HIV IN PRISON
HANDBOOK: WHAT EVERY CDC PRISONER SHOULD KNOW
handbook is written for prisoners in the California Department of
Corrections, their legal advocates, and their family members. We hope it
will be useful not only for those prisoners who are learning to live
with HIV, but for other prisoners and legal advocates who want to learn
more about HIV. The field of HIV research has advanced rapidly in the
past several years and is continuing to progress further. Consequently,
the health information in this handbook tends to be more general than
specific. Current information on health education and treatment may be
obtained by writing to the organizations listed in the Appendix. In
addition, the CDC's policies are constantly changing and different
prisons have different policies. Therefore, readers should keep a
lookout for Administrative Bulletins which announce policy changes. The
Prison Law Office plans to periodically update this handbook, so feel
free to write to us if you know of a policy or health care development
which needs to be included in future versions. We have also compiled an
annotated bibliography of cases related to HIV-positive prisoners.
Please write to us if you would like a copy.
2. What are HIV and AIDS?
(Acquired Immune Deficiency Syndrome) is a disease caused by the Human
Immunodeficiency Virus (HIV), a virus that destroys the immune system of
the infected person. People with healthy immune systems are able to
defend against the numerous infectious agents living on the skin or in
the gastrointestinal tract. Certain blood cells in the body fight off
harmful germs and prevent disease. When a person is infected with HIV,
the virus slowly breaks down these natural defenses. The virus starts
killing off the T-4 cells that fight infection and causes certain other
cells to stop working properly. Eventually, the body is no longer able
to protect itself against harmful illnesses. These illnesses are called
opportunistic infections ("OI's"), because they are taking the
opportunity to infect the person whose immune system has been weakened
recently, experts have defined AIDS as this last stage of HIV infection
when someone shows symptoms of an opportunistic infection. A federal
governmental agency called the Centers for Disease Control and
Prevention now defines someone as having AIDS when his or her T-cell
count drops to below 200. No one knows for sure what percentage of
HIV-infected people develop AIDS. Experts believe that most, if not all,
HIV-infected persons will eventually progress to AIDS.
HIV infection is not the same as having AIDS. The virus can live
in someone's body for years before his or her immune system breaks down.
Many people feel or look healthy and can lead normal lives for quite
some time before they begin to show signs of infection. Yet, it is
important to remember that anyone with HIV, even people who look
and feel healthy, can pass the virus on to someone else.
3. How is HIV transmitted?
there are still many unknowns about HIV, we do know how HIV is
transmitted (how people catch it) and how it is nottransmitted.
It is what you dothat puts you at risk of being infected, not
whoyou are. HIV and AIDS affect people of every race, color, sex,
sexual orientation, social class and marital status. The virus is spread
through a direct exchange of blood, semen, or vaginal fluids between an
HIV-infected person and someone else. The virus is spread when an
HIV-infected person passes any of these body fluids to another person,
most commonly through unprotected sex or sharing dirty (used) needles,
either with drugs or tattoos. HIV may also be spread from a mother to
her unborn baby, either while the baby is being carried or by exposure
to blood during birth. The virus may also spread to a newborn baby
through breast feeding.
may be exposed to the virus (meaning they come into contact with the
bodily fluids of someone who has HIV) and remain uninfected
(HIV-negative). However, anytime you engage in an activity where bodily
fluids are exchanged with an HIV-positive person, you risk getting HIV.
The risk of transmission varies depending on which fluid types are
exchanged and into what part of the body they are introduced.
It is not
possible to tell if someone has HIV by looking at them. Someone who
looks completely healthy may have HIV, so do not assume, for example,
that it is safe to have unprotected sex with someone just because they
look fine. Also, even if someone tells you that they do not have HIV, it
is important to practice safe sex. One reason is that it can take up to
six months for someone who has been exposed to the virus to get a
positive test result. During these six months a blood test will not show
any signs of the virus, but the virus can be transmitted to someone
4. What does
transmit the AIDS virus?
widespread misunderstanding about HIV and AIDS. HIV is not spread
through casual contact. The virus is rarely found in saliva or tears,
and when it is found the concentration is too small to be infectious.
There have been no reported cases of anyone contracting AIDS from
coming into contact with an HIV-infected person's saliva or tears.
is not spread by touching, kissing, hugging, sneezing, or coughing. It
is not spread by sharing the same prison cell, cigarette, telephone,
toilet, or shower stall as an infected person. HIV is not spread in food
or on sheets. So, for example, one cannot be infected with HIV simply
from sharing a cell with an HIV-positive person. One cannot be infected
by using sheets washed by an HIV-positive laundry worker or by eating
food prepared by someone with HIV. A guard cannot be infected by
escorting an HIV-positive prisoner.
mother will not infect her child by taking care of him or her, but can
infect her child by breast feeding. There are ways to reduce the risk of
passing the virus through breast milk. Because of the many advantages to
the baby from breast feeding, mothers with HIV should talk to a health
care provider when making the decision whether or not to breast feed.
5. How can I protect myself from becoming infected?
way to eliminate the risk of becoming infected with HIV is to not do any
of the things which are known to permit transmission of the virus.
However, there are several ways you can reduce the risk of contracting
the virus. You should take the same precautions to prevent transmission
even if you have already tested positive for HIV. For example, you
should not assume that you do not have to have protected sex simply
because you are HIV positive and are having sex with someone who is also
HIV positive. This is because it is possible to become re-infected with
HIV, which can increase the amount of virus in your body, and can
increase the number of different strains of the virus in your body.
