Alabama law requires HIV testing for all prisoners (Ala. Code § 22-11A-17, 38 (2008)), but is silent as to the segregation of HIV+ prisoners. Regardless, for the past 25 years, ADOC policy has dictated that prisoners with HIV be housed separately from other prisoners, both inter- and intra-facility, regardless of their security classification.
Prisoners are classified as close custody, medium, minimum-in, minimum-out and minimum-community. Those five security levels are based on a multi-factor analysis that includes the prisoner's criminal history, past convictions, past violence, length of sentence and any pending charges.
Despite this classification system, all HIV+ prisoners are housed in four prisons. Male prisoners with HIV are housed at either the Limestone Correctional Facility (LCF) or Decatur Work Release/Community Work Center. Female HIV+ prisoners are held at the Julia Tutwiler Prison for Women or the Montgomery Women's Facility.
The centerpiece of the ADOC's segregation policy is that HIV+ prisoners housed at those facilities are completely separated from other prisoners. While male prisoners in general population who have a six-month clean disciplinary record may apply to transfer to a prison closer to their families, male prisoners with HIV are prohibited from transferring entirely.
Additionally, HIV+ prisoners with mental health problems cannot be sent to ADOC facilities designated for prisoners with certain mental health needs, nor is the ADOC's therapeutic community program for substance abuse treatment offered at the prisons where HIV+ prisoners are housed. From 2007 to 2008, the ADOC had integrated HIV+ prisoners into some in-prison programs as well as work release, but only at the facilities restricted to HIV+ prisoners. [See: PLN, Feb. 2010, p.49; Dec. 2008, p.28].
The ADOC's policy also excludes HIV+ prisoners from general population areas at LCF. The health status of prisoners with HIV is disclosed to fellow prisoners, staff and visitors at LCF because prison officials force HIV+ prisoners to wear identifying white armbands. The plaintiffs also alleged the ADOC uses a discriminatory medical clearance policy to determine if a prisoner can participate in work release, and the policy forces prisoners to start antiretroviral medications before they are required to do so based on their viral loads.
The plaintiffs further claimed that the ADOC's segregation policy impacts certain programs. For example, HIV+ prisoners are excluded from the residential component of LCF's substance abuse program. The district court found that by implication, prisoners with HIV are barred from programs at the majority of ADOC facilities. Finally, HIV+ prisoners cannot obtain institutional food service job positions even though HIV cannot be transmitted by handling food. In sum, the plaintiffs argued that the ADOC subjected them to disparate treatment and the unlawful disclosure of their medical status.
The district court had previously certified a class consisting of 260 current HIV+ prisoners and all future HIV+ prisoners housed in ADOC facilities. In its December 2012 ruling, which followed a month-long bench trial, the court entered judgment in favor of the prisoner class members, finding that "the ADOC has violated the ADA's Title II and the Rehabilitation Act's § 504."
U.S. District Judge Myron H. Thompson wrote that "the segregation policy is based on outdated and unsupported assumptions about HIV and the prison system's ability to deal with HIV-positive prisoners. The policy is also infected, and the reasons the ADOC has proffered for its continued existence undermined, by an intentional bias against HIV-positive people, as reflected in a bias from those in charge (for example, with the white-armband policy) and in a system-wide tolerance for a culture of bias, rooted in large measure in ignorance about HIV, from among not only prisoners but employees in general (for example, with the food-service policy and the fear that guards will not protect HIV-positive prisoners)."
Judge Thompson made clear, however, that he was not holding "that all HIV-positive prisoners are entitled to be co-mingled with HIV-negative prisoners; indeed, the court is not even holding that any particular HIV-positive prisoner is entitled to such. Rather, the court is simply holding that how prisoners should be treated based on their HIV-positive status must depend upon an individual-by-individual assessment of these prisoners that honors each prisoner's rights under the ADA, and the court is convinced that resources are reasonably available to do this."
In response to ADOC Associate Commissioner James DeLoach, who had said in defense of the segregation policy, "[W]e live in Alabama, and there are a lot of prejudices.... [I]t doesn't sound nice. It doesn't sound ... chic.... Prejudices ... die hard in Alabama," Judge Thompson retorted, "'We live in Alabama' is not an excuse for discriminating against HIV+ prisoners." He noted that the state's HIV segregation policy was "an unnecessary tool for preventing the transmission of HIV" but "an effective one for humiliating and isolating prisoners living with the disease."
Judge Thompson reserved judgment with respect to the ADOC's work release policy as it relates to prisoners with HIV, and provided the parties with "a reasonable opportunity, jointly or separately, to propose relief to the court." The lawsuit remains pending and the district court has not yet entered an order detailing what actions the ADOC must take to end its discriminatory policy against HIV+ prisoners. The plaintiffs are represented by the ACLU and the law firm of Copeland Franco Screws & Gill. See: Henderson v. Thomas, U.S.D.C. (M.D. Ala.), Case No. 2:11-cv-00224-MHT-WC; 2012 U.S. Dist. LEXIS 180690.
The only other state to segregate HIV+ prisoners, South Carolina, announced on July 10, 2013 that it would cease that practice. South Carolina has kept prisoners with HIV separate from other prisoners since 1998; currently, 366 HIV+ prisoners are housed at two South Carolina DOC facilities in Columbia.
"Our medical staff has examined all the facets of this issue, and we believe it is safe to make a change in our current policy," said SC DOC Director William R. Byars, Jr. In 2001, a federal district court had upheld the state's HIV segregation policy, while the 11th Circuit had upheld the ADOC's segregation policy in an earlier case in 1999. [See: PLN, April 2000, p.14].
"Ending a long outdated policy that stigmatized human beings and ignored modern medical information is a tremendous victory for human rights," stated Susan K. Dunn, legal director of the ACLU of South Carolina.
Additional sources: New York Times, www.postandcourier.com, CNN
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Related legal case
Henderson v. Thomas
|Cite||U.S.D.C. (M.D. Ala.), Case No. 2:11-cv-00224-MHT-WC; 2012 U.S. Dist. LEXIS 180690|