Cruel Intentions? HIV Prevalence and Criminalization During an Age of Mass Incarceration, U.S. 1999 to 2012

Abstract

A 2014 U.S. Department of Justice Best Practices Report advocates that states eliminate HIV-specific criminal penalties except under 2 conditions: when a human immunodeficiency virus (HIV)-positive person intentionally commits a sex crime or transmits the virus by engaging in behavior that poses a significant risk of transmission, regardless of actual transmission. We assess the premise of these exceptions to understand whether these best practices are based on scientific evidence about the population at risk of infection and the risk of sexual violence by HIV-positive individuals.We employ nationally representative, cross-sectional survey data from the Current Population Survey (CPS), the Survey of Inmates in State, Federal, and Local Jails (SISFLJ), and the National Health and Nutrition Survey (NHANES).Data from the CPS, SISFLJ, and NHANES are weighted and combined to analyze bias in the population at risk of HIV. Linear probability models are employed to estimate the likelihood that HIV-positive inmates are incarcerated for violent or sexual offenses, net of socioeconomic factors.We find significant measurement bias in HIV prevalence rates. The selection of national surveys for population denominators distorts contemporary estimates of HIV prevalence by 7% to 20%. Our findings also illustrate that HIV-positive inmates are 10 percentage-points less likely to be incarcerated for violent offenses than HIV-negative inmates.National best practice guidelines may undermine effective social policy that aims to curtail stigma within HIV-positive communities because scientific evidence neither include inmates into prevalence denominators (as a measure of the population at risk) nor assess the likelihood that HIV-positive inmates commit violent or sexual crimes.

'Callous, Cold and Deliberately Duplicitous': Racialization, Immigration and the Representation of HIV Criminalization in Canadian Mainstream Newspapers

“…In the United States, the racialized dimensions of HIV criminalization have been central to much of the political discourse on the issue. Noting the large number of high profile U.S. cases that feature Black men living with HIV as defendants, American scholars and activists have understood HIV criminalization as a phenomenon fully situated within a racist history of criminal justice regulation that targets African-American men for arrest and incarceration (Buchanan, 2015;Patterson, 2016;Shevory, 2004;Sykes, Hoppe, and Maziarka, 2016;Thrasher, 2015). In another context, advocates from the United Kingdom have used the conviction of African migrants with HIV in England and Wales to support arguments about the need to develop prosecutorial guidelines to help ensure that future cases involving African migrants and other persons living with HIV are handled in a non-discriminatory manner (Azad, 2008;Weait, 2007).…”

Toward a Critical Criminology of HIV Criminalization

“…In addition, criminal law has failed to keep pace with medical developments that include treatment regimens to produce undetectable viral loads (Cox 2016;Eisinger, Dieffenbach and Fauci 2019). HIV criminalization also discourages personal sexual responsibility, causes patients with HIV to mistrust medical providers, and exacerbates domestic violence and hate crimes against PLHIV (Rothenberg and Paskey 1995; Sprague and Strub 2012;Sykes et al 2016).…”

“…Mass incarceration across the Western world, and particularly in the US, is the product of perverse incentives that prevent accountability and earn profit; efforts to control the bodies of (especially) young Black men; and a rise in penal populism that made incapacitation of the offender a major goal of criminal punishment (Alexander 2012;Christie 2017;Pfaff 2017). Critical criminology should explore how HIV criminalization, itself a product of penal populism, feeds the monster of mass incarceration and the ways mass incarceration affects PLHIV (see Sykes, Hoppe, Maziarka 2016). Antiretroviral treatment and HIV prevention services, including condoms and needle exchange services, are not available consistently in American prisons.…”

Surveillance, Stigma & Sociotechnical Design for HIV

“…The immediate policy response in the United States imposed significant criminal and civil liability upon people living with HIV (Hoppe 2017;Harsono et al 2017;Gostin et al 1999;Sykes et al 2016;Thrasher 2015;Galletly et al 2014;Gagnon 2012;Pollard 2006). Between 1986-2019, HIV-specific criminal laws and sentence enhancements applicable to people living with HIV have been enacted in 34 states and two U.S. territories (Center for HIV Law & Policy 2019; Lehman et al 2014).…”