The main issue here is that prisons in Louisiana are not providing HIV testing to prisoners, nor are they giving the inmates HIV treatment and care, nor a linkage to care after they are released. The key players in this situation are the members of the Republican administration, as numerous laws and budget cuts that have been enacted that have forced prison officials and administrators to cut costs. I learned of this human rights issue while doing the social media project in my human rights class, in which my classmates and I posted human rights issues to our social media platforms, and then discussed any reactions we got to the project from others, and what we learned from the experience.
This subject rose to greater attention after a study was published by Human Rights Watch, which was then picked up by larger news outlets such as The New York Times, The Huffington Post, and The Guardian. There were not really any conflicting reports published after the Human Rights Watch study that I could find. Within the study, however, HRW cited the Louisiana Department of Corrections as stating that there are no HIV prisoners at local or parish prisons. This statement, however, is likely misleading. Human Rights Watch gave examples of what parish medical workers have said that counters his statement, and given other deprivations by Louisiana, the HRW report is believable.
The Human Right Watch article frames the issue in the context of treatment of all minorities across the state, not just prisoners. There is no expansion of medicaid in Louisiana under the Affordable Care Act, there has been a significant reduction of funding for medical and mental health care for the poor, people are being sent to prison for inability to pay court fees and fines, and there is a lack of representation for legal aid. The Human Rights Watch study provided several suggestions on dealing with these issues, at various levels.
To start, Article 25 of the Universal Declaration of Human Rights provides that all people, including prisoners have the right to adequate standards of health care. Thus, prisoners have the right to adequate health care; the state has an obligation to provide care to inmates while in custody.
The fundamental principle enunciated in Article 25 is echoed in proclamations of other international human rights law bodies. For example, the United Nations Human Rights Committee, which is responsible for interpreting the International Covenant on Civil and Political Rights, declared that the obligation to treat people with dignity includes the provision of health care. Similarly, the Committee on Economic, Social and Cultural Rights, the body responsible for interpreting and monitoring governments’ compliance with the International Covenant on Economic, Social and Cultural Rights, declared that states are obligated to respect the health of all, including prisoners, by refraining from or denying equal access to health care. Finally, and more specifically, UN Standard Minimum Rules for the Treatment of Prisoners, also known as the “Nelson Mandela Rules,” provides that prisoners should enjoy the same standards of health care that are available in the community, specifically referencing treatment for HIV. Given the broad statements of several international human rights bodies, it is clear that Louisiana’s failure to ensure that prisoners have HIV testing, treatment, and linkage to care upon release is inconsistent with these obligations under international human rights law.
While many of the rights enumerated in the Universal Declaration of Human Rights are found within the provisions of the United States’ Constitution, there is no constitutional provision which corresponds to Article 25. Thus, while perceived as a violation of international human rights law, Louisiana’s action does not necessarily violate American human rights law as established by the U.S. Constitution.
It should be noted that the U.S. Supreme Court has determined that prisons which show deliberate indifference to the health needs of prisoners may be in violation of the Constitution’s 8th Amendment’s prohibition on cruel and unusual punishment. However, the Supreme Court has not yet addressed the issue of whether or not the failure to provide HIV treatment constitutes cruel and unusual punishment.
Although there is a lack of judicial clarity from the nation’s highest court, there are additional clear international pronouncements which Louisiana has to be aware of as it relates to prisoners and health care. The World Health Organization has issued standards entitled Guidelines on HIV Infection and AIDS in Prisons which provides that HIV prevention education, voluntary testing, and treatment should be equivalent for prisoners to that available to the general population. In addition, there should be procedures to ensure continuity of care for persons living with HIV upon release.
Human Rights Watch reported that 99 of 104 Louisiana parish jails failed to provide HIV testing to its prisoners. As half of its state offenders served in parish, rather than state, facilities, a tremendous number of prisoners go through the system untested. As the 2009 study by William Arp III previously noted, 76% of released prisoners go home and have sex with women, Louisiana’s human rights failure extends beyond the walls of the parish jails to the local communities.
The effective reason for Louisiana’s failure to provide HIV testing and services to prisoners revolves around funding. Louisiana has not made funding of its correction a priority, and cuts have regularly been made to services to prisons. The transition to a parish jail was made for cost reasons and the cap placed on payment to parishes for prisoners means that HIV testing is not offered, or avoided if at all possible, is because of the cost of treating HIV-infected adults.
