Access to condoms in U.S. prisons
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Access to condoms in U.S. prisons Despite overwhelming evidence that condom use prevents the transmission of HIV, U.S. prison officials continue to limit the availability of condoms to incarcerated per- sons. Concern for transmission of HIV in prison and in the community upon prisoners’ release has increased the interest of some policymakers in the issue. In this article, Megan McLemore addresses security concerns as well as human rights arguments in support of efforts to adopt a public health approach to harm reduction in U.S. prisons.1 The management of infectious dis- the willingness of lawmakers to times higher than in the general ease in prisons is a human rights revisit a controversial issue in the population.3 The prevalence of HCV imperative as well as a matter of interest of public health. In Texas, among prisoners approaches 40 per- public health. Given the high level for example, Representative Garnet cent.4 Co-infection is also a concern: of HIV infections among those who Coleman explained to the Corrections A significant number of HIV-positive enter prison, making condoms readily Committee considering his bill that inmates are also infected with HCV. accessible to inmates is an effective it was intended to protect not only Although the majority of inmates and inexpensive measure that correc- the health of inmates but the health infected with HBV, HCV and HIV tions officials should take to limit the of members of the African-American acquired the infection outside of spread of infection. community, where HIV transmis- prison, the transmission of infectious Recent studies indicate no adverse sion rates are alarmingly on the disease in prison is increasingly well security consequences in correctional rise. In California, Governor Arnold documented.5 Targeted interventions systems where condoms are avail- Schwarzenegger vetoed a bill permit- to reduce the risk of HIV transmis- able. These findings, and a growing ting widespread condom distribution sion in prison, such as the provision imperative to reduce transmission in but authorized a pilot program in one of condoms, methadone maintenance the community when offenders are prison to evaluate the feasibility of treatment, and supplying bleach to released, have prompted efforts in such a program. clean needles and syringes, have prov- several states and the U.S. Congress to en highly effective in preventing HIV permit condom use in prison. These Infectious disease in transmission in prisons, just as they efforts should be endorsed by correc- prisons have been when implemented outside. tions professionals and policymakers. More than 2.2 million persons are These harm reduction approaches Since 2006, legislators from states currently incarcerated in U.S. pris- have been endorsed by the World with the largest prison populations, ons. Incarcerated individuals bear a Health Organization (WHO), such as Texas, California, Illinois, disproportionate burden of infectious UNAIDS and the UN Office of New York and Florida, have intro- diseases, including the hepatitis B Drugs and Crime as an integral part duced bills permitting non-profit or virus (HBV), the hepatitis C virus of HIV prevention strategies, includ- medical personnel to provide con- (HCV), and HIV/AIDS. Although ing in prison.6 Government failure doms to inmates. At the federal inmates comprise only 0.8 percent of to ensure access to harm reduction level, Representative Barbara Lee has the U.S. population, it is estimated services puts inmates at unnecessarily introduced the Justice Act of 2006 that 12–15 percent of Americans with increased risk of infection. (HR 6083), a comprehensive attempt chronic HBV infection, 39 percent Regardless of institutional regula- to address HIV/AIDS in prison of those with chronic HCV infection, tions, sexual activity, both consensual which includes a provision permit- and 20–26 percent of those with HIV and coerced, is common in prisons. ting condom distribution to reduce infection pass through a correctional Sex among inmates has been docu- transmission. facility each year.2 mented extensively not only in aca- None of these bills has become The HIV prevalence in state and demic studies and by human rights law, but their introduction reflects federal prisons is two and a half organizations, including Human 20 HIV/A IDS POLICY & L AW R E V I E W
A ccess to condoms in U . S . prisons
Rights Watch, but by correctional These policies stand in stark con- One study examined the condom
systems themselves in the form of trast to the public health approach distribution program in effect since
individual grievances and disciplinary taken by prison officials in Canada, 1993 at the Central Detention Facility
actions against inmates engaging in Western Europe, Australia, Ukraine, in Washington, D.C. (CDF). The
prohibited behaviour.7 Romania and Brazil, where condoms study found that the CDF housed
The Prison Rape Elimination Act have been available to inmates for approximately 1400 adult males, 100
(2003)8 found that an estimated 13 years. Moreover, several large, urban adult females and 40 juveniles, and
percent of U.S. prisoners had been prisons in federal jurisdiction, as well processed an average of 2800 inmates
sexually assaulted in prison, and as one state, have provided condoms per month. It was staffed by 551 cor-
called for research into its prevalence to inmates, either through medical rectional officers.