Also, even if you have tested positive for HIV, you need to prevent
transmission of other sexually transmitted viruses, such as Herpes
Simplex Virus, Hepatitis A, B, and C, Epstein Barr Virus and
Cytomegalovirus, and diseases such as Syphilis. There are no cures for
these diseases, and being infected with them will make you ill much
Prevention of Sexual Transmission
mind that the virus can be passed man to man, man to woman, woman to
man, and woman to woman during vaginal and anal sex using a penis,
fingers, fist, or a shared object, and during oral sex.
If you are
having sex (including oral sex) with a man, have him use a latex condom
which contains Nonoxynol-9 (a lubricant that kills sperm) with the
condom. Do not use oil-based products like petroleum jelly, baby oil,
and hand lotion as a lubricant because they will weaken the latex,
making a condom ineffective as protection against HIV.
If you are
having sex with a woman, be aware that HIV has been found in vaginal
secretions, in menstrual blood, and in discharge from yeast infections.
This means you or your partner should use rubber gloves for hand-genital
sex, because one's fingers may have small cuts. In addition, use a
barrier method like a dental dam for oral sex. A dental dam is a square
piece of latex that you use to cover the vagina during oral sex. You can
make your own dental dam by cutting open a condom.
Transmission through Needle Sharing
shoot drugs, make every effort to stop. Obviously this is easier said
than done, so what follows is information about how to reduce the risk
of transmission through needle sharing. HIV can be spread through
sharing dirty needles, so do not share your dirty works (needles and
other drug paraphernalia like cookers). The blood of the HIV positive
person contains the virus. Blood remains on the needle after injection
and can be spread to the next person when they use that same needle for
injection. If you do share you must clean the needle with bleach after
each person uses the needle.
the bleach into a glass. Fill the syringe with bleach. Empty the bleach
from the syringe. Repeat this four times. Then fill a glass with clean
water. Fill the syringe with water. Then empty the water from the
syringe. Repeat this procedure four times. Hot water alone will not kill
the virus; you must use bleach or alcohol.
share toothbrushes, razors, and instruments used for ear-piercing or
marking the skin with a tattoo. These personal items could be
contaminated with infected blood.
6. What are the symptoms of HIV infection?
important to know that HIV infections symptoms are the same as the
symptoms of many other diseases, and none of them is specific for HIV or
AIDS. Also, how long the symptoms last and how often they occur are very
important in determing whether the symptoms are AIDS-related. Some
people will experience symptoms when they first become HIV-positive.
Those symptoms may include swollen lymph glands, diarrhea, night sweats,
being tired every day, unexpected weight loss, fevers and rashes,
persistent white spots or unusual blemishes in the mouth, persistent dry
cough with shortness of breath, and pink, purple or brown blotches or
bumps on the skin, inside the mouth, nose, eyelids and rectum. Many
people will, however, experience no symptoms at all when they are first
infected. Some of the symtoms are similar to severe flu-like symptoms,
which is because the flu and HIV are both viruses and the symptoms are
the body's natural response to the presence of a virus.
initial onset of symptoms, many people have an extended period during
which they are relatively asymptomatic (they feel healthy).
to the symptoms noted above, these are some signs that
women may have when
they first become infected:
from having sex, like herpes and pelvic inflammatory disease
infections (such as a yeast infection) that won't go away even after
taking medicine for it;
or bumps on the genitals (in or outside the vagina or anus);
pain not during a menstrual period;
abnormal Pap smear.
for Disease Control and Prevention has defined which illnesses and
opportunistic infections determine an AIDS diagnosis. These definitions
are based primarily on medical research conducted on white men who have
AIDS or who are HIV-positive. Many chronic and severe gynecological
problems are known to commonly occur in women with HIV but are not
included in the Centers for Disease Control's definition. Consequently,
women are often not diagnosed in the early stages of the disease when
treatment is more effective.
progresses differently in each person infected with the virus. A person
may be diagnosed with AIDS when he or she develops any one of a number
of opportunistic infections, or develops "wasting syndrome," which is
unexplained weight loss of ten percent or more. The most common
opportunistic infections are pneumocystis carinii pneumonia (PCP) and
Kaposi's Sarcoma (KS). If you suffer from any of these illnesses, it
does not necessarily mean that you have AIDS, but you should see a
doctor at the prison or jail clinic as soon as possible. HIV weakens
your immune system, but it is the opportunistic infections that actually
lead to death.
for Disease Control and Prevention has divided the medical definition of
HIV disease into four categories - Group I: Acute Infection, Group II:
Asymptomatic HIV Infection, Group III: Persistent Generalized
Lymphodenopathy, Group IV, Other HIV Disease.
California prison regulations, people in Group IV can only be housed at
institutions where continuing hospital care is available.
What kind of treatment is there?
presently no known cure for AIDS.
However, there are many new HIV medications available that allow some
people with HIV to live long healthy lives.
If your tests show that you are infected with HIV, request that the
doctor at the jail or prison order a more thorough test of your immune
system, including a CD4 (T-cell) count and a measure of your viral load
(the amount of HIV in your body). There is evidence that early
treatment with HIV medications can keep you symptom-free longer and
delay the onset of AIDS. These tests should be done every six months in
order to follow the progress of the virus in order to develop
appropriate medical treatment and to assess whether the treatment is
HIV-positive people have lived for a long time before becoming seriously
ill with an AIDS-related infection. It is important to take care of
yourself, as difficult as that task can be within the walls of a prison
or jail. The organizations at the end of this manual can provide you
with information and free subscriptions to newsletters that will help
you make a decision about HIV treatment and how to stay healthy.
is a name for treatment with drugs that help prevent HIV from
reproducing and infecting cells in the body. This type of treatment is
effective in slowing the progression of HIV disease in many people.
