Prison Law Blog

Sara Mayeux

Sorting the Punditry from the Facts on the South Carolina Prison System’s HIV-Segregation Policy

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The DOJ Civil Rights Division has threatened to sue South Carolina over its policy of segregating HIV-positive inmates from the rest of the prison population — an outdated practice in which South Carolina, along with Alabama, is now virtually alone among the states. (Mississippi abolished its HIV-segregation policy a few months ago.) Here’s the response of Jon Ozmint, the director of South Carolina’s prison system:

“This is about left-wing politics controlling the United States Justice Department,” Ozmint said. “This is about whether you want more AIDS or less AIDS.”

Never mind that, as Adam Serwer points out, the ACLU and Human Rights Watch have documented a host of ways in which the segregation of HIV-positive prisoners imposes additional punishment and hardship on top of their judicially-mandated sentence, or that the World Health Organisation has said the practice is “costly, inefficient, and can have negative health consequences for segregated prisoners.” Never mind that 44 of the U.S. prison systems that once segregated HIV-positive inmates, pursuant to policies adopted in the early days of the epidemic, no longer do so. Ozmint’s position has been hailed by at least one pundit as a vanguard policy, “effective and humane,” and Ozmint himself as “refreshing” for describing being incarcerated as “a voluntary activity.” One blog, in a particularly odious formulation, accuses the DOJ of seeking to enshrine “HIV transmission” as a “‘civil right.’” A blogger at the Daily Caller writes, “The Justice Department wants you to get AIDS and die.”

The notion underlying this punditry — that the only way prisons can prevent the transmission of HIV is to cordon off HIV-positive inmates and subject them to additional stigma and isolation — rests on some very ugly assumptions about prisoners, HIV-positive men and women, and the responsibilities of prison guards to protect those in their charge. The notion is also belied by the reality that 48 states and the federal prison system do not segregate HIV-positive inmates.

This is not at all to deny that HIV transmission among prisoners is a real and serious public health threat and one that prison officials should be doing everything they can to prevent. Indeed, the World Health Organisation has identified prisons as key sites for spreading the pandemic worldwide, given that prisons are characterized by “overcrowding, poor nutrition, limited access to health care, continued drug use, unsafe injecting practices, unprotected sex and tattooing.” But the idea, peddled by Jon Ozmint, that South Carolina can do nothing to prevent HIV transmission unless it is allowed to deny HIV-positive prisoners equal and humane treatment is simply unacceptable, which is precisely why, I assume, the DOJ Civil Rights Division is considering litigation.

Given Ozmint’s passionate words about his desire to prevent the spread of HIV/AIDS behind bars, and knowing nothing else about Ozmint, one might imagine him to be a proponent of stiff measures to prevent prison rape — so that more prisoners don’t suffer like Keith DeBlasio, who contracted HIV when he was raped in a federal prison. To the contrary, last year Ozmint testified against the adoption of prison rape elimination standards — standards which were developed by a bipartisan commission based on best practices at prisons and jails around the country, pursuant to bipartisan legislation signed by George W. Bush. In particular, Ozmint took issue with the Prison Rape Elimination Commission’s recommendation to relax some of the harsher procedural requirements of the Prison Litigation Reform Act. The PLRA has proven one of the most formidable obstacles to victims of prison rape winning relief in court — as amply documented by the testimony of prison rape survivors collected by Just Detention International. As one survivor has testified:

Prisoners who file a complaint encounter a complicated grievance system that few prisoners can navigate, but you are shut out of court forever if you cannot figure out how to get your grievance properly filed within a few days of the rape.

Yet, Ozmint calls the PLRA, which imposes these hurdles to filing a suit, a “legislative triumph … unmatched in modern Congressional history.”

Earlier this year, Attorney General Eric Holder missed his deadline to adopt national standards aimed at eliminating prison rape. South Carolina’s Jon Ozmint seems to think it would simply be too expensive to adopt such standards. And on that issue, if not on HIV segregation, Ozmint and Holder’s DOJ are in perfect agreement. If pundits are looking for a real scandal in the Obama Department of Justice, it’s this: Holder’s foot-dragging on adopting standards that could sharply curtail the incidence of prison rape nationwide.

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  1. [...] background, see my earlier posts here and here, and the conversation on this issue a few weeks back chez Adam Serwer and the Daily [...]


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