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Volume 2, Issue 3                                    University of Houston

Staff Editorial

Ignoring Alabama HIV appeal could set dangerous precedent

The Clinton administration has urged the U.S. Supreme Court not to hear an appeal in a discrimination case filed by HIV-positive prisoners in the Alabama prison system, in which infected prisoners are barred from participation in religious, educational and recreational programs with other prisoners.

The decision to segregate the HIV-positive prisoners was made last April by the 11th U.S. Circuit Court of Appeals, which cited the risk of infection when infected and non-infected prisoners are allowed to participate in the same events. "When the adverse event is the contraction of a fatal disease, the risk of transmission can be significant even if the probability of transmission is low," the court wrote in its decision.

The 15-year-old case preceded the Americans with Disabilities Act of 1990, which used the same "significant risk" defense against discrimination charges.

But the 11th Circuit Court was wrong in upholding the separation of infected prisoners, the appeal alleges. That opinion is shared by a coalition of public health and AIDS groups, which claim the court relied on "subjective fear and stigma" rather than the actual risk that would come with allowing all prisoners to engage in activities together.

If the Supreme Court takes the White House's advice and does not hear the appeal, the circuit court's ruling would stand -- not only keeping the infected Alabama prisoners from participating in programs that are available to other inmates, but also setting a precedent that could open the doors to HIV discrimination in all walks of life.

Currently, most states, as well as the federal prison system, evaluate their inmates individually and decide whether to exclude HIV-positive prisoners based on their histories and psychological profiles. Only Alabama, Mississippi and South Carolina automatically segregate the infected prisoners.

The circuit court judges stated that "the violence that is an inescapable part of prison life" may subject non-infected prisoners to HIV if they are integrated with HIV-positive inmates. That may be true, but chances are that such violent episodes aren't likely to erupt during data processing classes, high school equivalency testing and religious services -- three of the more than 70 programs in which the infected Alabama prisoners are not allowed to participate.

What is more, the HIV-positive prisoners are barred from participating in classes that teach about the dangers of using drugs and work-release programs that could shorten their terms. So in effect, the infected prisoners could serve longer terms than non-infected prisoners convicted of the same crimes.

The appeal raises an interesting question about not only the rights of infected prisoners, but also the ability of prisons to control their inmates.

"The answer to that question turns not on medical judgments about the risk inherent in certain behaviors, but on prison management judgments about the ability of prison authorities to control prisoners in various settings and programs," the U.S. solicitor general wrote in a brief to the Supreme Court.

The high court should hear the prisoners' appeal and should strike down the automatic discrimination. Decisions on whether infected prisoners should be included or excluded from prison programs should be based on individual assessments -- real risk, not "fear and stigma."

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