Three general types of antiretroviral drugs are currently available:
reverse transcriptase inhibitors (NRTIs)
- this group includes zidovudine (AZT, ZDV, Retrovir); didanosine (ddI,
Videx); zalcitabine (ddC, Hivid); stavudine (d4T, Zerit); and lamivudine
Non-nucleoside reverse transcriptase inhibitors (NNRTIs)-
this group includes nevirapine (Viramune) and delavirdine (Rescriptor).
- this group includes saquinavir (Invirase, Fortovase), ritonavir
(Norvir), indinavir (Crixivan), and nelfinavir (Viracept).
writing the most common treatment is triple combination therapy, which
is a combination of three antiretrovirals, including at least one
protease inhibitor. Recent studies show that most people respond well to
the triple therapy, meaning that their viral load reaches and sustains
an undetectable level. People do experience drug failure (the drugs do
not have any effect on the viral load or T-cell count). This is usually
because they had taken another drug, such as AZT, before beginning the
triple therapy, or because they develop a resistance from not following
the medication instructions.
to take the medications according to the instructions. It is important
to keep the protease inhibitors at the same level in your body. Taking a
"drug holiday" (not taking the medication for several days or more) or
skipping doses can be very dangerous. Missing one or more doses can
allow the virus to become resistant, meaning that the virus changes its
form in order to avoid the effects of the medication.
instructions require that one medication should be taken in the morning
and at bedtime. Sometimes you must take a medication with a meal or
either before or after a meal. This is often very difficult to do within
the structure of the prison. One of the most common complaints among
HIV-positive prisoners is that they want to take their medications as
instructed but are unable to do so either because their prescriptions
are not refilled on time, or because their daily schedule does not
coincide with their medication schedule.
is another issue to be aware of when taking HIV medications. People
react to medications in different ways. Some people will have mild
effects or no symptoms at all, while other may have many side effects or
severe symptoms. Some of the more common side effects are listed below.
Keep in mind that you may not suffer any of these side effects, and even
if you it may only be temporary. Also, you should know that many of
these side effects are also symptoms of HIV, and you should talk to a
doctor or nurse when deciding whether to start taking HIV medications.
The following is a list of possible side effects:
(loose bowel movements)
Numbness/tingling sensations (especially the fingers/hands,
toes/feet and around the mouth)
Problems (rash or dry, itchy skin)
Problems (mouth ulcers or sores, infections with dark red or white
Pain (stomach aches)
How do I know if I have been infected with HIV?
The only way
to know if you have been infected with HIV is to take a blood test
called the HIV antibody test. When someone is infected with HIV their
body develops antibodies which are found in the blood. Antibodies are
proteins that the body forms to fight off diseases when they enter the
bloodstream. But HIV antibodies cannot protect your body from HIV
because HIV changes and reproduces too fast for the antibodies to catch
What does a positive
test result mean?
test result means that you have been infected with HIV. This means that
you are "HIV-positive" (HIV+) or "HIV-infected." An HIV-positive result
does not necessarily mean you currently have AIDS, and does not predict
whether you will go on to develop symptoms of AIDS, but you are capable
of spreading it to others. If you test positive you should seek medical
treatment as soon as possible.
What does a negative
test result mean?
test result means that no HIV antibodies were found in your blood.
Because there is a delay of up to six months between the point of
exposure and when antibodies are detected, a negative test does not
necessarily mean that you have not been exposed to HIV. If you have had
unprotected sex or shared needles during the past six months you should
get tested again in three to six months. Even if you get a negative
result, if you have already been exposed to HIV you are capable of
Should I be tested?
There are many
factors to consider when deciding whether to be tested for HIV. Because
of the many challenges facing people with HIV who are incarcerated,
whether or not to be tested is a different question for someone in
prison that for someone outside.
One factor to
consider is how long you will be in prison. If you will not be in for a
very long time you might want to consider waiting until after your
release. There are many outside services available to HIV-positive
people. And if you wait to be tested you will not risk facing
discrimination as an HIV-positive prisoner. However, if you are
HIV-positive you can start planning for your treatment and learning
One reason to
be tested is that the sooner you know the sooner you can plan what to
do. Generally, early treatment of HIV infection can keep you healthy for
a longer time, although there is also no guarantee that you will get the
treatment you need while incarcerated. There are now medications which
are not cures to HIV or AIDS, but are effective in slowing down the
progress of the virus. The sooner that an HIV-positive person starts
taking these medications the more chance there is of affecting the
growth of the virus.
On the other
hand, there are some reasons why you might not want to be tested while
in prison. One reason not to be tested is that if you get a positive
test result your HIV status may not be kept confidential. The law
requires that everything about the testing procedure and the results be
handled confidentially. In other words, only the prisoner and medical
staff are supposed to know that the prisoner is being tested and what
the results are. Prison officials claim that the testing is kept
confidential, but some prisoners who decide to be tested often find that
other prisoners and guards find out about their HIV status. Sometimes
people assume that someone who has an HIV antibody test is HIV-positive.
Unfortunately there are many misconceptions about HIV and people with
HIV. As discussed above, HIV cannot be transmitted through casual
contact, but many people believe that it can. As a result HIV-positive
prisoners may be discriminated against.
also be aware that once you have a positive test result you may be
transferred to one of the prisons designated to house HIV-positive
does not have a mandatory testing policy for all prisoners. It is
possible, however, that the California Department of Corrections will
require all prisoners to be tested at some point in the future.
Currently there are over 1,500 prisoners in the California prison system
who have tested positive for HIV. Prison medical staff estimate that
between 5,000 and 8,000 prisoners (about 3% to 5% of the total prisoner
population) could carry the virus. This estimate is based on the
prevalence of HIV in the general population. (Marcus Nieto, California
Research Bureau, "Health Care in California State Prisons," Prepared at
the Request of Senator Richard Polanco, Chairman, Joint Committee on
Prison Construction and Operations (June 1998).) Some prisoner advocates
estimate that there are least 15,000 HIV-positive prisoners in
California, most of whom have either not revealed their HIV status to
the prison or do not themselves know that they are HIV-positive.
