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Stigmatized No Longer: The End of HIV Segregation in Alabama Prisons

JURIST Guest Columnist Margaret Winter of the American Civil Liberties Union National Prison Project discusses the recent desegregation of HIV positive inmates in Alabama prisons...

Plaintiffs representing a class of all current and future HIV-positive prisoners in the custody of the Alabama Department of Corrections filed suit in 2011 in the US District Court for the Middle District of Alabama challenging the department's HIV segregation policy.

Under the policy, the department categorically segregated all prisoners with HIV, housing them separately from all other prisoners, excluding them from a host of prison rehabilitative services, jobs and vocational training opportunities, and mental health, substance abuse, and educational programs, and publicly stigmatized them, even requiring all male prisoners with HIV to wear white armbands at all times. As a direct result of the policy, prisoners with HIV ended up serving longer sentences in prison under far harsher and more degrading conditions and with far fewer opportunities for rehabilitation in comparison to their HIV-negative peers.

Following a month-long bench trial in the fall of 2012, Judge Myron Thompson, writing for the district court in Henderson v. Thomas, declared that Alabama's HIV segregation policy violates Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.

The Henderson decision was the culmination of a 25-year struggle by the plaintiff class and the ACLU against HIV segregation in the Deep South. Beginning in 1987, the prisoners, represented by the ACLU, repeatedly challenged the segregation policy in court. Following a series of class-action trials, appeals, and remands, the US Court of Appeals for the Eleventh Circuit en banc eventually upheld categorical HIV segregation in Onishae v. Hopper.

With the Eleventh Circuit decision erecting a seemingly insurmountable res judicata bar for the Alabama prisoners and a chilling precedent in other jurisdictions, the ACLU turned from litigation to an advocacy campaign to end HIV segregation in the three states in the nation where said segregation still held sway: Alabama, Mississippi, and South Carolina. Over the course of a decade, from 2000 to 2010, the ACLU challenged HIV segregation through a combination of public education and advocacy, alliances with state legislators and clergy and direct negotiations with Department of Corrections commissioners. The campaign resulted in significant reforms in Alabama. There was a series of gradual concessions by the state which resulted in the integration of a limited number of programs and services. Alabama maintained strict, categorical housing segregation, however, and HIV discrimination continued to inflict great suffering and to interfere with every aspect of the lives of prisoners with HIV.

In 2010, the ACLU and Human Rights Watch issued a joint report on the history and consequences of HIV segregation in the Deep South named "Sentenced to Stigma" [PDF]. The report called on Alabama, Mississippi and South Carolina to put an end to HIV segregation. Mississippi responded immediately by declaring that it would eliminate HIV segregation. South Carolina refused to reconsider its policy. The Alabama Commissioner responded that he intended to make no further concessions. A year later, the ACLU filed suit with Henderson.

One of the most serious obstacles the plaintiffs had to overcome in Henderson was the res judicata bar. The en banc Onishea court had approved both of Alabama's rationales for HIV segregation: first, the risk of HIV transmission and second, the risk that HIV integration would trigger violence from the HIV-negative prisoners. The Henderson plaintiffs overcame the res judicata bar by proving material changes in fact—most notably, that recent advances in HIV treatment have not only radically changed the prognosis for HIV patients, but that they have also radically reduced the risk of HIV transmission since the virus can been suppressed by the new generation of HIV therapies. From a public health and clinical perspective, the rational way to reduce the risk of HIV transmission in prison is not through housing segregation but through effective HIV treatment and education.

Furthermore, the Henderson plaintiffs rebutted the state's claim that HIV integration would result in violence. Mid-way through the trial, the Department of Corrections Deputy Commissioner suddenly recanted his passionate defense of HIV segregation, and made the stunning admission on cross-examination that he no longer believed it served any legitimate purpose. The plaintiffs also presented the testimony of Mississippi's Deputy Commissioner of Corrections that when Mississippi integrated its HIV-positive prisoners in 2010, no violence occurred thanks to a robust education effort conducted in anticipation of the integration. The desired effect of these two witnesses was to demolish the state's security argument.

On December 21, 2012, the court entered judgment for the plaintiffs, accompanied by a 150-page opinion. The court held that Alabama's policy of categorical exclusions of prisoners with HIV from prison programs, services and activities violates the ADA, that the ADA requires Alabama to give individual consideration to each and every prisoner with HIV in all classification decisions which is consistent with its treatment of HIV-negative prisoners, that relegating prisoners with HIV to segregated housing violates the ADA's integration mandate, and that stigmatizing and "outing" prisoners with HIV by such means as requiring them to wear white armbands violates the statute's anti-discrimination mandate.

The court's opinion discussed at considerable length the historical roots and social implications of HIV segregation. The court noted "a relentless stigma adheres to HIV," in part because "HIV is most frequently found among historically marginalized populations: particularly, gay men. Prejudice against homosexuals intensifies prejudice against HIV, and prejudice against HIV becomes a proxy for prejudice against members of the gay community." Moreover, black people with HIV, already heavily over-represented in the prison population, have suffered disproportionately from HIV discrimination ... Because HIV is also more common among minorities and the poor, the stigma attached to HIV deeply implicates race and class prejudice, as well as homophobia."