and patterns. A national Prison Rape staff or more general distribution. Condoms were provided free of
Elimination Commission has held a Where institutional policy provides for charge through public health and
series of hearings examining sexual condom distribution, no correctional AIDS service organizations. Inmates
violence in local, state and federal system has yet to find any grounds to had access to the condoms during
correctional facilities; the U.S. reverse or repeal that policy. health education classes, voluntary
Bureau of Justice Statistics has begun Leading correctional health HIV pre-test or post-test counselling,
a nationwide survey of sexual vio- experts endorse condom distribution or upon request to members of the
lence in detention; and national stan- in prisons. The National Commission health care staff. Approximately 200
dards are being developed to address on Correctional Health Care condoms were distributed each month
the problem. (NCCHC), the nation’s primary stan- according to inventory audits.
dard-setting and accreditation body in Both inmates and staff were inter-
the field of corrections, has endorsed viewed about their opinion of the
the implementation of harm reduction condom distribution program. The
strategies, including condom distribu- findings indicate that 55 percent of
tion. The Commission states, “While inmates and 64 percent of correc-
Government failure to NCCHC clearly does not condone tional officers supported the availabil-
illegal activity by inmates, the public ity of condoms at the CDF facility.
ensure access to harm health strategy to reduce the risk of Objections related primarily to moral
reduction services puts contagion is our primary concern.” 9 and religious concerns about homo-
inmates at unnecessarily Further, the American Public Health sexual activity.
Association Standards for Health Thirteen percent of correctional
increased risk of infection. Services in Correctional Institutions officers said that they were aware of
(3rd Edition, 2003) recommends that institutional problems associated with
condoms be available for inmates. condom distribution, though none
provided descriptions of those prob-
Condom distribution programs: lems. No major security infractions
U.S. prisons related to condoms had been reported
Correctional policy and Some corrections officials have since commencement of the program.
condom distribution expressed concern that condom dis- There was no evidence that sexual
Despite overwhelming evidence that tribution would negatively affect activity had increased, based upon
condom use prevents the transmission institutional security. This concern staff interviews as well as a review of
of HIV, U.S. prison officials continue has proved unfounded in studies from disciplinary reports for the relevant
to limit the availability of condoms Canada and Australia.10 As discussed period. The researchers stated:
to incarcerated persons. Fewer than below, a recent evaluation of a U.S.
one percent of correctional facilities condom distribution program pro- Permitting inmates access to condoms
provide condoms to inmates, though vides further evidence that security is remains controversial among most
those that do include some of the not compromised by this vital harm correctional professionals. Even so,
nation’s largest urban prisons. reduction measure. no jail or prison in the United States
VO L U M E 1 3 , N U M B E R 1, JU LY 2008 21A ccess to condoms in U . S . prisons
allowing condoms has reversed their sons the right to life, and to be free not aggravate the suffering inherent
policies, and none has reported major from cruel, inhuman or degrading in imprisonment, because loss of lib-
security problems. In the Washington, treatment; and, if deprived of their erty alone is the punishment.
