceration set-ups.

To sum it up, needles have not been used as weapons, there has been no documented increase in drug use, and most importantly, there have been sharp reductions in syringe sharing and reduced HIV incidence. Finally, access to these needles must be confidential and easy—if they’re only available from health clinic, it’s essentially no access at all. And syringe exchange in prisons must be part of a much broader health strategy.

TJ Parsell, Stop Prisoner Rape

Below is a summary of TJ’s remarks:

I’m with a human rights group called Stop Prisoner Rape. We work towards ending sexual violence in detention facilities. It has been challenging to engage the LGBT community on this issue, but it is important work.

Last year, I was part of a human rights delegation to South Africa. There, prisoner-rights issues are a bigger part of the discourse because of apartheid. I interviewed inmates who had been raped and also some who had been perpetrators of rape. The issues of prisoner rape are similar in South Africa as they are in this country in many ways. Often what happens is a new inmate comes in, and he is tested. He is bumped on the shoulder to gauge his reaction—to see where he fits into the hierarchy of inmates. Sexual violence is about power and domination, with the ultimate dominance being rape. Rape is seen as the capturing of one’s manhood. After that, one is “turned out” or “turned gay.” Of course, gay inmates are seen as fundamentally lacking in this manhood in the first place. These rapes are perpetrated by self-identified heterosexuals; the act itself is not viewed as gay sex if they’re not the ones being penetrated. It’s not about sex, it’s about power and domination.

I met a 17-year old rape victim in South African prison, and I asked him how he refused to let it destroy his sense of self? He said it did, and showed me his wrists, which had scars from self-inflicted cuts.

There is limited data on prison rape. According to the research that is available, one in four female and one in five male inmates experience at least one forced sexual encounter. One in ten experience violent rape. Gay inmates are four times as likely to be sexually assaulted. These numbers could be lower than the reality, because the line between what is consensual and what is coercive is difficult to draw in prison. For example, sometimes inmates are forced into protective pairings that may appear consensual when they’re really not. It is also important to note that youth held in adult facilities are five times more likely to be sexually abused.

Condoms are banned in 95 percent of US jails and prisons. We need to work on this, since condoms would help reduce transmission of HIV and other STIs in prisons and jails.

We must deal with the question: why should we care about prisoner rape? It’s everyone’s problem: 95 percent of prison inmates are eventually released, and they are indelibly marked by what happens inside (increased risk to HIV, hep C, mental illness).

One study done in Texas concerning homophobia among guards found that 46 percent of guards said that some inmates deserve to be raped; 34 percent believe rape victims are weak; and 25 percent believe that the victims are homosexual.

The Prison Rape Elimination Act (PREA) was signed into federal law in 2003. PREA is the first piece of federal legislation that deals specifically with this issue and was a result of the work of a broad coalition of human rights groups, religious conservatives and others. There is a lot of hysteria around the issue of prison rape. People are beginning to talk about alarming rates of increased HIV infection among black women and blaming it on African-American men’s sexual experiences in prison. For example, there is the perception that African American women are being infected by men on the “down-low,” although there is no research that shows that this is true.

Romeo Sanchez, NYCAHN

Below is a summary of Romeo’s remarks:

First of all, prisons are hidden from public view. We can’t see or know exactly what is going on. This is important to remember. We also don’t give inmates skills to return back to society. There cannot be criminal justice without social justice.

Physical security of prisons is priority, but the system has a responsibility to provide proper health care for prisoners. In fact, ironically, incarcerated people are the only group of people required to receive free health care by law. In reality, prisoners leave with more problems and poorer health. They become institutionalized and forfeit their individuality and decision-making and become entrapped in the “revolving door syndrome.” There are some, but not enough, programs that effectively help persons for a successful re-entry into society.

There are 64,000 people in New York State prisons. Most come from communities of color that are the most underserved, and these are the communities they are released back into. Urban youth are commodities in upstate towns. Imagine the combined populations of Atlanta, Des Moines, Pittsburgh, and Miami, and you have the number of people behind bars in this country. Republican senators in upstate New York remain in office in districts that would legally be under-populated and would need to be re-drawn if prisoners weren’t there to inflate the census numbers. And these prisoners don’t have the right to vote. We need to change this.

