In September 2001, the United States Parole Commission (USPC) issued a Notice of Action that, while not precedent, signifies an important policy and a possible way for prisoners to challenge parole decisions. The case arose after the USPC denied parole to a woman because she was HIV+ and had prior prostitution charges. Reasoning that her HIV made her a threat to the community, the USPC denied her parole. Administrative appeals were denied.
A Habeas Corpus petition was filed in the district of her incarceration, naming the warden and the USPC as defendants. In the petition, we argued:
l. Section 504 of the Rehabilitation Act prohibits the denial of benefits to an otherwise qualified person with a disability under any program or activity conducted by an Executive agency of the federal government. 29 U.S.C. 794;
2. The USPC is an Executive agency;
3. Parole is a program or activity;
4. HIV is a disability. See, e.g., Bragdon v. Abbott, 524 US 624, 630 (1998).
5. In making any decision that looks at an individual's disability, the USPC must conduct an individualized inquiry into the person's condition, possible threats to the community, and any ways to minimize those threats. See: School Board of Nassau County, Florida v. Arline, 480 US 273, 288 (1998);
6. Therefore, the USPC's decision based on generalized fears about HIV violated the Rehabilitation Act.
After reviewing the Habeas Corpus Petition, the USPC reversed its decision. It issued a new Notice of Action, which stated that the Commission has decided to interpret the phrase "not incompatible with the welfare of society" in DC Code 24-204 to refer to protecting the public only from the potential criminal activity of prisoners if released on parole, and not the potential health risks that may be posed by the release of prisoners with communicable diseases. This interpretation, which is consistent with its prior interpretation of 18 U.S.C. 4206, leaves such matters to the jurisdiction of the relevant public health agencies. This Notice of Action is not precedent and there is no court decision to cite.
DC Prisoners' Legal Services Project no longer handles parole cases and will not take other cases on this issue. However, others may use this argument as a starting point when the USPC denies parole based upon a prisoner's health conditions. Always exhaust administrative remedies before going to court. Since the Americans with Disabilities Act imposes similar requirements on states, it may be possible to use a similar argument against state parole boards. As always, if you have additional legal theories, include them in the lawsuit. [ Editor's Note: The cite is ommitted to preserve the plaintiff's anonymity .]
Deborah M. Golden is staff attorney for the DC Prisoners' Legal Services Project
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