D.C. jail, the program has proceeded liberty, to be treated with humanity States have positive obligations to
since 1993 without serious incident. and with respect for the inherent dig- take measures to ensure that condi-
Inmate and correctional officer sur- nity of the human person. tions of confinement comply with
veys found condom access to be gen-
The U.S. is also a party to the international human rights norms
erally accepted by both.11
Convention Against Torture (CAT), and standards. The Human Rights
Several large urban prisons, including which protects all persons from tor- Committee, an expert UN body that
the Los Angeles and San Francisco ture and ill treatment; and is a signa- monitors state compliance with the
County prisons, make condoms tory of the International Covenant on ICCPR and provides authoritative
available to inmates. San Francisco Economic, Social and Cultural Rights interpretations of its provisions, has
Sheriff Michael Hennessey was a (ICESCR), which guarantees the explained that states have a “posi-
strong supporter of California’s legis- right to the highest attainable stan- tive obligation towards persons who
lation permitting condom distribution dard of health.12 are particularly vulnerable because
in prison, which was passed in 2005 of their status as persons deprived of
and again in 2007, but was vetoed in liberty.”
both instances by the Governor. The ICESCR recognizes in
In an editorial opinion letter Article 12 “the right of everyone to
published April 19, 2005 in the the highest attainable standard of
States have a “positive
San Francisco Chronicle, Sheriff health.” The ICESCR requires that
Hennessey stated that correctional obligation towards states take all the steps necessary for
officials should “do everything we persons who are “the prevention, treatment and con-
can to prevent sexual activity in cus- trol of epidemic … diseases” which
tody, but we shouldn’t turn a blind
particularly vulnerable include the establishment of preven-
eye to the reality that it occurs.” because of their status tion and education programmes for
Further, he noted that the risk of as persons deprived of behaviour-related health concerns
contraband smuggling was much such as sexually transmitted diseases,
greater from routine contact between liberty.” in particular HIV/AIDS.
inmates and outside visitors than Realization of the highest attain-
from the availability of condoms able standard of health requires not
inside the facility. Significantly, fol- only access to a system of health care;
lowing his recent veto of the bill, according to the UN Committee on
Governor Schwarzenegger agreed to The obligations to protect the Economic, Social and Cultural Rights,
permit a pilot program for condom rights to life and health, and to it also requires states to take affirma-
distribution, the first of its kind in the protect against torture and other ill tive steps to promote health and to
California state prison system. treatment create positive duties on refrain from conduct that limits peo-
the government to ensure access to ple’s abilities to safeguard their health.
Legal standards and adequate medical services and to take Laws and policies that are “likely to
guidelines appropriate measures necessary to result in … unnecessary morbidity
prevent and control disease.13 and preventable mortality” constitute
International legal standards
International human rights law specific breaches of the obligation to
In its treatment of prisoners, the U.S. clearly affirms that prisoners retain respect the right to health.
must comply with its international fundamental rights and freedoms Key international instruments
human rights obligations. The U.S. is guaranteed under human rights law, establish the general consensus that
a party to the International Covenant subject to the restrictions that are prisoners are entitled to a standard
on Civil and Political Rights unavoidable in a closed environment. of health care equivalent to that
(ICCPR), which guarantees to all per- The conditions of confinement should available in the general community,
22 HIV/A IDS POLICY & L AW R E V I E WA ccess to condoms in U . S . prisons
without discrimination based on their munity. Preventative measures should Amendment claims, requiring
legal status. also be based on risk behaviours actu- inmates to demonstrate that officials
In some cases, state obligations to ally occurring in prisons, notably nee- were “deliberately indifferent to seri-
protect prisoners’ fundamental rights, dle sharing among injection drug users ous medical needs.” This standard
in particular the right to be free from and unprotected sexual intercourse…. involves both an objective (seri-
Since penetrative sexual intercourse
ill-treatment or torture, the right to ous medical need) and subjective
occurs in prison, even when prohibit-
health, and ultimately the right to life, (deliberately indifferent) component.