How do I go about getting tested?
contact the medical clinic at your institution, which should order a
confidential test for you. The medical staff uses only new, sterile
needles for drawing the blood, so you will not get AIDS by taking the
test. If you choose to be tested, you may have to pay for your test.
However, if you are a California state prisoner, the prison cannot
charge you money for an involuntary test (see below for information on
involuntary testing). Under California Penal Code section
7514, the prison system must pay the testing expenses,
unless the test is voluntary and not specifically approved by the Chief
Medical Officer (CMO). If you have any problems, you should contact your
local legal aid office or one of the specialized legal offices that
focuses on helping people with AIDS (see attached Resource list).
If you are
tested, you should ask for information both before and after the test
about what the results mean. Administrative Bulletin 91/8 states that
the CMO or a staff member trained in HIV testing must provide counseling
to prisoners before and after they are tested for HIV. Additional
counseling is required if requested by the prisoner. The HIV counseling
must follow guidelines laid out in the "Pre- and Post-Test Counseling
for Inmates Undergoing HIV Antibody Testing," Office of Health Care
Services, December 1990. Despite these guidelines, prisoners have
reported that no pre- or post-counseling has been made available. If
this happens to you, you might want to file a 602 and contact outside
agencies, such as Project Inform (see Resource list). If you have
someone on the outside who is helping you, they could call the AIDS
Hotline for more information. The AIDS Hotline number is:
1-800-342-AIDS. Hours: 9am - 9pm weekdays, 11am - 5pm weekends. This is
a toll-free call.
continue high-risk behavior, such as sharing needles or having
unprotected sex, should consider being tested regularly. Of course, it
is best to stop these dangerous practices to lower your risk of
infection and the risk of infecting others.
What if I am pregnant and want to be tested?
If you are
pregnant, you can still take the test. If you are infected and decide to
continue with your pregnancy, your infant will probably test
HIV-positive for several months after birth because of the antibodies in
your blood. The chances that an infant who tests HIV-positive will
remain HIV-positive and develop AIDS are less than 50%,
but the child should be repeatedly tested to confirm the
status of his or her health.
Can prisons and jails force me to be tested?
does not require mandatory testing for all prisoners. However,
incarcerated persons may be required to be tested under the following
Prostitution Conviction - Penal Code § 1202.6
requires that individuals convicted of soliciting or engaging in
prostitution be tested. Cal. Penal Code § 1202.6.
AIDS - Penal Code § 7512.5
Medical Officer (CMO) of a California state prison may order you to take
an HIV test if he or she concludes that you have shown clinical symptoms
of AIDS or AIDS-related complex as recognized by the Centers for Disease
Control. Cal. Penal Code § 7512.5; Cal. Welfare and Institutions Code
§ 1768.9. A prisoner may not appeal this decision. Cal.
Penal Code § 7512.5.
Enforcement Employee Exposed - Penal Code § 7510, 7511
enforcement employee who believes that he or she came into contact with
bodily fluids of a prisoner must report the incident. Cal. Penal Code §
7510. The employee must first file an incident report with the State
Department of Health Services within two days of the incident (this time
period may be waived by the CMO). The Chief Medical Officer may, within
five days, order an HIV test of the prisoner if he or she finds that
"there is a significant risk that HIV was transmitted." See Cal. Penal
Code § 7511 for factors the CMO shall consider in making this decision.
of High Risk Behavior - Penal Code § 7516
officer or staff person may file a written report when he or she
observes or is informed of a prisoner engaging in an activity which
could result in the transmission of HIV. Reportable activities include,
but are not limited to: (1) sexual activity resulting in exchange of
bodily fluids; (2) IV drug use (using a needle or syringe to inject
drugs); (3) incidents involving injury to inmates or staff in which
bodily fluids are exchanged; (4) tampering with medical and food
supplies or medical or food equipment; and (5) tattooing among
prisoners. Cal. Penal Code § 7516(b). The CMO may investigate the report
and if he or she concludes that "the situation reported caused the
probable exchange of body fluids in a manner that could result in the
transmission of HIV," he or she shall require that the prisoner be
tested. Cal. Penal Code § 7516(5)(c). This order is appealable (see
are no documented cases of HIV transmission through biting or spitting,
HIV-positive prisoners in
other states have been charged with or threatened with
prosecution for criminal assault and attempted murder for biting prison
Another Prisoner - Penal Code § 7512
may request that another prisoner be tested for HIV if he or she has
reason to believe that he or she came into contact with the bodily
fluids of that prisoner. Situations where this might occur include, but
are not limited to, rape or sexual contact with a potentially infected
inmate, tattoo or drug needle sharing, an incident involving injury in
which bodily fluids are exchanged, or confinement with a cellmate under
circumstances involving possible mingling of bodily fluids. Cal. Penal
Code. § 7512.
How do I appeal an order to be tested for HIV?
days of receiving a report or request, the Chief Medical Officer must
issue a written decision stating his or her reasons for requiring or not
requiring the prisoner to undergo HIV testing. The CMO cannot order a
prisoner to be tested unless "considering all of the facts and
circumstances there is a significant risk that HIV was transmitted."
Cal. Penal Code §
have been ordered to submit to testing under California Penal Code
sections 7511, 7512, and 7516 have the right to appeal the decision to a
three-member panel and have a closed hearing on the matter. Cal. Penal
Code § 7515. The appeal must be filed within three calendar days of
receipt of the CMO's decision.
The people who
sit on this panel are: (a) the CMO who made the original decision; (b)
a physician or surgeon
who has knowledge of
HIV and is selected by the CDC; and (c) a physician or
surgeon who has knowledge of HIV and AIDS, who is selected by the State
Department of Health Services, and who is not under contract or on the
staff of the prison. Cal. Penal Code §7515(b).