There is a public health emergency inside our prisons. The HIV rates are 9 to 10 times higher than the general population. The degree of co-infection hovers at 60 percent. 6 percent of men and 14 percent of women in New York State prisons are HIV positive. Hepatitis C rates are worse: 14 percent of incarcerated men and 23 percent of women have hep C.

New York state prison clinics and infirmaries are the worst. They are exempt from Department of Health (DOH) regulations. Prisons permit unlicensed, unaccredited healthcare providers to work there. This is arrogance and lack of responsibility on Department of Correctional Services (DOCS) and DOH. In addition, in prisons, you are unable to change doctors like you are on the outside.

We are hoping that the change governor will help to mobilize and pass bill number 3544, which the Legislative Action Coalition on Prison Health has been pushing for. This bill has passed in state assembly every year, but we cannot get a Senate Republican sponsor because prisons are in Republican senate districts, and it is in their self-interest to preserve the status quo. (For more about this campaign, click here: http://champnetwork.org/media/prisonissue2.pdf)

Concerning condoms, there is a high degree of sexual activity in prison. The activity ranges from consensual sex, prostitution, rapes, sex for barter, coerced sex, sex for pleasure, and marriages. The majority of sex in prison is consensual. DOCS ignores this issue all together by saying that sex is a violation of rules. In fact, many of their own correctional staff are engaging in sex in prison. The most effective HIV prevention programs are peer education programs. But condom access is an important and necessary first step. There are campaigns for condoms access in prisons and jails going on right now in Philadelphia, Austin, and Southern California. ACT UP, CHAMP, and everyone involved in these campaigns are doing a great job. (For more information on these campaigns, click here: http://champnetwork.org/media/spnov06.pdf)

I also want to mention Special Housing Units, or SHUs. This is maximum-security isolation, and it’s worse than the box.

Also, a note on disenfranchisement: people leaving prison need the right to vote, otherwise they are second-class citizens. But there is hope; next month we will have a new governor, and we are organizing and advocating for these things.

Questions and discussion:

David: Very few cases against prison guards are federally prosecuted. Corrections officers control and shape that environment. For example, Roderick Johnson’s case was about a Texas gay man forced into prostitution who begged for protection and met with responses like, “you’re gay, you like it,” until the ACLU filed a lawsuit on his behalf. His trial was unfortunately held in a prison town on an all white jury, which found no one at fault for his treatment.

Question: Can you say more about special housing units concerning HIV/AIDS?

Romeo: SHUs are high-tech dungeons. Essentially, there are two people locked in a cell for 24 hours, no programming, and they have to take showers in the cell. New York has 4 times higher usage of SHUs than other states. I’m part of the Prison Visiting Committee, where we go see these prisons and talk to inmates, and you have to get on your knees and talk to them through the slot. Half of the people in SHUs have mental illness. And if you don’t when you go in, you will when you get out. There is also no process of acclimation—you are released straight back into society out of SHUs with no transition or support.

Also, on the issue of drug use, the best way to think about drugs in prison is: the people that go in there are addicts. They say to me, “I’m an addict; if there are drugs in prison, I’m going to use them.” That makes sense to me.

Question: What is organizing going on? As policy advocates, what’s your relationship and accountability to low-income communities of color?

Romeo: The Legislative Action Coalition is working on the bills for DOH oversight of prison health, like I mentioned. Another issue is that the HIV testing program at Rikers was just eliminated. DOH eliminated this program, and the criminal justice community has not shown up to do anything about it or speak against it. This is a move towards mandatory testing because they just fired all the HIV counselors who provided support. We need to tell Commissioner Friedan that HIV test is not that kind of test. Rapid testing upon intake is the policy now, eliminating HIV testing and support. The average length of employment was 7 years for this staff. They were dedicated and experienced and just let go. It’s wrong.

Question: What about re-entry? What happens in other countries? Is it better than here?

Matt: It’s obviously really different in different parts of the world. Only a handful of programs provide services for HIV positive people transitioning back to society. EU countries do provide some services (social democracies), but the real issue is that it’s not “can we develop good post-release programs” but “can we have anything for anybody?” Some have tried to set up referral systems and networks, but we need to start these programs earlier than release: we need to work on trust issues prior to release.

TJ: If you’re rich enough, you have rehab. If you’re poor, you have jails and prisons. Essentially, prisons are the world’s largest rehab centers but there’s no drug treatment there.

Comment: What about women? This panel has been really helpful and insightful, but I’d like to see another forum organized that focuses on women, HIV, and prisons.