Important note: Information in this article was accurate in 2003. The state of the art may have changed since the publication date. Last year, a group of segregated HIV-infected inmates filed a class action lawsuit against the Limestone Correctional Facility in Alabama. Their complaint - unconstitutional medical treatment and living conditions - paints a disturbing picture of gross neglect and poor medical care. The controversy surrounding this lawsuit has focused new attention on the issue of clustering, or grouping or segregating HIV-infected inmates to provide specialized treatment and management. While many medical service providers support clustering as a tool to provide skilled, centralized care for HIV-infected inmates, many prisoners' rights advocates argue that clustering raises serious civil rights issues, such as those alleged in the Limestone case.
The primary goal of clustering is to create centers of excellence that promote HIV expertise. By bringing together all HIV-infected inmates, a prison may dedicate staff and resources to their care, and ensure up-to-date medical treatment. Likewise, inmates benefit from living in therapeutic communities, with peer support and improved patient education, relatively free from the threat of harassment from other inmates. Clustering may also reduce HIV transmission among inmates and promote increased HIV testing and disclosure, since inmates know that they will receive better care if they seek help.
Opponents of clustering laud these goals, but say they are unrealistic in practice. Since prison health care is, in some cases, underfunded, and overtaxed by patient need, opponents doubt that the goal of excellence (comparable to outside facilities) can be met, even with the increased efficiency of clustering. Additionally, clustering may actually discourage disclosure and testing because segregated HIV-infected inmates are often denied full and equal access to coveted work and education programs. As HIV treatment continues to improve and HIV-infected individuals live healthier lives with only routine monitoring, clustering may become increasingly outdated.
It is important to note that clustering can take a number of different forms. Some states may simply designate that all known HIV-infected inmates be housed in general population at specific facilities to obtain centralized treatment and better use of medical resources; others may provide separate dorms or units within general population, and still others that may totally segregate HIV-infected inmates from general population. Currently, Alabama is the only state that has an official policy of segregating HIV-infected inmates. As will be discussed below, the legal implications of clustering depend greatly on the extent to which HIV-infected inmates are treated differently than HIV-uninfected inmates of the same security level.
The two main areas of the law that address the issue of clustering are the 8th Amendment of the Constitution and anti-discrimination disability statutes. The 8th Amendment, which prohibits cruel and unusual punishment, establishes the baseline for inmate medical care: staff must not be deliberately indifferent to an inmate's serious medical needs. This is a very low standard that requires staff simply to refrain from knowingly allowing an inmate to suffer great harm. Not surprisingly, the 8th Amendment gives facilities great latitude to establish their own HIV treatment protocols. So far, none of the high courts have interpreted the 8th Amendment to mean that an HIV-infected inmate should see an HIV specialist. The goal of clustering for HIV care thus far exceeds any constitutionally-mandated level of care - a fact justly celebrated by proponents.
However, clustering can be problematic when challenged under statutes that prohibit discrimination on the basis of disability, such as the Americans with Disabilities Act. These laws require that HIV-infected inmates have equal access to prison programs for which they are "otherwise qualified." In the 1999 case of Onishea v. Hopper (171 F.3d 1289), the 11th Circuit Court of Appeals held that HIV-infected inmates could be segregated for legitimate penological reasons (e.g., security or efficiency), but that prisons were still required to make a good faith effort, or "reasonable accommodation" to provide equal access to programs and services. The court stipulated that prisons should not have to bear an enormous cost burden to provide equal access, but did not state as a matter of law what particular accommodations were required.
This gray area means that prisons still have little guidance about what constitutes a reasonable accommodation. Anti-discrimination laws in the prison context are therefore still in a tremendous state of flux.
So, the most basic operating principle is this: the more that clustering results in reduced access to prison programs and services, the more vulnerable a prison can be to litigation. If clustering can be accomplished with minimal impact on inmates' access to programs and services, inmates may be more likely to disclose their status, seek testing, and otherwise gain the benefits of a clustering system. These programs may, therefore, pass muster under anti-discrimination laws if challenged in the courts.
Finally, clustering raises the issue of the right to privacy under the 1st Amendment. In many facilities, clustered inmates can be identified by other inmates, thereby revealing their status. While inmates do have a basic right to privacy, courts have held that legitimate penological concerns, such as inmate health and well-being, outweigh these privacy interests.
Another factor to consider is how effective clustering can be in states without mandatory testing. Inmates who choose not to seek testing or disclose their HIV status out of fear of segregation are effectively cut off from HIV care and counseling, possibly increasing the risk of transmission to other inmates. However, if facilities can design clustering programs that try to meet the requirements of anti-discrimination laws, inmates may be much more likely to seek proper care in those states that do not have mandatory testing.
In a perfect world, HIV-infected inmates would have access to expert treatment and equal opportunities to participate in prison programs, and the law strives for something like this. However, the reality of prison life and limited funds can thwart these goals. The best compromise may be a truly individualized system that allows those HIV-infected inmates who need highly focused medical attention to receive it, perhaps through inmate clustering, while those who can fully participate in prison programs be allowed to do so.
* Nothing to disclose
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©1997,1998,1999,2000,2001,2002, 2003. The recently formed HIV Education Prison Project (HEPP) is a medical education program that targets a growing population, inmates in correctional facilities, that has been underserved in HIV care. It is part of the Brown University AIDS Program. Permission to use and reproduce portions of this newsletter is hereby granted provided that author and publication are fully credited and both copyright and permission notice appear with reprinted material. Inquiries may be directed to heppnews@brown.edu. Website: HIV Education Prison Project.
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