The panel decision may be appealed to the Superior Court by
the prisoner if the decision requires testing or by the reporting
correctional officer if the decision does not require testing. Cal.
Penal Code §
argued that mandatory testing is unconstitutional on a number of
grounds, including the Fourth Amendment prohibition against unreasonable
search and seizure, the First Amendment right to privacy, the due
process clause of the Fifth and Fourteenth Amendments, the First
Amendment right to free exercise of religion, and the Eighth Amendment
prohibition against cruel and unusual punishment. These approaches have
not been successful for the most part because courts have consistently
deferred to the policy decisions of prison officials with respect to
this issue. See, e.g., Walker
v. Summer, 8 F.3d 33 (9th Cir. 1993).
How reliable are the test results?
test result is no guarantee that you are not infected with the HIV
virus. In other words, you may test HIV-negative and still be infected
and therefore capable of passing the virus to others even if you test
HIV-negative. The antibodies that develop in reaction to the HIV virus
usually take six to twelve weeks to become detectable, but may take up
to six months. In other words, there is a lag time between when a person
is infected and when he or she would test positive.
also be aware that due to testing procedures it is possible, although
extremely rare, for you to get a false positive (meaning your test comes
back HIV-positive but you actually do not have the disease). It is a
good idea to get a second test to confirm an HIV diagnosis.
Who will be informed about my positive test result?
prison officials claim that the testing procedure and notification of
results are handled in a confidential manner. Unfortunately, information
does sometimes circulate by unnecessary disclosure to the staff,
administrators, and other prisoners. Many prisoners say that they are
afraid to take the test because prisoners with HIV or AIDS are subjected
to discriminatory treatment and harassment.
requires that prisoners who have AIDS or HIV infection be identified to
all employees and medical personnel at a prison or county jail who have
or may have contact with them. Cal. Health and Safety Code § 199.99(c).
Health and Safety section 199.99(e) provides that any unauthorized
disclosure of a prisoner's HIV status constitutes a misdemeanor.
When you are
released from a state correctional institution, your parole officer is
notified if you have tested HIV-positive or if you have been diagnosed
as having AIDS. Cal. Penal Code § 7520. Your parole or probation officer
is responsible for seeing that, either through your own physician or
through the county health department, you are made aware of AIDS
counseling and treatment available in your area. Parolees who test
positive and do not notify their spouses of their diagnosis should be
aware that California law permits the institution to instruct either the
prisoner's own doctor or the CMO to disclose this information to the
spouse. Cal. Penal Code § 7521(a).
If I have tested as HIV-positive, will I be placed in a separate prison
1991, the California Department of Corrections began implementing a
housing policy under which all prisoners known to be infected with HIV
would be housed in either "designated general population housing" or
"closed units" (see Administrative Bulletin 91/29, "Housing Policy for
Identified HIV-Infected Inmates," October 22, 1991). The CDC defines
designated general population housing as "specified housing area(s)
located within the overall general population housing of an institution
which will house regular general population inmates and/or HIV-infected
inmates." In practice, HIV-positive prisoners are usually housed in a
separate housing unit from HIV-negative prisoners, but are able to eat
with the rest of the general population and to participate in general
population programs. Prisoners who officials believe have engaged in
high-risk behavior are placed in closed units where they remain
segregated from the general population at all times.
prisoners who are known to have HIV or AIDS are housed at the California
Medical Facility at Vacaville, California State Prison at Corcoran,
California Men's Colony in San Luis Obispo, and California Institution
for Men in Chino. There is currently a plan to move many of the
HIV-positive prisoners at Corcoran who are not in the SHU to New Folsom
(California State Prison - Sacramento). It is unclear when this will
happen, but the Office of Health Care Services has said it will likely
be after January 1, 2000. Because New Folsom is not a
wheelchair-accessible prison, those HIV-positive prisoners who use
wheelchairs might not be transferred to New Folsom. Female prisoners
with HIV and AIDS are usually housed at the Correctional Institution for
Women in Frontera or Central California Women's Facility.
officials commonly justify their policies segregating HIV-positive
prisoners on the grounds that segregation helps prevent HIV
transmission, helps prevent violence against HIV- positive prisoners,
and assists prison medical staff to provide medical care for those
prisoners who have HIV-related illnesses.
Are there advantages to having HIV and AIDS prisoners separated from
has not always ensured that prisoners with HIV and AIDS receive better
medical care. Some prisoners have reported that their medical care has
gotten worse since they tested HIV-positive and were transferred to an
HIV-designated facility, such as Corcoran. Others, including many
prisoners at CMF, feel their medical care has improved.
The fear of
being placed in an AIDS unit and being stigmatized by this
identification discourages many prisoners from volunteering to be
tested. Residents of these units are sometimes subject to harassment and
discrimination because of their medical status. Since HIV is transmitted
only through person-to-person exchange of blood, semen, or vaginal
secretions, and not through casual contact, we believe that it is not
necessary to quarantine all people who test HIV-positive for the
protection of people who are HIV-negative.
HIV-positive prisoners prefer to be housed separately. This is so that
they are not in close contact or cellmates with HIV-negative prisoners
who might treat them negatively because of their HIV status. Some
HIV-positive prefer to keep their HIV status a secret when they are
housed in the general population. However, if they are on the triple
combination therapy this can be very difficult (see discussion, above,
on HIV treatment). The difficulty of keeping one's status secret can be
very stressful. Because having stress makes it harder for the body to
fight infection people with HIV should avoid stress as much as possible.
For some people this is a factor in favor of segregated housing.
