I first became concerned with the constitutional issues involved in mandatory HIV testing in the summer of 1987, when President Reagan issued an executive order requiring testing of all federal prisoners. At that time it was purely an academic and political exercise--I was concerned with the government's intrusion on civil liberties.
My suspicions about the program turned out to be well founded, because a few months later the Federal Bureau of Prisons (BOP) issued its own regulations to implement the presidential order, and the HIV test became a condition of release. This probably made the federal prison system unique, as I believe all other prison systems are testing on arrival rather than departure. The definition of release includes participation in community programs, such as furloughs and halfway houses.
Even emergency furloughs for a death or serious illness in the family were included in this policy -- if the test had not been taken before an emergency furlough was needed, the inmate would be required to be escorted in handcuffs by guards paid for by the prisoner.
The next escalation in the war came in January, 1988, when several inmates I knew at Danbury (Connecticut) federal prison were delayed in release to halfway houses because their HIV tests were not on file. In one case, an older man from Puerto Rico, nobody had told him that he had to take the test and then wait for the results. Unfortunately, as he was going to a crowded halfway house in Puerto Rico, by the time the results came back the halfway house had used the bed and he had to wait still longer for an opening.
About a week after that incident, a very close friend, Leo, had a problem with his release to a halfway house. Leo, a young Puerto Rican from the Bronx, had been a frequent and vocal critic of nonsensical prison policies. Since Leo wisely didn't trust the prison authorities, and had seen others delayed in release because of the HIV testing program, he made a point of going to the hospital to have them check his file and be sure he had everything he needed for release. But a week later -- when it came time for Leo's release -- there was no record of his ever having taken an HIV test. This begin only a week after the man going to the halfway house in Puerto Rico was stopped from leaving, HIV tests were one of the most talked about subjects in the prison.
I helped Leo write to his U. S. Senator, and to the director of the BOP. Meanwhile, the prison hospital was scheduling Leo for a new HIV test-- it took several days to set up an appointment for a lab technician to take a blood sample to send out for testing. The letter to the BOP director had some effect, as the prison received a call authorizing yet another test for Leo with the results to be checked immediately at the local hospital instead of waiting for the lab in California to receive and report of the first sample mailed from Connecticut. This let Leo be release quickly enough that he lost only ten days--but that was still ten days that he should not have spent in prison.
Of course, if the BOP were telling the truth about not using the results there would be no reason for these delays, as the blood sample could still be taken at the last minute and the ex-prisoner sent on his way.
Next was Luis, another young Puerto Rican, this time from Brooklyn. Luis had been one of my students when I was inmate instructor in the high school class at Danbury prison, and Luis and I had both eventually been moved on to the unfenced camp outside the prison. Luis had tested positive in December, but was still allowed a short furlough at Christmas. In last January he was told he could not be release to a halfway house because of the positive HIV test result.
Protest letters went out to congressmen, legal aid groups, and every source of help we could think of, and a letter telling of his situation was published in one newspaper. All this activity proved very beneficial. The BOP usually tries to intimidate prisoners who have tested positive, by saying, "You don't want to fight this and have your name in all the newspapers as having AIDS, do you?" and the technique usually works.
But Luis called their bluff by having his letter published even before they could try this threat, and his halfway house application was finally processed and he was scheduled for release April 25th.
Unfortunately, the happiness was premature. On April 22nd, when he took his routine release papers around to be signed by all prison departments, the doctor refused to sign because of the positive test. Since that test result had been discussed with the parole officer and the halfway house as part of the application procedure, this last minute cancellation was especially cruel.
Nothing in Luis' situation had changed -- he had never been sick and it was only a positive test, not an active AIDS case. The doctor then tried to shore up his position by claiming that Luis had swollen lymph nodes, something rather hard to diagnose without any examination, and this supposedly made Luis a Group III case. The statement was medically untrue, but terrified Luis, The doctor strengthened it by saying, "I don't sign release papers for terminal cases." A week later Luis was moved from the camp back to the main prison, and a week after that to a higher level prison, all on the grounds that since his release had been canceled he might escape. If that were true, one would think they would have made the move at the same time they canceled the release, not after leaving him in an unfenced camp for a week. More likely, they wanted to cut Luis off from legal help and news media attention.
Although Luis was no longer around, I continued the fight, and The New York Times published a guest editorial of mine on the case. A variety of new interviews followed, and Luis was eventually sent to a halfway house in late June. The treatment of prisoners who test positive is a very sensitive political issue, as there is no legal authority for their detention, and there is no right to a hearing. It is also creating a very dangerous precedent--if it can be done to ex-prisoners, for that is what they really are, then it can be done to any citizen off the streets.