Although Alabama insisted to the last day of trial that its segregation policy was benign, the court found that the policy served no legitimate purpose and was motivated by willful ignorance and animus against people with HIV that emanated from and was perpetuated by the department's top leadership. Further, the policy was far from benign, since it negatively affects virtually every aspect of the daily lives of all prisoners with HIV, causes them great suffering, and injures their prospects for successful rehabilitation and eventual re-entry into the community.

The court pointed to a number of humiliating and degrading practices by Department of Corrections that served no purpose other than to "impress upon both the prisoners and [Department's] staff that HIV-positive prisoners are different and dangerous." The court cited a "Standard Operating Procedure" providing that "[a]ny staff member who enters the cell of [a prisoner with HIV] may wear plastic or latex gloves; face mask; goggles; and protective rainwear." At the women's prison, the court found, "animus against HIV-positive prisoners has emanated from the top, particularly from its warden." When HIV-positive women began requesting access to programs from which they were excluded, the warden "stormed in" with a captain, a lieutenant, and the entire classification team, and said: "[t[he next request you write, write it to me so I can deny it personally. ... Y'all will not walk my halls and spread HIV." After touring the segregated HIV dormitory at the women's prison, the judge wrote: "[t]he court struggles to convey the depression in that room, so thick it felt possible to reach out and touch it." Similarly, the judge found that the segregated dormitory at the men's prison "evoked the feeling of a place abandoned ... The imposing cage where mentally ill prisoners with HIV are kept, allows any observer to see the activity within. The effect of a severely mentally ill man isolated within the cage, which juts into the common area ... would surely be disturbing to those both within it and without. It is evident that, while the [department's] categorical segregation policy has been an unnecessary tool for preventing the transmission of HIV, it has been an effective one for humiliating and isolating prisoners living with the disease."

The court found the requirement that male prisoners with HIV wear white armbands at all times is "profoundly stigmatizing" and constitutes "naked discrimination in the guise of neutral policy." The court quoted a prisoner's trial testimony,

I feel like it's a tag. ... Just like you put a tag on cattles. ... It's branding me. ... It's like a zoo ... or a circus ... where people just pass by and ... look at you like you some kind of exotic animal.... One time a tour came through with some young kids. ... they stopped, and told the kids, that this is where we house our HIV/AIDS patients. ... I want to say something real bad, because it touched me. ... I am one of these people that he's talking about with this virus, you know, and it hurts. It really did. It hurt.
The decision dramatically affects the lives not only of the 260 prisoners with HIV currently in the custody of the Alabama Department of Corrections, but also all future Alabama prisoners with HIV. Prisoners with HIV will now be eligible, on the same basis as all other prisoners, for the rehabilitative programs and services from which they have been excluded. Those with serious mental health needs will be eligible for transfer to a prison with an intensive mental health treatment program, rather than being housed in a cage within a segregated HIV dormitory. Those qualified for work release will be eligible for paid jobs in the community, enabling them to contribute to the support of their families while they are in prison, and to build a work-history that will help them find a job once they have served their sentences. Those prisoners with substance abuse problems will no longer be excluded from Department of Corrections' residential drug treatment programs. Otherwise qualified prisoners with HIV will be able to participate in the Department's many trade school programs, where a wide array of useful skills are taught, rather than be ware-housed in HIV-segregated dormitories. Older male prisoners will no longer be categorically excluded from the seniors' dormitory. Prisoners of faith will no longer be categorically excluded from the faith-based honors dormitory. Prisoners will no longer be categorically excluded from food-service jobs, No prisoner with HIV will be subjected to the daily indignity of being forced to wear an arm-band publicly announcing his HIV status.

The Henderson decision is the first federal court decision recognizing the rights of prisoners with HIV to individualized determination of their qualification for all prison programs, services and activities. In addition, it is the first federal court decision that affirms the rights of prisoners with HIV to the protection of the ADA's integration mandate as well as the ADA's antidiscrimination mandate prohibiting arbitrary stigmatization. The decision will dramatically affect every aspect of the daily lives of all Alabama prisoners with HIV, now and in the future. More generally, the Henderson decision is powerfully reasoned authority that extends judicial recognition of the rights of prisoners and other institutionalized persons with disabilities to the anti-discrimination and integration mandates of the ADA.

The Henderson decision affected prisoners' rights not only in Alabama but in South Carolina, the only remaining state in the nation to segregate prisoners in the basis of HIV. On July 11, 2012, the South Carolina Department of Corrections announced that in light of the Henderson judgment it had decided to eliminate its policy of HIV segregation.

On September 30, 2013, the Henderson court entered a consent decree which provided that ADOC will integrate all 29 prisons and work-release facilities throughout the state by the end of 2014 and will pay $1.3 million in attorneys' fees to the counsel for the plaintiffs. The court issued a thirty-seven page opinion in support of its order.

Margaret Winter is Associate Director of the ACLU's National Prison Project. She has litigated prison and jail reform cases in trial and appellate courts around the country and has argued and won a prisoner's rights case in the US Supreme Court. Her cases have been featured in the New York Times, the Washington Post, National Public Radio, and other national media. She was a finalist for the Public Justice Trial Lawyer of the Year Award for 2013 for her work in Henderson v. Thomas.

Suggested citation: Margaret Winter, Stigmatized No Longer: The End of HIV Segregation in Alabama Prisions, JURIST - Sidebar, Oct. 9, 2013, http://jurist.org/sidebar/2013/10/margaret-winter-HIV-segregation.php.

This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

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