Executive Summary

In Alabama, people in the visiting room recognize the armband worn by John S. and ask him if he has HIV. In South Carolina, Ronald B. was sentenced to 90 days in jail, but because he is HIV-positive he went to the maximum security prison that houses death row prisoners. In Mississippi, guards tell prisoners in the segregated HIV unit to “get your sick asses out of the way” when they pass them in the hall. Many prisoners with HIV will spend more time in prison because they are not eligible for programs that promote early release. These are some of the harsh consequences of HIV policies in Alabama, South Carolina and Mississippi, the only three states in the nation that have continued to segregate prisoners living with HIV. In March 2010, after reviewing the findings in this report, the Commissioner of the Mississippi Department of Corrections decided to terminate the segregation policy. The segregation and discrimination against HIV-positive prisoners continues to this day in Alabama and South Carolina, and constitutes cruel, inhuman and degrading treatment in violation of international law.

Upon entering the state prison system in Alabama, South Carolina or Mississippi, each prisoner must submit to a test for HIV. In Alabama and South Carolina, and until recently, in Mississippi, the result of this test will determine almost every aspect of a prisoner’s life for as long as he or she is in prison. More than the severity of the crime, the length of their sentence or almost any other factor, the HIV test will determine where he or she will be housed, eat, and recreate; whether there will be access to in-prison jobs and the opportunity to earn wages; and in South Carolina, how much “good time” can be earned toward an early release. The opportunity for supervised work in the community, often a key to successful transition after release, will be either restricted or denied altogether. During the entire period of incarceration, most prisoners who test positive will wear an armband, badge or other marker signifying the positive results of their HIV test.

The HIV policies in Alabama and South Carolina prisons stand in stark contrast to those in 48 other states and the federal Bureau of Prisons. The change in policy in Mississippi increased the isolation of Alabama and South Carolina in this regard. Now, only in these two states are prisoners with HIV isolated, excluded and marginalized as a matter of policy without medical justification. Only these two states combine mandatory HIV testing with immediate isolation and segregation, forcing prisoners to involuntarily disclose their health status in violation of medical ethics and international human rights law. Prisoners living with HIV in these states are still barred from equal access to many in-prison jobs and programs. South Carolina is the only US state that maintains an absolute prohibition on access to work release for prisoners with HIV.

Segregation policies reflect outdated approaches to HIV that no longer have any rational basis in science or public policy. In the early days of the HIV/AIDS epidemic, fear and ignorance led to severely restrictive public policies, including quarantine and segregation in prisons. In 1985, for example, 46 of 51 state and federal prison systems segregated HIV-positive prisoners. As science and societal attitudes evolved, however, prison officials eliminated these policies. By 1994, only six prison systems had segregation policies, and by 2005, that number was down to the three states examined in this report. Today, integration of prisoners with HIV into the general population is the national norm and represents generally accepted best practice in correctional health.

Segregation of prisoners living with HIV without basis in science or public policy cannot be justified under human rights treaties ratified by the United States. Discrimination against prisoners with HIV not only violates human rights law but contravenes international and US guidelines for management of HIV in prisons. Moreover, additional violations of human rights flow from the fact of segregation and compound the harsh consequences of this policy for HIV-positive prisoners: involuntary disclosure of HIV status to family, staff and other prisoners; loss of liberty by assignment to higher security prisons; denial of work, program and re-entry opportunities; and policies that promote, rather than combat, fear, prejudice and even violence against persons living with HIV. These and other conditions documented in this report go well beyond discrimination. Viewed cumulatively, conditions for HIV-positive prisoners in Alabama and South Carolina constitute cruel, inhuman and degrading treatment of prisoners.

This report is a collaborative effort by Human Rights Watch and the American Civil Liberties Union National Prison Project (ACLU-NPP). The project was, to a great degree, informed by the extraordinary history of the ACLU-NPP in advocating for the rights of HIV-positive prisoners in these states for more than two decades. Throughout that time, HIV segregation policies have been controversial, contested, and intertwined with other fundamental issues of human and civil rights, including the right to adequate medical care and humane living conditions. For this report, Human Rights Watch, ACLU-NPP, and local ACLU affiliates conducted interviews of current and recently released prisoners in order to document the contemporary impact of continued housing segregation and ongoing inequality in access to jobs, programs, and work release opportunities. Human Rights Watch also interviewed HIV/AIDS service organizations providing education and counseling services inside the prisons, and community leaders, legislators, and others engaged in HIV policy issues in the state prisons. Human Rights Watch and the ACLU interviewed prison administrators from Alabama, South Carolina, and Mississippi.