ed, condoms should be made available
may require states to ensure a higher to prisoners throughout their period of
Courts have consistently held that
standard of care than is available to detention.17 prisoners diagnosed with HIV/AIDS
people outside of prison who are not have demonstrated a “serious medical
wholly dependent upon the state for need.”19
U.S. legal standards
protection of these rights.14 In prison, The subjective component has
where most material conditions of The Eighth Amendment to the U.S. been interpreted as met when a prison
incarceration are directly attributable Constitution protects prisoners from official “knows of and disregards an
to the state, and inmates have been “cruel and unusual punishment” and excessive risk to inmate health or
deprived of their liberty and means requires corrections officials to provide safety.”20
of self-protection, the requirement to a “safe and humane environment.” In Farmer, a transgendered pris-
protect individuals from risk of torture In the U.S., prisoners have a right to oner sued federal prison officials for
or other ill-treatment can give rise to a health care beyond that of the gen- compensation for a brutal beating
positive duty of care, which has been eral population. As Justice Marshall and sexual assault that, the complaint
interpreted to include effective meth- explained in the Estelle decision: alleged, could have been prevented
ods of screening, prevention and treat- by prison officials. The Supreme
ment of life-threatening diseases. These elementary principles establish Court remanded the case for further
Guidance from the WHO, the government’s obligation to provide hearing, but the opinion contains a
UNAIDS and United Nations Office medical care for those whom it is pun- detailed discussion of the scope of
ishing by incarceration. An inmate
on Drugs and Crime (UNODC) the duty of prison officials to protect
must rely on prison authorities to treat
elaborate measures to protect prison- prisoners from harm when the risk of
his medical needs; if the authorities
ers’ fundamental rights to HIV/AIDS fail to do so, those needs will not be
harm is known or acknowledged.
prevention, care and treatment.15 The met. In the worst cases, such a failure There are no reported U.S. cases
principle of equivalence is specifi- may actually produce physical “torture addressing the constitutionality of
cally set forth in the Basic Principles or lingering death,” the evils of most a prison system’s failure to provide
for the Treatment of Prisoners, adopt- immediate concern to the drafters of condoms to inmates but, arguably, the
ed by the United Nations General the Amendment. refusal to implement condom distri-
Assembly in 1990: “Prisoners shall bution programs in prisons meets the
have access to the health services In less serious cases, denial of medical “deliberate indifference” standard,
available in the country without dis- care may result in pain and suffering, particularly when the rates of infec-
which no one suggests would serve any
crimination on the grounds of their tion among inmates, their high-risk
penological purpose. The infliction of
legal situation.”16 behaviour, and the incidence of trans-
such unnecessary suffering is incon-
The WHO guidance also state that sistent with contemporary standards of
mission of disease is increasingly
prisoners are entitled to prevention decency as manifested in modern legis- well documented.
programs equivalent to those avail- lation, codifying the common law view
able in their community, and specifi- that “it is but just that the public be
Conclusion
cally addresses the issue of condom required to care for the prisoner, who Despite increasing documentation of
distribution in a prison environment: cannot, by reason of the deprivation of high rates of infectious disease, the
his liberty, care for himself.”18 occurrence of high-risk behaviours,
Preventative measures for HIV/AIDS and transmission of disease among
in prison should be complementary to The Estelle case, however, applies inmates, the distribution of condoms
and compatible with those in the com- a difficult standard to Eighth in U.S. prisons continues to be limit-
VO L U M E 1 3 , N U M B E R 1, JU LY 2008 23A ccess to condoms in U . S . prisons
ed. Opposition to these programs on 3
U.S. Bureau of Justice Statistics, HIV in Prisons 2005, Harm Reduction Measures in the Correctional Service of
the basis of security concerns is not September 2007. Available via www.usdoj.gov. Canada, 1999; L. Yap et al., “Do condoms cause rape and
mayhem? The long-term effects of condoms in New
supported by the evidence provided
4
A. Spaulding et al, “A framework for management of South Wales prisons,” Sexually Transmitted Infections (STI)
hepatitis C in prisons,” Annals of Internal Medicine 144
in reports from prisons in jurisdic-
Online (December 19, 2006), at www.stibmj.com.
