Hope everyone had a great holiday season. Wishing everybody a healthy, happy, and successful new year! In case you want to take a break from bowl games over the next couple of days, here is something you might read:-)

Alabama and South Carolina are the only States segregating inmates that are HIV-positive. In the Alabama situation, the ACLU brought suit saying that such a practice violated the Americans with Disabilities Act. In a 153 page opinion, Judge Myron Thompson of the northern district of Alabama agreed. There are very few opinion that run 153 pages. Even fewer that run so long but yet every page is worth reading. Such is the case with this one. With respect to this opinion, what I am going to do is break this down into three different categories. First, I will discuss the practices Alabama engaged in with respect to both men and women that are HIV-positive in their prison system. Second, I will discuss the court’s reasoning. Finally, I will mention several important policy considerations brought up by the court as well.

Basically, Alabama has a system with respect to HIV-positive inmates that involves categorical non-individualized determinations resulting in automatic placement and exclusions. The specific practices of the Alabama Department of Corrections varied a little bit depending on whether the inmate was female or male. Regardless of the gender, both systems involved categorical non-individualized determinations resulting in automatic placement and exclusions.

With respect to men, the Alabama Department of Corrections was challenged on the following practices: 1) all HIV-positive men in the prison system are sent to limestone, a facility in northern Alabama. They are sent there regardless of their individual needs and custody factors; 2) HIV-positive men have limited program opportunities when compared to men that are not HIV-positive; 3) HIV-positive men are segregated into dormitories at the limestone facility; 4) within those dormitories HIV-positive men are segregated further utilizing the building’s architectural layout; 5) HIV-positive men were excluded from other dorms at limestone regardless of whether they had any individual factors that would otherwise place them in those dorms except for being HIV-positive; 6) HIV-positive men because they were segregated into certain dormitories were excluded from critical aspects of the substance abuse program; and 7) HIV-positive men must wear white armbands regardless of which dormitory they were in (that is, HIV-positive men were segregated into two different dormitories. However, regardless of which dormitory they were in, all HIV-positive men must wear white armbands).

With respect to women: 1) all HIV-positive women inmates are housed Tutwiller; 2) women who test HIV-positive at first are put in isolation until the confirmation test comes in to confirm the initial tests; 3) HIV-positive women inmates are segregated into one dorm at Tutwiller; 4) HIV-positive women are automatically sent to isolation cells if mentally ill regardless of their actual mental health needs.

With respect to both men and women HIV-positive inmates, Alabama Department of Corrections excludes all such inmates from the food service program and their participation in work release entirely depends on viral loads and not upon the inmate’s treatment needs or functional abilities.

The court had several issues before it. First, it had a couple of preliminary issues before it, standing and whether the case was moot because Alabama represented to the court that they were going to change their practices. With respect to standing, the court held that the plaintiff did have standing because they were a person with a disability (HIV-positive- see ADAAA; see also Bragdon v. Abbott, 524 U.S. 624 (1998)). Second, the court said that the issue was not moot because the nature of the evidence was such that the court believed it quite possible that the challenged conduct could recur.

With respect to the Americans with Disabilities Act, the court reasoned as follows. First, as mentioned above, the plaintiffs clearly have a disability, being HIV-positive.

Second, the title II regulations mandate integration (see 28 C.F.R. § 35.130(d) and the court cited to Olmstead v. L.C. By Zimring, 527 U.S. 581 (1999), as well.

Third, since prison is the program, the plaintiffs were otherwise qualified. That is, the plaintiffs were capable of satisfying the essential eligibility requirements of the program with or without reasonable accommodation.

Fourth, the court goes into great detail about the medical evidence that is currently known with respect to a person that is HIV-positive and concludes that the treatment of HIV-positive people has evolved to the point where it simply cannot be said that such a person would be a direct threat automatically when integrated into the general prison population. With respect to direct threat, the court looked to the factors in School Board of Nassau County Florida v. Arline, 480 U.S. 273, 288 (1987). Those factors demand an individualized assessment, which does not occur in the Alabama prison system for inmates that are HIV-positive. In addition to the scientific evidence being what it is, the court said that the medical evidence is overwhelming that the risk of HIV transmission imprisons is minimal across the system and therefore, no direct threat could be said to exist, at least not automatically.

Fifth, the Americans with Disabilities Act demands an individualized determination. That said, the court said that Alabama does have the flexibility to determine how that individualized determination will be carried out so long as it acts in good faith to ensure that no prisoner is unnecessarily segregated because of his or her HIV positive status

Sixth, Alabama could not defend on the grounds that to redo the present programming would be a fundamental alteration as many of the systems already exist to ensure that HIV-positive inmates are integrated into the general community after an individualized determination. That is, Alabama Department of Corrections already has individual data on HIV-positive inmates with respect to viral loads, behavior, and medical needs.

Seventh, Alabama tried to argue that there would be an undue burden to change the system. Undue burden generally refers to financial costs. The court said that any undue burden was not going to apply here because the costs were not going to be unreasonable and conceivably could even decline with the integration of HIV-positive inmates into the general population.

Eighth, no legitimate purpose is served by separation of prisoners in dormitories by their HIV-positive status and by using physical structure of the building to telegraph who is HIV-positive. The court referred to this as, “irrational disability discrimination.”

Ninth, the court discussed in some detail how the fundamental alteration defense was not going to fly here. First, the court noted that not every HIV-positive inmate needs an HIV specialist all the time. Second, much of the need for specialized care could be solved through the use of telemedicine and the costs for installing such systems would not be an undue burden. Third, HIV-positive inmate could travel to other facilities as needed. Fourth, medical staff can be trained to do basic HIV-positive care and resources exist to do that at minimal costs (there were several entities offering to help train the prison staff at minimal or no costs). Finally, since the basic purpose of a prison medical system is to provide medical care to prisoners, none of the accommodations suggested by the court involved eliminating the essential aspect of the relevant activity, and therefore, no fundamental alteration exists.