Do prison officials have the power to exclude HIV-positive prisoners
from different programs and services available at the prison?
state courts have generally upheld the right of prison officials to deny
prisoners access to certain programs and privileges, when the policy is
based on legitimate medical, safety, and institutional security
concerns. In California, HIV-positive prisoners are generally allowed to
participate in most prison programs. One exception is that HIV-positive
prisoners have at times not been allowed to have food service jobs at
the California Medical Facility at Vacaville.
Gates v. Rowland, 39
F.3d 1439 (9th Cir. 1994).
prisoners are allowed to have contact visits with their parents,
spouses, siblings, and children. HIV-positive prisoners can also have
overnight visitation with all relatives listed above, except spouses,
once the visitors are approved. Minor children must be accompanied by an
adult. An infected prisoner who applies for such an overnight visit must
sign an authorization to disclose their HIV status to the accompanying
adult, the parent, or legal guardian of the child, and the child(ren)
who may participate in the visit. Officials contend that public health
considerations justify prohibiting prisoners with HIV from having
overnight visits with their spouses.
HIV-positive prisoner won the right to have a family visit with his
wife. He charged that the CDC had denied him the right to participate in
the family visiting program due to his disability (HIV-positive status),
in violation of the Americans with Disabilities Act, 42 U.S.C.§ 12132,
and Section 504 of the Rehabilitation Act of 1973. As a result of the
lawsuit the prisoner and the CDC entered into a settlement agreement
which allowed the HIV-positive prisoner to have conjugal visits with his
wife, but did not affect the general rule, meaning that other
HIV-positive prisoners are still not allowed to have conjugal visits.
Administrative Bulletin 91/28, qualified prisoners with HIV may not be
excluded from work furlough facilities based solely on their HIV status.
Prisoners who require only routine medical monitoring and are within 120
days of parole may participate in work furlough. However, where
prisoners have been denied access to an employment training program or
other programs, courts have generally ruled in favor of the correctional
system, citing institutional safety.
Do prisoners have the right to receive medical treatment for HIV/AIDS?
provides HIV medications, including protease inhibitors, to most
HIV-positive prisoners who have symptoms related to HIV and/or have a
low T-cell count or high viral load.
have the right to refuse HIV medications. Some HIV-positive prisoners
have refused medications because they want to avoid the side effects,
which can be very unpleasant. Many feel that the medical staff does not
take their complaints of side effects seriously. Another concern is that
medication treatment will be interrupted when they are transferred from
one facility to another, or when other administrative decisions and
delays in getting medication renewals interrupt treatment. This is a
valid concern, because if you begin taking an HIV medication and then
stops taking it, that medication and certain other medications may no
longer work for you. Prisoners report problems with regular availability
of HIV medications and the lack of monitoring for side effects by
Penal Code section 3502.5 prison physicians can prescribe to
HIV-positive prisoners and prisoners with AIDS an "investigational new
drug" if the doctor thinks access to that drug is in "the best medical
interest of the patient, and the patient has given informed consent."
officials cannot absolutely refuse to provide necessary medical care to
prisoners. Such "[d]eliberate indifference to [a prisoner's] serious
medical need" would amount to cruel and unusual punishment under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976). The
finding of a constitutional violation turns on whether the prisoner was
the victim of deliberate indifference. It is often difficult for
prisoners to prove that the prison administration's delay or
interference in responding to their medical needs meets the "deliberate
indifference" standard. Deliberate indifference basically means knowing
that the prisoner faces a substantial risk of serious harm and
disregarding that risk.
of Medical Care - Title 15
Below is a
summary of Title 15 of the California Code of Regulations sections 3350
to 3359, which describes prisoners' rights to medical and dental care.
You should have been given the full text of Title 15 when you came to
prison. It can also be found in the California Code of Regulations in
your law library. Each section below also includes our comments and
suggestions about the regulations.
states that the CDC shall only provide inmates medical services which
are medically necessary, and treatment which the CDC's studies have
shown to be effective. Cal. Code of Regs., tit.15, section 3350. The
treating physician will decide if a treatment is effective. "Medically
necessary" means health care services that are determined by the
attending physician to be reasonable and necessary to protect life,
prevent significant illness or disability, or alleviate severe pain.Cal.
Code of Regs., tit.15, section 3350(b)(1). "Severe pain"means a degree
of discomfort that significantly disables the patient from reasonable
independent function. "Significant illness and disability" means any
medical condition that causes, or may cause if left untreated, a severe
limitation of function or ability to perform the daily activities of
life or that may cause premature death.
believe that they are not receiving adequate medical care should file a
602. When filing a 602 regarding medical care, it is important for
prisoners to keep in mind the above limitations on the medical
conditions that the CDC will treat. For example, simply writing in a 602
that you want pain medication for severe pain is unlikely to succeed.
However, if your pain is so severe that you cannot sleep, walk, attend
programs, or eat, you should write that in your 602, since that
information might be more likely to convince the CDC that pain
medication is medically necessary.
