AIDS and Inmates--Debate Over Testing Is Renewed

Times Staff Writers

When the state announced recently that it had conducted blind AIDS tests on prison inmates, it brought home an urgent message: An estimated 2,000 felons infected with the AIDS virus are entering California prisons each year.

The large-scale testing--in which new inmates were tested without being identified--provided the first concrete evidence of the magnitude of the AIDS problem in the state's prisons. But it also left prison officials wondering just which of the 77,000 inmates in state penitentiaries are carrying the virus.

Now, the state Department of Health Services study has renewed the debate over whether existing law should be changed to give prison authorities a free hand in testing inmates for the presence of the virus.

Bolstered by the study, Deukmejian Administration officials and other advocates of mandatory testing for acquired immune deficiency syndrome are again calling for passage of legislation that would allow authorities to order any inmate to undergo AIDS testing.

"After seeing that report, it seems imperative to me that we do mandatory testing," said Sen. Robert Presley (D-Riverside). "Otherwise, how are we going to know and how are we going to prepare for it in the prison system?"

The question of AIDS in prison has pitted corrections officials against public health experts, who are nearly unanimous in opposing mass screening and segregation of people infected with the deadly disease.

And the controversy has focused attention on a wide variety of unresolved issues in the complex field of AIDS policy.

Is mandatory testing an effective way of controlling the spread of AIDS when there is no cure for the disease? Is it justifiable to segregate inmates who are infected with the virus but otherwise healthy? When these prisoners are released, who, if anyone, should be told of their condition?

Some legislators and public health officials question whether conditions in prison are sufficiently different from those outside to justify deviating from the accepted approach to AIDS screening in society at large--that is, that testing should be voluntary, that the results should remain confidential and that there is no good reason for any form of segregation.

They also question whether the estimated $327,000 a year it would cost to test all new inmates could be spent more effectively on education programs aimed at halting the spread of the disease outside prison.

And some fear that authorizing prison officials to test inmates could lead to mandatory testing of other groups outside prison and erode confidentiality provisions that are now a part of state law.

"We can't just automatically say 'test them all' before we address these very necessary and important consequences," said Assemblyman Terry Friedman (D-Los Angeles), a key opponent of mandatory testing. "I would be much more receptive to proposals regarding narrow and justifiable testing if we had a clear law in place protecting people with AIDS from discrimination."

Transmission of the virus from one inmate to another actually is believed to be rare, according to Dr. Harold Jaffe of the U.S. Centers for Disease Control. And no corrections officer has ever been proven to have become infected on the job, Jaffe and others said.

But Sen. John Doolittle (R-Rocklin) said that "given what happens in the correctional setting, it (testing) is the only way I know to protect the other inmates. They do have intravenous drugs. They do have homosexual encounters."

Last year, a bill by the conservative Doolittle giving prison officials the power to conduct mandatory tests was approved by the Senate. But it died in the Assembly Public Safety Committee when Friedman and other liberal Democrats refused to authorize the program. This year, Assembly Speaker Willie Brown (D-San Francisco) and other Democrats have indicated they again will block a new version of the Doolittle bill unless their concerns about cost and confidentiality are resolved.

If the Department of Corrections wins passage of the measure, officials plan to segregate all inmates infected with the virus in separate facilities, even prisoners with no symptoms of the disease.

Some states that already have enacted AIDS testing and segregation programs--and even some that have not--have found themselves facing court challenges by inmates. So far, the courts have tended to defer to corrections officials, giving them leeway in deciding which course to take.

But last September, Prisoners' Legal Services of New York won a preliminary injunction barring the state from carrying out its plan to house ambulatory prisoners with AIDS or AIDS symptoms in a special ward. The lawsuit, still to be fully tried, argues that the policy violated the inmates' constitutional right of privacy.

"I think it's a major new issue in prisoner litigation," said Claudia York, a Kansas City, Mo., attorney who has been representing prisoners for 10 years. "AIDS impacts on every constitutional issue that's been raised previously, and we have a new twist on it all."

California's blind study, which tested 6,179 felons entering prison, found that 2.55% of the men and 3.1% of the women were infected with the human immunodeficiency virus (HIV), which causes AIDS. Most of the prisoners are believed to have gotten the virus through intravenous drug use.

Based on these findings, the study estimated that between 1,509 and 2,184 inmates entering prison each year are infected with the AIDS virus.

However, health officials cautioned that the study's estimates may be low because 227 felons who were believed to be intravenous drug users were excluded from the blind screening for various reasons. These inmates presumably ran a much higher risk of getting AIDS, and most likely would have pushed up the overall rate of infection in the study.