Tenth, since women can’t transmit HIV through sexual contact, any direct threat defense with respect to women was far less than men, which the data revealed that for men was virtually nonexistent.

Eleventh, the prohibition of participating in food service jobs, “are obviously irrational” and contravene science (the court was appalled, to say it mildly, at some of the representations regarding staff members with respect to how HIV-positive inmates were perceived. The court said that prejudice is no defense).

Twelfth, the white armbands policy violated the broad prohibition on discrimination and the Alabama Department of Corrections justifications for the policy were not credible, were pretextual, and served no legitimate purpose. In particular, the policy meant forced disclosure of HIV-positive status and was also profoundly stigmatizing.

Policy also underlies this decision as well. Some of those points include: 1) integration may actually reduce high-risk behavior and no evidence existed that it would increase. The idea being that if HIV-positive inmates were integrated into the general population, members of the general population may actually restrict themselves from high risk behavior for fear of becoming infected; 2) segregation has devastating psychological effects. The court referred to segregation as an, “effective tool for humiliating and isolating prisoners living with the disease;” 3) Alabama Department of Corrections policies have not changed with the times and with how treatment of HIV-positive people have evolved; 4) other Southern states-Georgia, Mississippi, and Florida- have all successfully integrated HIV populations. In fact, at trial, there was testimony from people in those state that had led the integration efforts; 5) no evidence existed that non-adherence to medication would increase with respect to integrating HIV-positive inmates into the general population; 6) segregation may worsen treatment outcome since another facility may be a better option depending upon the inmates individual needs; 7) dismantling segregation will not add significant costs to the Alabama Department of Corrections and may save money in a variety of ways. For example, there would be no need to maintain extra beds in an institutional setting as is currently done if HIV-positive prisoners were integrated into the general population; 8) forced disclosure of HIV-positive status is simply wrong.

Some thoughts: First, it is a bit surprising to me that no equal protection claim was brought. The language that the court uses such as “no legitimate purpose,” “obviously irrational,” “irrational disability discrimination,” as well as a reading of the opinion in general leads to the conclusion that the court if presented with an equal protection claim would have found, even if the prisoners were in a rational basis class, that their equal protection rights were violated. Perhaps, the reason equal protection was not alleged what to avoid a sovereign immunity discussion, which as we have talked about in other blog entries, can get quite complicated (as part of the litigation of this case, sovereign immunity did come up, but discussing sovereign immunity in the context of injunctive relief is quite a bit different than discussing it in the context of suing a sovereign for damages). Second, with respect to the white arm bands, I really thought that I was going to see a reference to the Holocaust and to where Nazi Germany made Jews wear stars on their coats. Perhaps, the judge did not feel it necessary to bring in such a comment considering how thorough the opinion was. That said, it did not surprise me to see the ACLU reference precisely this in the aftermath of this decision. Finally, I could not help but be struck at the parallels of this decision to Brown v. Board of Education with its discussion of the psychological impact of segregation and its emphasis on other information, in this case medical science, to reach a conclusion.

6 Responses to Segregation of HIV-positive inmates will not fly

On September 30, 2013, Judge Thompson of the middle District of Alabama approved the settlement in the Alabama case. The settlement consists of two agreements with one being primary, enforceable by the middle district of Alabama, and the other being a private agreement, enforceable in state court. The primary agreement contains the following terms: 1) the practice of segregating HIV-positive inmates within Alabama correctional facilities is over; 2) HIV-positive inmates can now be assigned to 10 additional facilities within the Alabama Department of Corrections; 3) it ends the HIV specific restrictions on work release; 4) incoming prisoners testing positive for HIV will no longer be sent to an isolation cell; 5) the Alabama Department of Corrections will train staff, inmates, and medical providers about HIV before HIV-positive inmates are transferred to new facilities; 6) the Alabama Department of Corrections will install telemedicine units in certain facilities and will maintain an acute care unit at one of their facilities; 7) the Alabama Department of Corrections will take several steps to protect inmates medical confidentiality and will establish a zero-tolerance policy for harassment of HIV-positive prisoners. That includes ending the practice of making inmates wear armbands corresponding to their HIV status; 8) establishes a schedule for implementing these changes and provides for a monitoring and dispute resolution regime; 9) there is also a private agreement enforceable in state courts as a contract between the parties that expands the provisions of the primary agreement to all of the Alabama Department of Corrections facilities, fully desegregate prisoners with HIV, and allows the Alabama Department of Corrections to remove HIV status from prisoners nonmedical files. Both agreements expire on June 30, 2015 unless extended by the parties or the primary agreement is extended by order of the court, which would necessarily extend the term of the private agreement as well. The primary agreement also provides for the Alabama Department of Corrections to pay $1.3 million in attorneys fees and costs to class counsel.

What is interesting about the attorneys fees agreement is that in the opinion approving the settlement, Judge Thompson says that the Alabama Department of Corrections is paying a lot less in attorneys fees than he would have set considering the complexities of the case and the expertise of the attorneys involved. Nevertheless, it was a decision the parties agreed to themselves and so he would not disturb it. Also, the court noted that the case was never configured as one for seeking damages but that people objecting to the settlement were certainly entitled to seek damages if they so desired. While I would be speculating, it would seem to me that it reason the case was never configured for damages was so that sovereign immunity would not have to be dealt with. Sovereign immunity does not apply to injunctive relief.

On June 20, 2016, the Department of Justice sent a letter to the office of the Attorney General of the state of Nevada saying similar practices that the Nevada Department of Corrections were engaging in violated title II of the ADA. The letter can be found at https://www.ada.gov/

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