(10) (2006): 763; S. Allen et al, “Hepatitis C among
tions that have established, evaluated
11
offenders — correctional challenge and public health J. May and E. Williams, “Acceptability of condom avail-
opportunity,” Federal Probation 67(22) (2003): 22. ability in a US jail,” AIDS Education and Prevention 14(Supp.
and chosen to retain their condom 5
See, e.g., “HIV Transmission among male inmates
B) (2002): 85.
distribution policies. U.S. policy- in a state prison system — Georgia 1992-2005”,
12
In signing the ICESCR, but not yet ratifying it, the U.S.
makers should endorse current efforts CDC Morbidity and Mortality Weekly Report (MMWR), has not agreed to be legally bound by the Convention,
55(MM15) (2006): 421. For a review of HBV, HCV and but should not take regressive steps in relation to the
to adopt a public health approach to HIV transmission studies for both international and U.S. obligations therein and is obliged to refrain from acts
which would defeat the object and purpose of the treaty
this issue, thereby ensuring compli-
prisons, see R. Jurgens, “HIV/AIDS and HCV in prisons:
a select annotated bibliography,” International Journal of (Article 18 of the Vienna Convention on the Law of Treaties
ance with the recommendations of Prisoner Health 2(2) (2006): 131. For a review of the U.S. 1969).
national correctional health experts as
literature in this area, see T. Hammett, “HIV/AIDS and 13
These leading international human rights instruments
other infectious diseases among correctional inmates: may be found online at the website of the United
well as with international legal stan- transmission, burden and an appropriate response,” Nations High Commissioner for Human Rights,
American Journal of Public Health 96(6) (2006): 974.
dards and guidelines.
www.unhchr.ch/html/intlinst.hm.
6
See, e.g., WHO/UNAIDS/UNODC, Effectiveness of 14
See, R. Lines, “From equivalence of standards to
Interventions to Manage HIV in Prisons – Prevention of equivalence of objectives: the entitlement of prison-
– Megan McLemore Sexual Transmission, 2007. ers to standards of health higher than those outside
7 prisons,”International Journal of Prisoner Health 2 (2006):
See, e.g., C.P. Krebs et al, “Intraprison transmission: an
269.
assessment of whether it occurs, how it occurs, and
15
who Is at risk,” AIDS Education and Prevention 14(Supp. WHO, Guidelines on HIV Infection and AIDS in Prisons,
Megan McLemore (mclemom@hrw.org) B) (2002): 53; A. Spaulding et al, “Can unsafe sex behind 1999; UNAIDS, International Guidelines on HIV/AIDS and
is with the Human Rights and HIV/AIDS bars be barred?” American Journal of Public Health 91(8) Human Rights, 2006; UNODC, HIV/AIDS Prevention, Care,
Program at Human Rights Watch. (2001): 1176; N. Mahon, “New York inmates’ HIV risk Treatment and Support in Prison Settings: A Framework for
behaviors: the implications for prevention policy and Effective National Response, 2006.
programs,” American Journal of Public Health 86 (1996): 16
Basic Principles for the Treatment of Prisoners, U.N.
1211; and Human Rights Watch, No Escape: Male Rape in
General Assembly Resolution 45/111 (1990), para. 9.
US Prisons, 2001.
17
8 WHO, para. 20.
1
Prison Rape Elimination Act, 2003, Public Law 108-79,
Except in quoted text, this article uses the term “pris- 108th Congress. 18
Estelle v. Gamble, 429 U.S. 97 (1976).
on” to designate all correctional facilities, including jails.
9 19
2
NCCHC Position Statement, Journal of Correctional See Smith v. Carpenter, 316 F.3d 178 (2d Cir. 2003); and
C. Weinbaum et al, “Hepatitis B, hepatitis C, and HIV in Health Care 11(4) (2005). Montgomery v. Pinchak, 294 F.3d 492 (3d Cir. 2002).
correctional populations: a review of epidemiology and
10 20
prevention,” AIDS 19(3) (2005): 41. Correctional Services of Canada, Evaluation of HIV/AIDS Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994).
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