Mandatory HIV Testing of Prisoners

 By T. Howard Stone

Last month, the U.S. House of Representatives approved H.R. 2070, a bill that would require mandatory HIV testing of federal prisoners sentenced to a period of incarceration of six or more months. The legislation, titled the "Corrections Officers Health and Safety Act of 1998," also permits the HIV testing of any federal prisoner or detainee in cases where there is a "well founded reason" to believe that such a person may have transmitted HIV to a federal employee or other non-inmate within the prison facility. The same bill is now before the U.S. Senate for consideration.

H.R. 2070 is interesting for several reasons. First, the name of the bill alone demonstrates that the primary motivation underlying the legislation is the protection of the health of non-inmates, not of the inmates themselves. While the health of non-inmates is certainly important, the fact of the matter is that inmate-to-non-inmate HIV transmission within the prison environment is unheard of. On the other hand, HIV prevalence and increases in the rate of HIV infection among prison populations has for years been higher than that among non-prison populations. There has been nothing to evidence increased or heightened risk of HIV transmission from prisoners to non-prisoners. Given these circumstances, one wonders whether H.R. 2070 panders to the HIV hysteria so often witnessed in the past, or to other election year politicking, and serves no meritorious purpose whatsoever.

Second, the bill reflects a revitalized trend towards mandatory testing of persons behind bars, a policy once considered ineffective given the uncertainties of testing accuracy, the lack of effective treatment, cost, the promise of preventive measures, and the notorious lack of privacy—including privacy of health related information—within prisons. The movement towards mandatory testing is all the more troubling given the lack of any finding articulated by Congress that H.R. 2070 is a meaningful response to a substantiated need for which no other effective alternative is available. Currently, only improvements in HIV/AIDS treatment would appear to justify mandatory HIV testing on such a large scale. However, nothing in H.R. 2070 provides any assurance that treatment now considered to be the standard of care, the use of protease inhibitors in conjunction with antiretroviral medicines, must be provided to inmates. The retort that the bill would require that prison officials provide "appropriate access for counseling, health care and support services" to inmates who test HIV-positive is so ambiguous as to be meaningless, since courts generally accept a lower threshold for quality health care in cases involving prisoners' claims of substandard care than is the rule for non-prisoner claims (see, e.g., Estelle v. Gamble, 429 U.S. 97 (1976); Ross v. Schackel, 920 P.2d 1159 (Utah, 1996)).

Finally, H.R. 2070 appears to be redundant, especially if the bill is based upon more rational motivation and reasoned analysis, such as improving access to HIV/AIDS related health care, prevalence studies, or identification of risk populations. Current federal regulations applicable to federal prisoners already provide for mandatory HIV testing in particular circumstances, including testing for high-risk (promiscuous, assaultive, or predatory) individuals, inmates with clinical indications suggestive of HIV infection, yearly random sampling of all inmates, and yearly random sampling of all inmates newly committed to federal prison (see 28 C.F.R. § 549.19 (1998)). It is not at all clear that H.R. 2070 will make any valuable contribution towards improving the prevention of HIV transmission or the care of persons with HIV/AIDS. That said, because prisoners cannot vote and do not appear on many people's short list of concerns, and because correctional officer organizations are as a rule significantly involved in the legislative advocacy process at both the state and federal levels, the outcome of H.R. 2070 in the U.S. Senate appears preordained.