Criminology

The testing and the prevention methods used in correctional settings have generated a substantial amount of debate and controversy in recent years.  A review of the available academic literature clearly illustrates the breadth of the debate and the interdisciplinary nature of the controversies.  The controversies are complicated by the fact that a number of different issues are raised.  There are, for instance, a variety of public health issues, legal and constitutional issues, and core correctional considerations implicated when HIV testing and prevention programs are proposed and implemented.  Resolving one type of issue, such as the constitutionality of segregating prisoners with HIV to take one of many examples, does not necessarily resolve other issues.  There are conflicts, to be sure, when public health paradigms and perspectives conflict with minimum constitutional guarantees additionally, there are times when fundamental correctional concerns conflict with perceived public health imperatives and legal constraints.  All of these concerns and conflicts fuel the controversies underlying HIV testing and prevention programs in correctional settings and exacerbate the stress levels that are involved when attempting to harmonizing sometimes conflicting priorities as articulated by members of the public health, legal, and corrections communities.  Such a harmonization of disparate public policy concerns, however, is absolutely necessary given the fact that HIV is such a pervasive and persistent concern in correctional settings.  It is generally well-established in the literature, for example, that Notwithstanding the prevalence of the virus in our nations communities, statistics show that more than one-fourth of all individuals with HIV in the U.S. pass through correctional systems each year. HYPERLINK httpwww.questiaschool.comPM.qstaod5027732123(Brown, 2008, p.18)   This highly disproportionate concentration of individuals afflicted with HIV in a single institutional setting therefore provides both opportunities and risks.  The opportunities concern treatment and preventing the further spread of the disease.  The risks, on the other hand, are that inadequate testing and prevention programs will result in the disease spreading more rapidly in the correctional setting and then being spread to outside communities after the inmates are released.  Ironically, it is within the correctional setting that the devastating spread of HIV can be most effectively addressed.  This paper will discuss the different issues of which correctional employees should be aware and how to approach issues related to HIV in a manner that both satisfies important public health concerns while simultaneously respecting and upholding minimum constitutional guarantees and legal standards.
Literature Review  Scope, Legal Concerns, and Evidence-Based Practices
Scope of the Problem  Statistical Framework
As an initial matter, correctional employees must recognize the pervasive nature of HIV-related issues as it relates to correctional settings and the performance of correctional duties.  It has already been noted that more than 25 of all of the HIV positive individuals in the United States pass through local and federal correctional facilities each and every year.  There is, perhaps, no comparable institutional setting which is so exposed to HIV positive individuals with the sole exception of hospitals.  This huge concentration of HIV positive individuals in correctional settings has been attributed to the coalescence of high numbers of intravenous drug users and persons who engage in homosexual intercourse. The problem of AIDS in the prison population is being dealt with by officials through mass screening, segregation, and training.  HYPERLINK httpwww.questiaschool.comPM.qstaod5000223816(Greenlaw  Kohl, 1993, p. 447)   It has been further noted that Of the 1.5 million confined in state and federal prisons at year-end 2005, nearly 1.4 percent (20,000) were known to be HIV-infected, a prevalence rate 97.6 times higher than for people who are not incarcerated.  HYPERLINK httpwww.questiaschool.comPM.qstaod5027732123(Brown, 2008, p. 20)   There are two immediate dangers associated with these statistical realities.  First, correctional institutions are prime breeding grounds for the rapid proliferation of HIV.  If the rapid spread of this disease is to be minimized or stopped then specific policies and programs must be put into place and incorporated in the larger correctional mission and philosophy.  Second, the empirical data further reveals that Given that 95 percent of prisoners eventually return to society, correctional systems cannot ignore that their responsibilities expand beyond public safety and now include the protection of public health HYPERLINK httpwww.questiaschool.comPM.qstaod5027732123(Brown, 2008, p. 21)   It is not enough to assume that because these prisoners are isolated in correctional facilities that they pose no risk to society more generally quite the contrary, because the overwhelming majority of these individuals will be released, the HIV testing and prevention issues make this a much broader public health issue.  How the correctional community approaches and resolves these issues, in short, affects the entire country.
Legal and Constitutional Concerns  Traditional Hands-Off Approach
    One of the more difficult constraints, in terms of devising and implementing effective testing and prevention programs, derives from the simple fact that Americans in the correctional setting do not lose all of their legal and constitutional rights.  Correctional employees should therefore be aware of legal guidelines and constraints in order to ensure that HIV testing and prevention programs are consistent with established legal precedent.  As a general rule, however, the legal literature suggests quite strongly that The courts have traditionally been hesitant to interfere in the administration of correctional systems, and have adopted what is referred to as a hands off doctrine. HYPERLINK httpwww.questiaschool.comPM.qstaod5000223816(Greenlaw  Kohl, 1993, p. 448)  In an Oklahoma case, for example, an inmate argued that his First Amendment and Fourteenth Amendment rights under the American constitution were violated because of a correctional institutions decision to segregate him from other prisoners after he tested positive for HIV.   The plaintiff, hereinafter Powell, admitted to correctional employees that he was homosexual and that he feared that he had been exposed to HIV.  He was thereafter tested, with HIV positive results, and segregated from the general prisons population.  He argued that this segregation violated his constitutional rights because he could not worship his religion with the general population and because the segregation decision was made solely because he was homosexual (Powell v. Department of Corrections, State of Oklahoma, 1986, pp. 969-970).  The federal court rejected his claims this rejection was premised on the notion that the government had a substantial interest in preventing the spread of HIV in correctional settings and that the segregation was the result of the HIV positive test and not Powels sexual preference.  In another federal case, this one originating in a Maryland correctional setting, the court was asked to determine whether mandatory HIV testing violated the Fourth Amendments prohibition against unreasonable searches and seizures.  This case was distinguishable from Powel because in the Oklahoma case the inmate volunteered for the HIV test whereas in the instant Maryland case the inmate challenged the constitutionality of mandatory HIV testing when inmates refused to submit to the tests.   The court determined, after considering the scope of the HIV problem in correctional facilities and the public health concerns of the state of Maryland that forced bodily testing did not violate the Fourth Amendment under the circumstances because of the states immediate interest in protecting the safety of the other inmates...from spread of the disease. (Harris v. Thigpen, 1990, p. 1574)  What therefore emerges from a careful review of the legal literature is a broad type of judicial deference in which the courts are willing to permit testing, segregation, and other prevention programs in order to promote public health rights and concerns more generally.
Evidence-Based Practices  Lack of Empirical Data and Some Early Results
Recognizing that HIV positive individuals pass through correctional settings and facilities in disproportionate numbers, and that the courts have vested correctional officials with broad types of discretion in terms of testing and prevention, the question then becomes what types of policies and practices are most effective.  Mere testing and segregation programs are unlikely to provide any substantial benefits indeed, it has been repeatedly noted in the literature that There are few HIVSTD interventions that have been designed specifically to fit correctional settings and few that have been subject to efficacy studies, much less replicated and rigorously evaluated in these settings. HYPERLINK httpwww.questiaschool.comPM.qstaod5027732261(Potter, 2008, p. 94)  This lack of reliable empirical data, in correctional settings, is hardly surprising.  First, HIV and AIDS are relatively new diseases and policy makers and correctional officials must devise policies and programs based on incomplete or imperfect types of information.  Second, even though the aforementioned statistics demonstrate the concentration of HIV positive individuals in correctional facilities, most of the research has focused on other settings.  Correctional administrators and employees have therefore had to rely on mandatory testing, segregation, and subsequent prevention programs.  Some of the literature addresses what has been termed as educational interventions after the testing and the segregation have been effected one study, summarizing the available research data, has noted that
There is a difference between basic HIVSTDHepatitisTB education and prevention interventions. Whether basic education intervention by itself produces significant changes in behavior inside facilities and in the free world remains an open question. However, intervention programs focused on reducing disease transmission inside a facility or back in the community may be a different matter, especially if they involve investments of facility resources such as personnel, space and time.  HYPERLINK httpwww.questiaschool.comPM.qstaod5027732261(Potter, 2008, pp. 95-96)
 
