by Matt Clarke

On June 20, 2016, Rebecca Bond, chief of the Disability Rights Section of the U.S. Department of Justice (DOJ), sent the Nevada Attorney General a letter calling out the state’s Department of Corrections (DOC) for unlawfully discriminating against prisoners with HIV, mobility devices and other disabilities – including hypertension, psoriasis and rheumatoid arthritis – in violation of the Americans with Disabilities Act (ADA).

A little over two weeks later, on July 6, 2016, the DOC announced it would no longer apply segregation policies that deny prisoners with HIV access to work programs where they could earn credits to reduce the length of their sentences.

Shortly afterwards, on July 21, DOC Director James Dzurenda announced that prisoners with HIV would no longer be segregated from the general prison population. He also announced other changes, including new protections intended to keep prisoners’ HIV status confidential, and training for both prisoners and prison staff about how HIV is transmitted.

The DOJ letter not only demanded that the DOC change its discriminatory policies and practices, but also to pay damages to prisoners who had been subjected to discrimination.

Faced with the threat of a federal lawsuit, Dzurenda stated the DOC “will not support denying an inmate a job or housing an inmate differently from the general population based on the reasoning that they have HIV or other blood-borne disease.”

The DOJ’s investigation was initiated in response to multiple complaints from two HIV-positive prisoners at the High Desert State Prison. The investigation included interviews with more than 30 prisoners and 20 staff members, and revealed additional complaints by mobility-impaired prisoners and those with other disabilities.

DOJ officials specifically found that the DOC’s policy of celling HIV-positive prisoners either alone or with other HIV-positive prisoners served to inform staff and other prisoners of their HIV status. This exposed them to potential harm from prisoners with unfounded fears or prejudice regarding HIV.

HIV-positive prisoners had also been told by staff that they could not work in the kitchen and had been removed from such jobs due to their HIV status. This went against DOC policy, which actually allows prisoners with HIV to work in prison kitchens.

“But some [DOC] employees either are unaware of, or have knowingly disregarded, this policy,” the DOJ stated, adding that some prisoners’ jobs had been terminated upon discovery that they were HIV-positive.

DOC policy also was restricting or denying placement in conservation camps and transitional-housing facilities to prisoners with certain chronic medical conditions, mobility devices and those whose medication was not “keep-on-person.” This included prisoners taking anticoagulants or muscle relaxants, and medications used to treat mental health conditions, tuberculosis, psoriasis and rheumatoid arthritis, as well as prisoners with HIV, hepatitis B or C, diabetes, asthma and hypertension. The policy prevented those prisoners from earning early-release work credits and – like the DOC’s cell housing policy – violated the ADA.

“No inmate should have to stay in segregated housing because of a HIV diagnosis or serve a longer sentence because of a disability,” said Vanita Gupta, then-Deputy Assistant U.S. Attorney General and head of the DOJ’s Civil Rights Division.

HIV, the human immunodeficiency virus, causes AIDS. But it cannot be transmitted through ordinary activities such as shaking hands or sharing drinking glasses, according to the Centers for Disease Control and Prevention.

Attorneys for the ACLU of Nevada who had complained to the Justice Department about the DOC’s policies said they were impressed with the quick response by Dzurenda, who became the state’s new corrections director in April 2016.

“We are thrilled,” said Amy Rose, the group’s legal director.

Nevada law says prisoners must be separated from other offenders if there is a risk of transmitting disease by battery, sexual activity or use of illegal drugs. Mike Willden, chief of staff for Governor Brian Sandoval, said there will have to be changes in Nevada law to comply with the federal requirements.

Dzurenda said he had submitted a request to the Nevada legislature to formalize some of the changes in state laws and regulations, and that additional reforms may be forthcoming.

“[The DOC] is committed to a safe and human environment for each employee and inmate and will continue to review and revise other measures suggested” by the DOJ, declared Brooke Keast, the department’s public information officer.

“In an effort to decrease any negative expectations or fears on the part of non-HIV positive inmates given the new policies above, a pamphlet is being designed covering facts about HIV and the changes in policy” at the DOC, she added.

Under the new policies, only limited medical personnel will have access to the identities of HIV-positive prisoners, and prison housing classification forms are being revised to eliminate the medical code typically associated with HIV status, Dzurenda said. If a prisoner meets all the requirements for a work assignment, he or she will be considered like any other prisoner, regardless of HIV status.

The policy preventing HIV-positive prisoners from accessing the two lowest-security classifications also kept them from earning additional early-release work credits and wages from outside employment.

The DOC’s two transitional-housing facilities hold prisoners classified at the lowest-security level, community trustee, who are within 18 months of their probable release date. They are allowed to work or seek employment outside the facility during the day. In addition to their salaries, they can earn up to 20 days in work credits per month – double what can be earned in state prison facilities.

The next lowest security classification is minimum. Minimum-security prisoners may work in one of the DOC’s nine conservation camps, performing tasks such as firefighting, landscaping and removal of roadside litter while earning up to 20 work credits per month.

Prisoners who were denied placement in the transitional-housing facilities and conservation camps remained at medium-custody prisons despite having been found eligible for a lower security level. They were denied outside employment opportunities and the possibility of earning additional credits toward early release – which the DOJ called a violation of the ADA.

The DOC adopted most of the DOJ’s detailed recommendations, including abolishing celling restrictions based on HIV status, mobility devices, chronic medical conditions and non-keep-on-person medication; housing prisoners at their eligible security level; and training employees about ADA requirements.

When this issue went to press, there were no updates on the status of the DOJ’s other recommendations, which included designating an ADA-compliance coordinator at each DOC facility and paying damages to prisoners harmed by the Nevada prison system’s prior discriminatory policies. 

Sources: DOJ letter, Las Vegas Sun, Las Vegas Review-Journal, San Diego Union-Tribune

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