Sick Call -
is required to provide scheduled times and locations for general
population inmates for sick call. A medical doctor, registered nurse, or
medical technical assistant (MTA) shall make daily visits to each
nongeneral population housing unit to provide medical attention to
inmates unable to use the sick call services provided for general
population. Staff conducting sick call screen medical problems and
requests for medical appointments to determine if further medical
attention is required. A facility physician shall visit each specialized
housing unit at least once each week.
have reported that they have been sick in their cells for days without
ever seeing an MTA or for weeks without seeing a doctor. This is a
violation of section 3354(e) and prisoners should file a 602 if this
Refuse Treatment - §3351
have been determined to be mentally incompetent, the prison cannot force
you to take medication or to receive medical treatment. They can,
however, do this if you have tuberculosis or if there is a medical
You may want
to prepare a "Durable Power of Attorney for Health Care." A Power of
Attorney is a document in which you can give permission to someone you
trust, such as a family member, to make health care decisions for you if
you are unable to make them for yourself, such as in an emergency or if
you are unable to speak. On the Power of Attorney form, you can write
your desires regarding life-prolonging treatment. For example, some
people prefer that extreme measures such as surgery not be taken to save
their lives in an emergency or do not want to live attached to life
Treatment Guidelines for Medical Care of HIV-positive prisoners
In addition to
the guidelines for medical care in Title 15, there are general CDC
guidelines for the treatment of HIV-positive prisoners. The Health Care
Services Division of the CDC issued a memo to all Chief Medical
Officers, Health Care Managers and Public Health Designees on June 15,
1999, with the "Guidelines for the Use of Antiretroviral Agents in
HIV-Infected Adults and Adolescents," (May 5, 1999). The memo simply
states that the Guidelines "are valuable references for patient care."
were developed by a panel that is part of the U.S. Department of Health
and Human Services. It provides recommendations for antiretroviral
therapy, including when to start treatment, what drugs to initiate, when
to change therapy, and therapeutic options when changing therapy. The
Guidelines recommend that treatment be offered to individuals with fewer
than 500 CD4 T cells or with a viral load greater than 10,000 (bDNA
assay) or 20,000 (RT-PCR assay) (ask your doctor which assay is used).
If the person does not have any symptoms of HIV, the doctor and patient
must weigh the risks and benefits of beginning treatment. The most
recent studies have shown that the most effective way of reducing the
amount of HIV in a person's body is:
protease inhibitor (such as Crixivan, Norvir, Saquinavir, or
Viracept) plus two nucleoside analogue reverse transcriptase
inhibitors (NRTIs such as AZT, ddI, ddC, drT, 3TC, and ABC), or
(a non-nucleoside reverse transcriptase inhibitor - NNRTI) two
plus ritonavir plus 1 or 2 NRTIs.
HIV RNA levels
(viral load) are expected to decrease 10-fold at eight weeks and become
undetectable (less than 500) at 4-6 months after you begin taking the
medication. If the viral load is greater than 500 at 4-6 months, it
means the therapy has failed. At least two of the medications used
should be switched. However, it can be very difficult to find another
medication that works when one treatment combination has failed.
If you know
somebody on the outside who has Internet access, you can get a copy of
the Guidelines by printing them out from the HIV/AIDS Treatment
Information Service website at
What rights do prisoners have to receive HIV education and counseling?
California Penal Code section 5008.1, the California Director of
Corrections is supposed to provide all California state prisoners with
information about how to avoid contracting the HIV virus. The Director
of Corrections must provide all prisoners who are within one month of
release or being placed on parole with information about agencies and
facilities that provide testing, counseling, medical, and support
laws that provide for AIDS counseling and education in California's
state prisons and county jails, many prisoners with AIDS do not receive
pre-release planning or follow-up care. Some of the AIDS support groups
on the outside have been listed in the back of this booklet. You are
encouraged to contact them for help and support.
Can I be released from prison early because I have AIDS?
There are two
different provisions under California law for the early release of
terminally ill prisoners. The first is commonly known as
compassionate release. Under Penal Code section 1170(d), the trial
court judge can recall the original sentence and impose a lesser one.
The court can do this on its own motion if done within 120 days of the
date of commitment, and can do it at any time if recommended by the
Director of Corrections or the Board of Prison Terms. If the director or
the board make a positive recommendation to the trial court the court is
required to hold a hearing within ten days to consider whether the
prisoner's sentence should in fact be reduced or recalled. This
provision does not apply to prisoners serving a sentence of death or of
life without the possibility of parole. In order to recall a prisoner's
sentence, the court must find both that the prisoner is "terminally ill
with an incurable condition caused by an illness or disease that would
produce death within six months, as determined by a physician employed
by the department," AND that "the conditions under which the prisoner
would be released or receive treatment do not pose a threat to public
safety." Cal. Penal Code § 1170(c)(2).
or someone acting on his or her behalf may make a request to the CMO at
the prison or to the Director of Corrections to be considered for a
reduced or recalled sentence based on terminal illness. For prisoners
with determinate sentences the Director of Corrections shall makes a
recommendation to the court within 30 days of the request.
the second provision under California law permitting the early release
of terminally ill prisoners, is granted by the governor, but has so far
not been granted to any prisoner with AIDS in California. "[The State
Governor's office] does not consider applications of executive clemency
for individuals currently under sentence except on grounds of either
extreme and unusual hardship or innocence. And usually only upon the
recommendations of the Board of Prison Terms, the District Attorney and
the sentencing judge." (Letter from Patricia C. Esgro, Deputy Legal
Affairs Secretary Office, State of California to Carrie Kojimoto (May
requesting clemency based on extreme hardship must document unusual and
compelling justification, such as a serious medical condition arising
after sentencing. In addition, all available judicial remedies must
first be exhausted before consideration by the Governor's Office.
Prisoners or their attorneys should contact the Governor's Office to
request executive clemency. Once a request has been made, the
commutation review process begins, with a background investigation by
the Board of Prison Terms, followed by a detailed review by the
How do I complain when the prison has violated my rights?
feel their rights are being violated should immediately file an
administrative appeal. This is a written complaint you prepare on an
Inmate/Parolee Appeal Form known as a "CDC 602." Follow the instructions
in small print carefully. Part A of the form asks you to describe your
problem. Briefly state your problem and describe relevant events in
chronological order. Part B of the form instructs you to identify what
solution you are seeking. Attach any supporting documents. Keep a copy
of the appeal and a record of when you submitted it.
the CDC 1824 - Reasonable Accommodation or Modification Request - is
specifically for disability issues. HIV is considered a disability under
the Americans with Disabilities Act, (ADA) a federal statute that bans
discrimination against people with disabilities. If you feel you are
being discriminated against because of your HIV status (for example, you
are being denied work, access to the law library, etc.) you should file
a Reasonable Modification or Accommodation Request form, which is
commonly referred to as an 1824 form. This form can also be used for
discrimination based on other types of disabilities, such as if you are
unable to walk, or have a hearing or vision impairment. The form is used
to ask that the CDC make a reasonable modification to a policy or
decision so that you can participate in programs and services that other
non-disabled prisoners benefit from.