Prison officials said the results of the blind testing are in line with their earlier projections that between 2% and 4% of California prison inmates are infected with the AIDS virus.

Administration officials, citing the results of the study, say the testing and segregation of HIV-positive prisoners is necessary to protect other inmates from exposure to the disease through sexual contact or intravenous drug use, both of which occur behind prison walls even though they are prohibited.

"Prison is a situation where you're holding people in close proximity to each other and public health issues have to be treated differently than on the outside," said Steve Blankenship, Deukmejian's deputy legislative secretary. "The plan is to treat them as much like any other inmate as we can."

The Deukmejian Administration is backing the legislation by Doolittle that would require the testing of all new inmates and permit prison officials to order the testing of any other convicts.

Blankenship said the Administration also is contemplating establishment of a permanent prison testing program. All inmates found to be infected with the AIDS virus but who have not developed symptoms of the disease would be placed in separate facilities that can hold up to 800 convicts each. These prisoners would have all the privileges of inmates confined in normal units, including the opportunity to earn reduced sentences by working, Blankenship said.

Advocates of the plan contend that prisoners who are infected with the virus would benefit from being tested and segregated because they would then be eligible for any treatment that might prevent the onset of AIDS.

Inmates who develop symptoms of the disease would be placed in separate medical wards, as they are now. As of Jan. 1, there were 252 prisoners with AIDS in such units.

Upon release from prison, under the Deukmejian Administration's plan, an inmate's parole officer and family would be notified if the prisoner had tested positive for exposure to the AIDS virus.

Nationwide, it is not known what percentage of the prison population is infected. Screening in selected systems suggests the numbers vary widely--from 0.2% in the South Dakota state prisons to 17% of New York state inmates coming from New York City.

The rate of increase in AIDS cases among inmates has remained constant since 1985, according to annual surveys by the National Institute of Justice, a federal research group, and that rate is lower than the rate of increase in the general population--60% over a recent 12-month period for inmates compared to 76% for the general population.

Nevertheless, states increasingly are beginning programs of screening and segregation.

As of October, 12 states and the federal Bureau of Prisons were conducting mandatory mass screening--either of new inmates, current inmates or inmates being released. Two more had plans to shortly begin mass screening.

Far more states offer HIV testing on request or in response to violent incidents or medical symptoms. Other prison systems selectively screen inmates believed to be at high risk of infection because of intravenous drug use or homosexuality.

As for housing, 20 states segregate inmates with AIDS, according to Larry Gostin of the American Society of Law and Medicine in Boston. Eight of those also segregate inmates with pre-AIDS symptoms and six of the 20 segregate all inmates infected with the virus, even if no symptoms are present.

But the appropriateness of such practices is in hot dispute.

The National Commission on Correctional Health Care, which represents medical and law enforcement officials and inmate advocates, opposes mandatory mass screening and special housing for anyone other than those with symptoms of AIDS.

The World Health Organization, American Public Health Assn. and American Correctional Assn. have taken similar positions. Instead of mass screening and segregation, they favor intensive education of inmates and prison workers about AIDS and how the virus spreads.

The Commission on Correctional Health Care even quietly endorsed "the unorthodox conduct of making available . . . appropriate protective devices"--for example, the distribution of condoms in an attempt to ensure that the virus does not spread in prisons through illicit sex.

But some corrections officers believe education and safe-sex measures are not enough. They say infected inmates pose a risk to other inmates as well as guards, especially in the confined and volatile environment of a prison where needles and razor blades are common.

"We're not worried about casual contact," said Fred Parks, executive director of the Michigan Corrections Organization, the state prison guards' union. "It's those other kinds."

Now those questions are being argued in courthouses throughout the country.

In California, lawyers representing inmates with pre-AIDS symptoms or AIDS are challenging the conditions of their confinement and medical treatment in special wings set aside for inmates with the disease at state facilities in Vacaville, Chino and Frontera.

A federal court in Arkansas, meanwhile, rejected an uninfected inmate's demand that the state begin screening and segregation. The court ruled that the inmate's request was based on "unsubstantiated fears and ignorance" of how the virus is spread.

Other lawsuits have challenged states' policies of excluding inmates with AIDS from furloughs, conjugal visits, work release programs and some job training. Many of the pending cases allege that systems provide inadequate medical care for people with AIDS.

The arguments in many of the cases are similar.

Some lawyers argue that segregation--and any accompanying loss of traditional prison programs and privileges--violates a 1973 statute barring discrimination against handicapped people in federally funded institutions.

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