The lack of funding for medical care for prisoners is symptomatic of a larger problem in Louisiana in relation to Power and Structural Inequality, as well as Economic Justice. Louisiana has a most restrictive policy on Medicaid eligibility. The “safety net” for underprivileged health care were the Louisiana State University hospitals which provided no cost or low cost health care services to thousands of poor Louisiana residents. In 2012, however, the state faced a budget problem because of previous Medicaid overpayments and, as a result, slashed funding for health care for the underprivileged. Compounding the issue as it relates to medical care, the state privatized virtually all of the Louisiana State University hospitals, impeding access to medical care.
In addition to restricting health care, decisions made in Louisiana have negatively impacted the underprivileged and also contributed to the excessive incarcerated population. Louisiana has stringent minimum sentencing guidelines for drug and other non-violent convictions. There are often unreasonable bail conditions imposed, which keeps offenders in jail pre-trial. Not only are the bond conditions a barrier, defendants in criminal courts are required to pay numerous costs and fees and failure or inability to pay those costs and fees result in incarceration. Financing for indigent defense has been drastically reduced and prisoners with mental health issues face prolonged incarceration. All of these factors, which dramatically impact the underprivileged, have contributed to the high incarceration rate, as well as create an “incubator” of factors which has exacerbated the HIV crisis in Louisiana prisons.
The state of Louisiana cannot take all of the blame. Some federal policies have contributed to the HIV crisis. First, Louisiana relies heavily on federal funding to fund its treatment of HIV/AIDS patients. Several sources of funding to deal with HIV do not extend to prisoners. Medicaid excludes HIV coverage for prisoners from all expenses but actual hospitalization. The Ryan White HIV/AIDS fund provides funding for certain living expenses and medications for those unable to pay, but it does not extend to prisoners, except just prior to their release. Similarly, a federal discounted medication program does not include correction facilities. Thus, the federal government has a role in the lack of funding which has led to the failure of Louisiana to test and follow HIV prisoners.
While the federal government has some room for improvement, the crisis of prisons and HIV appears emblematic of Louisiana’s disregard for the underprivileged and minorities. It is clear that the HIV/AIDS crisis has disproportionately impacted minorities, the poor, drug addicted and those who suffer mental health issues. These same factors are disproportionately represented in the ranks of those who are incarcerated. Yet, time and again, the state of Louisiana has made decisions to the detriment of these groups, cutting health care funds, enforcing strict mandatory sentences for drug convictions, limiting mental health funds, along with decisions which created other barriers to success. The failure to test prisoners for HIV at parish jails is not just a cost-saving measure, much like the water crisis in Flint, it appears to be an extension of those in authority’s lack of concern for those who out of power and on the fringes of society.
First, it is incumbent on government to protect the right to the highest attainable standard of health and provide adequate medical care in detention, as the UN’s Universal Declaration of Human Rights provides that everyone is entitled to a standard of living adequate for his or her well-being, including medical care. Further, the state of Louisiana, parish governments, and the federal government should ensure that policies promote and ensure access to HIV care in all state and local correctional facilities. The Louisiana Department of Corrections should address undiagnosed HIV in parish jails and end funding exclusions for HIV-related services for prisoners in parish jails. Louisiana should ensure that prison health services have enough funds to meet international legal obligations to a population that depends on it for health care. Louisiana health officials should ensure that all detention facilities have strong HIV testing programs in place, and facilitate participation in federal programs that will help pay for HIV medications for prisoners awaiting trial. Finally, the federal government should remove funding barriers for prisoners and corrections facilities.
Arp III, W. (2009). Race, incarceration and HIV/AIDS in Louisiana: Risky sexual behavior demands mandatory testing. Race, Gender & Class, 228-237.
Glenza, J. (2016). Louisiana prisons’ failure to treat HIV could violate human rights, report says. Retrieved April 19, 2016, from http://www.theguardian.com/us-news/2016/mar/29/louisiana-prisons-hiv-human-rights-watch
HIV Among Incarcerated Populations. (2015). Retrieved April 18, 2016, from http://www.cdc.gov/hiv/group/correctional.html
Lohr, D. (2016). Human Rights Watch chastises Louisiana for endangering HIV-positive inmates. Retrieved April 12, 2016, from http://www.huffingtonpost.com/entry/louisiana-hiv-inmates_us_56fec7a8e4b0daf53aefabe5
McLemore, M. (2016). Paying the Price. Retrieved April 22, 2016, from https://www.hrw.org/report/2016/03/29/paying-price/failure-deliver-hiv-services-louisiana-parish-jails
Moseley, K., & Tewksbury, R. (2006). Prevalence and predictors of HIV risk behaviors among male prison inmates. Journal of Correctional Health Care,12(2), 132-144.
Prisoners and HIV/AIDS | AVERT. (2015). Retrieved April 19, 2016, from http://www.avert.org/professionals/hiv-social-issues/key-affected-populations/prisoners