Prison Law Blog

Sara Mayeux

More on the Poisonous Punditry Surrounding South Carolina’s HIV-Segregation Policy

with 4 comments

Yesterday I blogged about the latest teapot-tempest in the online echo chamber: outrage over the DOJ’s threatened lawsuit over South Carolina’s policy of segregating HIV-positive inmates (outrage which seems to be motivated by a desire to score political points against the Obama Administration rather than genuine concern for inmates, and which seems to be informed by little to no research into the broader issue of prison transmission of HIV/AIDS). Today I just wanted to highlight one particular passage from J. Christian Adams’s Washington Examiner column:

The DOJ is in a lose-lose situation. Even if DOJ wins a lawsuit, sources tell me South Carolina is simply going to cancel all of the special testing, treatment and counseling, thereby saving the state $2 million a year.

Instead, the state will dump infected prisoners into the general population, and nobody will know they have AIDS. Worse, prisoners who come to prison with HIV/AIDS will never know they have the disease and their lives will be shortened because the testing program will end.

Special counseling would end, too.

First, note how both Adams and his “sources” (seemingly SC’s prison director, Jon Ozmint) conflate mandatory testing, forced disclosure of status, and residential segregation with the far less objectionable — indeed, laudable — practices of providing testing, counseling, and treatment for HIV-positive prisoners. Second, note that Adams’s “sources” have either been unfairly paraphrased or, if paraphrased accurately, are just posturing, because Ozmint surely well knows that the system he oversees has an Eighth Amendment obligation not to exhibit “deliberate indifference” towards prisoners’ known, serious medical needs. While the case law is mixed on prisons’ specific obligations towards inmates diagnosed with HIV/AIDS, it’s a safe bet that cutting off literally “all” testing, treatment, and counseling for such inmates would not pass Eighth Amendment muster.

Finally, note how both Adams and Ozmint utterly ignore the real issue here, which is not about medical treatment, but basic principles of fairness and due process: South Carolina’s policy means that, purely by virtue of a diagnosis, HIV-positive prisoners in South Carolina may serve longer and harsher sentences than their non-HIV-positive counterparts who’ve committed similar crimes. As reported by Human Rights Watch:

In South Carolina, all HIV-positive prisoners – regardless of the severity of their offense – are housed at Broad River facility for men or Camille Graham prison for women, both maximum security prisons that also house death row prisoners. Assigned to a high-security facility without regard to criminal background and denied the ability to transfer to pre-release and re-entry programs at other units, prisoners with HIV serve longer sentences, under the harsher conditions inside maximum security facilities, than prisoners who are not HIV-positive.

Prisoners living with HIV are barred from numerous prison jobs that earn extra work credits that apply toward early release. South Carolina is the only state in the union to prohibit HIV-positive prisoners from participating in work-release programs.

4 Responses

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  1. The Examiner article mentions that the courts have “repeatedly rejected” claims that the program is unconstitutional. Is this true?

    LJ Marshall

    August 10, 2010 at 5:48 am

  2. Totally true. The DOJ case is a big fat going nowhere bluster job brought at the behest of activists like the blogger here. Caselaw via Hans Bader – The Obama Administration’s claim is flatly inconsistent with a federal appeals court ruling that held that even a tiny risk of HIV transmission can justify sweeping anti-AIDS measures like not employing a surgeon with AIDS, given the lethal nature of AIDS. (See Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir. 1995).) That ruling is binding precedent in South Carolina, and it rejected challenges under both the Americans with Disabilities Act and its sister statute, the Rehabilitation Act.”

    These are prisoners. People advocating this lawsuit are going to lose BOTH the lawsuit and the public debate. Its funny how somehow it is a legitimate argument to question the motives of the article (“Obama Admistration”), as if that somehow guts out the substance of the article. Frankly, I took the article exactly the opposite – it seemed to go deeply into the substance and hardly seemed “motivated” by some attempt to tar Obama. And even if it did, who cares? Are the arguments accurate regardless of motive. Sounds to me like this blogger is motivated by DEFENDING the Obama adminstration. That tactic goes both ways my friend.


    August 10, 2010 at 7:57 pm

    • Thanks for the comment, Carlo. I’m amused because no one has ever described me before as a defender of the Obama Administration, but I guess there’s a first time for everything. If you read my blog regularly, you’d notice that I’ve published one criticism after another of the current administration, for instance the DOJ’s foot-dragging on adopting the prison rape elimination standards put forth by a bipartisan commission appointed pursuant to legislation signed by George W. Bush. I’m not particularly political — I study prison conditions and it’s sad to me that these issues have become so politicized, unnecessarily.

      I don’t know whether South Carolina’s program will be found by a court to fall afoul of the Constitution or any particular statute. Not yet knowing what precise arguments the DOJ might make if it does file suit, or having the full factual record that the judge would have, it’s hard to predict. But much of the commentary on this issue has gone beyond legal analysis to an endorsement of South Carolina’s policy. If we are going to have a policy debate, then it at least bears addressing that South Carolina’s approach has been rejected by the World Health Organisation, the CDC, and other medical/public health authorities and has been abandoned by almost every prison system in the U.S. None of the opinion pieces that I read explained why it is good policy for South Carolina to disregard the medical consensus. Rather, they all seemed to be using this particular issue to support a larger case against the DOJ Civil Rights Division as “out of control” without having done much research into this actual issue. You seem to disagree with my reading of the articles, which is fine; if I haven’t convinced you, I haven’t convinced you.

      Thanks again for reading and commenting.


      August 10, 2010 at 8:14 pm

  3. June 1977 busted in Peru for beating up a local politicos kid I did 90 days in a Cuzco jail out of the 1800’s. It was a fight every day not to get robbed,raped or killed.If aids was part of the equation back then the extortionists would have used that as another weapon to get the new guy to pay for protection. I’m happy you can feel all politically correct but somewhere you are giving someone a death sentence delivered by some asshole that is passing on his bad choice to a new victim,


    August 11, 2010 at 7:06 pm

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