    What the public health literature suggests is that much more research needs to be conducted specifically in correctional settings and facilities.  Empirical data, establishing real causal relationships, is needed to inform policy makers and correctional administrators so that HIV positive individuals can be better understood and so that the spread of the disease can be minimized or eliminated.


Conclusions and Implications for Correctional Employees
    In the final analysis, there are several lessons to be drawn from the academic literature by correctional employees.  These are interdisciplary lessons and are all designed to address what is first and foremost a public health issue.  The first lesson is that core correctional functions and legal protections must accommodate the greater public health concern.  More specifically, because of the tremendous concentration of HIV positive individuals in correctional facilities, correctional employees must view HIV testing, segregation, and preventative programs as a public health issue both in the correctional setting and for society more generally.  The second lesson is that correctional employees can in fact contribute in meaningful ways to the prevention of the HIV epidemic in America.  Because correctional employees are on the front line, so to speak, they can gain first-hand knowledge about what types of programs seem to work and what types of programs dont seem to work.  These are the types of personal observations and experiences that can then be shared with public health researchers and policy makers in order to help create truly evidence-based prevention models and programs.  Finally, correctional employees should be aware of the fact that society and the courts will be supportive in these efforts to address HIV in the correctional context.  The courts have generally adhered to a hands-off approach vesting correctional administrators with a great degree of discretion.  Correctional employees should view these grants of discretion wisely and attempt to assist in stemming the spread of the disease.  The main advantages are that the correctional employee is vested with more discretion and can contribute to solving a major public health concern.  The main disadvantages are that correctional employees have typically not been trained for such duties and the correctional facilities have not been allocated adequate resources to perform such an important public health function.  These disadvantages should be identified and remedied so that correctional facilities and correctional employees can better assist in the war against HIV.