Prisoners have a constitutional right to health care that people “on the outside” do not have. Under the Eighth Amendment, prisoners are entitled to protection from “cruel and unusual” punishment, and to a “safe and humane environment.” In an important U.S. Supreme Court decision, this right was further defined as prohibiting “deliberate indifference to serious medical need” (Estelle v Gamble, 429 US 97 [1976]). In 1991, the U.S. Supreme Court ruled that to show “deliberate indifference,” plaintiffs must demonstrate that correctional officials actually intended to cause the alleged inadequate treatment (Wilson v Seiter, 111 SCt 2321 [1991]). This narrowed standard is much more difficult for prisoners to prove.(69)

Since the mid-1970s, prison health services have improved as civil rights advocates and attorneys advocating prisoners’ rights have challenged conditions of confinement. Prisoners do not vote, and legislators generally have not granted resources for their health care. Litigation, or fear of it, has compelled state and local governments and prison administrations to provide a level of care closer to that available for the general community. Case law regarding HIV in prison has involved a wide range of issues and has contributed to policy development.

Historically, the U.S. courts have been reluctant to scrutinize or challenge prison and jail conditions, assuming that the complexities and peculiarities of those institutions were best dealt with by the prison authorities. Since the critical Estelle v Gamble decision, courts generally have continued to support existing institutional policies when these are challenged by prisoner plaintiffs. In the area of HIV management and care, courts also have tended to defer to prison managers, despite their lack of medical or public health credentials. Courts have upheld policies of segregation of HIV-seropositive persons as well as policies of no segregation. In 1990, for the first time, a court overturned one state’s mandatory HIV testing policy for prisoners.

The Ninth Circuit Court of Appeals declared that the state of Nevada failed to show that its policy “was reasonably related to legitimate penological interests.” Several settlements modified strict policies of segregation of HIV-positive inmates by prisons, including those in Connecticut and California. In contrast, a federal court upheld mandatory testing and segregation in the Alabama state prison in 1990 and stated that prisoners who requested zidovudine treatment were not entitled to “state of the art” treatment, only reasonable care according to the community standard.(69,70) In January 2000, the U.S. Supreme Court refused to consider an appeal by Alabama inmates who challenged their segregation in that state’s prisons. In 2006, the Limestone Correctional Facility in Alabama houses all that state’s HIV-positive male prisoners, and a January 2004 court decision affecting these inmates allowed integration for work and educational programs.

Two years later, only 2 or 3 inmates were participating in these programs. Other prison HIV issues that have been challenged in the courts include breaches of confidentiality, conspicuous special handling of HIV-positive inmates in court and other public places, inadequate medical and psychological care, HIV antibody testing without consent, lack of mandatory HIV testing, incorrect HIV diagnosis, and lack of HIV education. In addition, prisoners have been tried for aggravated assault, assault with a deadly weapon, and attempted murder for alleged biting, spitting, or spilling blood in altercations with guards. A Texas prisoner serving a 2-year term was sentenced to life in prison after being convicted of spitting at a prison guard.(71)

In August 1997, a former inmate of the Illinois state prison system sued prison staff, claiming he was infected with HIV as a result of ongoing sexual abuse by prison gang members while his requests for help from staff were ignored. He had a documented seroconversion while in custody. His claim was disputed and ultimately was rejected after 2 trials (Blucker v Washington, 95c50110, U.S. District Court [ND Ill]).

Incarceration also has been used as a means of punishing and controlling persons who are believed to be knowingly infecting others. Many statutes have created criminal sanctions against HIV-infected people believed to be spreading the virus through irresponsible behavior.

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Elizabeth Kantor, MD
University of California San Francisco

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Dr. Elizabeth Kantor MD practices geriatric medicine and internal medicine in San Francisco, California.

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REFERENCES

1. U.S. National Commission on AIDS. HIV Disease in Correctional Facilities. Washington: U.S. National Commission on AIDS; 1991.
2. Harrison P, Beck AJ. Prisoners in 2004. Washington: U.S. Department of Justice, Bureau of Justice Statistics; October 2005.
3. Maruschak L. HIV in Prisons, 2003. Washington: U.S. Department of Justice, Bureau of Justice Statistics; September 2005.
4. Maruschak L. HIV in Prisons and Jails, 2002. Washington: U.S. Department of Justice, Bureau of Justice Statistics; December 2004.
5. Hammett TM, Harmon P, Rhodes W. The Burden of Infectious Disease Among Inmates and Releasees from Correctional Facilities. In: The Health Status of Soon-to-Be-Released Inmates: A Report to Congress. Vol. 2. Chicago: National Commission on Correctional Health Care; March 2002.

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