The Prison Law
Office brought a class action lawsuit against the CDC under the ADA. The
case is called Armstrong v.
Davis (formerly known as
Armstrong v. Wilson)
and the plaintiffs includes prisoners and parolees with mobility
(walking), hearing, vision, learning, and kidney impairments. If you
have one of these impairments, you are automatically covered by the
Armstrong order. Even
if you are HIV-positive you are not covered unless you also have one of
these impairments. In 1996, the Prison Law Office won a settlement in
which the CDC was found to be violating the ADA. A copy of the Remedial
Plan, a document which spells out what the CDC has to do for disabled
prisoners and parolees, should be in your law library.
covers only discriminationon the basis of a disability, and does
not address medical problems such as the need for physical therapy or
the need for a hearing aid. Examples of problems which are covered
include not being able to go the yard because there is no ramp for your
wheelchair, or not being able to understand the announcements on the
P.A. system because you have a hearing impairment. CDC's failure to
provide you with a specific type of medical care or medical appliance is
not necessarily covered by
If you are
having structural access problems (for example, you can't get into a
program area because you use a wheelchair) or programming problems (for
example, you can't participate in school because there is no sign
language interpreter) or other discrimination on the basis of your
disability, we can try to help solve these problems. However, you first
need to fill out an 1824 form to try to resolve the problem. If your
1824 is denied, you should appeal the decision and send copies of any
denials to the Prison Law Office to see if we can help. The Prison Law
Office also has an informational packet called, "Your Rights Under the
You may know a
sympathetic doctor or other medical person, or legal advocate on the
outside whom you can contact if you feel that you have been mistreated.
That person could ask the prison or jail administration about your
medical status. You should also consider contacting your local
legislator's office for assistance in appealing this conduct.
Who should I contact if my problems are not being resolved through an
above, if you believe that your rights have been violated by the CDC you
should first file a 602 or an 1824. If you have filed appeals and
pursued them to the Director's Level and still are not satisfied you
have a few options. Please see the page on
requesting state agency investigations of CDC actions.
Can I file a lawsuit to challenge violation of my rights?
law, the Civil Rights Act allows a prisoner to sue state officials for
violation of federal constitutional or statutory rights. (See 42 U.S.C.
1983.) These suits are known as "civil rights" or "section 1983" actions
and can claim physical injuries or other harm. The prisoner can seek
money damages and injunctive relief (a court order for the prison to
change its policy or decision). Whether a prison official can be sued
for money damages under the federal Civil Rights Act depends on the
facts of each individual case. There are a few very important
requirements to be aware of when filing civil rights actions.
The statute of
limitations (time limit) for filing civil rights lawsuits requires that
the lawsuit be filed within one year from the date accures (generally,
the date of the event or incident which caused the injury, or the date a
person finds out that an injury has been suffered). However, unless a
prisoner is imprisoned under a sentence of death or life, the one year
time limit is suspended during the imprisonment, for up to two years.
Litigation Reform Act §§ 803 - 809 imposes significant requirements on
litigation brought by individual prisoners. 42 U.S.C. § 1997e. You
should read these provisions very carefully. One example is the
"exhaustion" requirement. If you have a complaint about prison
conditions, including any issue discussed in this manual, the first step
is to file an administrative appeal on a 602 or 1824 form, as explained
above. If your 602 or 1824 is denied, you must appeal to the next level
of review until you complete the Directors Level. This rule is called
the "exhaustion of administrative remedies requirement" and applies to
claims brought by prisoners for violations of federal law. (42 U.S.C. §
1997(e)(a).) It is very important to keep copies of all grievances you
file and their responses. If you do not have these documents, the court
may dismiss your complaint because you have failed to show proof of
meeting the exhaustion requirement. In addition, many attorneys and
advocacy groups will not help you unless you have already unsuccessfully
tried to resolve the problem through the grievance process.
to the Exhaustion Requirement
Circuit recently held that when money damages are not available through
the grievance process, the prisoner does not need to exhaust
administrative remedies (try to get money from the CDC or BPT) before
filing a complaint in court.
Rumbles v. Hill, 182 F.3d 1064 (9th Cir.1999) Since the CDC
will not award money damages to a prisoner who files an administrative
appeal, you are no longer required to file an administrative appeal when
you only want money damages (as opposed to wanting an injunction - a
court order for the prison to change its policy or decision). Cal. Code
Reg. tit. 15 §§ 3084.1, 3084.7. However, the law is constantly changing
in this area. To play it safe, you should still file a grievance even if
you only want money damages. You should then attach the CDC's denial of
that grievance to your court complaint as proof that you have exhausted.
requirement to be aware of is the
In Forma Pauperis
requirement. If you file a federal civil rights lawsuit you will have to
pay the court filing fee. Even if you have very little money at the time
of the filing the fee will be gradually deducted from your account as
you earn money. Filing fees vary depending on the court.
If you think
you want to file a federal personal injury lawsuit, please refer to the
Personal Injury Manual.
the right to file writs of habeas corpus in order to challenge
conditions of confinement. As with appeals to federal court, prisoners
must first exhaust their administrative remedies before filing a habeas
writ. If you want more information about filing writs please review the
Habeas Corpus Manual.