Alabama and South Carolina continue to insist that segregation is justified by the need to provide medical care and the goal of preventing HIV transmission in prison. The evidence clearly indicates otherwise. Prisons throughout the US and around the world meet their obligation under international law to provide medical care for HIV without requiring prisoners to forfeit other fundamental rights to privacy, confidentiality, and freedom from discrimination. The prevailing treatment model recognizes that, as with other chronic illnesses, people with HIV vary widely in individual health status, and properly distinguishes between those who need few medical services and those whose condition demands specialized or intensive care.

Similarly, everyone shares the goal of reducing transmission of HIV in prison, but this goal can be met without resort to segregation. Prison officials are obligated under international law to take steps to prevent the spread of HIV and other disease, but such steps should be compatible with other fundamental principles of human rights. Today, there is a developing body of evidence demonstrating that harm reduction programs including condom distribution, syringe exchange, and medication-assisted therapy for prisoners dependent on heroin or other opioids, reduce the risk of transmission of HIV and other sexually transmitted diseases, as well as hepatitis B and C in prisons. These programs have been implemented in the US and abroad with no negative consequences to prison security.

In addition to human rights concerns, the discrimination documented in this report makes little sense as a matter of public policy. Because the HIV units are located in high security prisons, low-custody prisoners must serve their sentences in far harsher, more restrictive, and more violent prisons, and at far greater cost to taxpayers. Otherwise eligible prisoners miss out on opportunities for jobs, training programs and other services designed to prepare prisoners for a productive return to society. Though work release has been shown to reduce recidivism, prisoners with HIV have limited or no access to these valuable programs.

In the Alabama, South Carolina, and Mississippi prison systems, decades of segregation and discrimination have promoted an unsafe atmosphere of fear, prejudice, and stigma against prisoners living with HIV. Although prisoners with HIV unquestionably have sympathetic allies among prison staff and general population prisoners, Human Rights Watch and ACLU-NPP found significant evidence of harassment and hostility toward prisoners living in the segregated units. This is a legacy of human rights violations that cannot be undone overnight. Concern for the safety of prisoners whose privacy and confidentiality has been violated requires that changes in policy should include a choice, rather than a mandate, to enter the general population. In Mississippi, prison officials agreed to relocate currently segregated prisoners after making individualized determinations on a case by case basis. Human Rights Watch and the ACLU-NPP plan to monitor this process closely to ensure the safety and security of the prisoners during the transition.

Mississippi’s decision to reverse its long-standing policy demonstrates that change is possible. Segregation of persons living with HIV is no longer justifiable inside or outside of prison. Prison systems throughout the US and around the world are providing medical care for HIV and preventing its transmission while respecting human rights. Alabama and South Carolina can, and should, end their own isolation by reforming these policies without delay.

Human Rights Watch and the ACLU-NPP call upon Alabama and South Carolina to immediately:

• End the policy of mandatory assignment to designated housing for prisoners with HIV. Incoming prisoners identified as HIV-positive after voluntary testing and counseling should be assigned to housing that is appropriate for that individual under the relevant classification plan. Prisoners currently housed in designated HIV units should be given the option of re-assignment to housing that is otherwise appropriate for that individual under the relevant classification plan.
• End policies and practices that restrict or deny equal access for HIV-positive prisoners to rehabilitative programs including in-prison jobs, education, faith-based or honor dorms, pre-release programs and re-entry training. End policies and practices that deny equal access to work release and community corrections opportunities.
• Implement harm reduction services consistent with international standards including condom distribution, syringe exchange, and medication-assisted therapy for prisoners dependent on heroin and other opioids to reduce the risk of transmission of HIV, hepatitis B and C, and sexually transmitted diseases.