Editor’s note: Earlier this fall, the U.S. Department of Justice released this important announcement regarding its ongoing efforts to address HIV-related discrimination. Please read.
The Justice Department announced on September 30, 2013 that it had reached a settlement with the South Carolina Department of Corrections (SCDC) and its director, to resolve alleged violations of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). The agreement, filed today along with a complaint in the U.S. District Court for the District of South Carolina, resolves the department’s investigation of SCDC policies and practices of segregating inmates with HIV/AIDS (HIV) and denying them the opportunity to participate equally in services, programs and activities.
The department’s investigation found that, under policies implemented in the late 1990s, SCDC unnecessarily segregates all inmates with HIV in two of SCDC’s highest security prisons, regardless of their individual security classification. There are currently approximately 350 male and female inmates with HIV who are segregated in SCDC’s highest security prisons solely on the basis of their HIV-positive status. SCDC further segregates inmates with HIV to “HIV-only” dorms in these two high security prisons and the inmates are required to wear clothing and badges that identify their dorms and effectively disclose their HIV status to other inmates, correctional staff and visitors. Because certain programs are not provided at the two prisons, inmates with HIV are unable to participate in a variety of SCDC’s programs, such as drug treatment, work release, pre-release preparation, intermediate psychiatric care and SCDC jobs that are available to other inmates without HIV.
“With this consent decree, SCDC joins 49 other state correctional systems that recognize that individuals with HIV are entitled to equal treatment under the law. Science and longstanding experience have demonstrated that HIV, alone, is not a basis for segregation from the general population without an individualized assessment of the inmate’s circumstances,” said Jocelyn Samuels Acting Assistant Attorney General for the Civil Rights Division, “We applaud SCDC’s efforts to close this final chapter of illegal segregation of inmates based on HIV and, to instead commit to the integration of current and future inmates with HIV, based on their individual circumstances, individualized assessment and classification level.”
“I am proud that this office had the opportunity to work with the Department of Justice and the state of South Carolina in addressing this issue,” said William Nettles, U.S. Attorney for the District of South Carolina. “This consent decree will put us all on the right side of history.”
Title II of the ADA and Section 504 prohibit discrimination against people with disabilities, including people with HIV. Discrimination includes unnecessary segregation of people with disabilities as well as excluding people with disabilities from programs or providing unequal access to people with disabilities. While Title II of the ADA provides that public entities, such as correctional institutions, may impose legitimate safety requirements necessary for the safe operation of their services, programs or activities, the requirements must be based on actual risks, not on mere speculation, stereotypes, or generalizations about people with disabilities. The Department of Justice found that SCDC’s segregation policies were based on generalizations and stereotypes about HIV, not on actual risks. No other U.S. state prison system continues to segregate inmates based solely on their HIV positive status; in fact, a court recently invalidated an Alabama policy that, similar to that of South Carolina, segregated inmates with HIV from the general population.
Under the terms of the consent decree, SCDC and its director will implement policies prohibiting discrimination on the basis of disability, including HIV in particular. SCDC will revoke all policies that separate or segregate inmates with HIV, solely on the basis of HIV and regardless of security classification status. Additionally, inmates with HIV who are currently housed in the SCDC’s two high security prisons will have an opportunity to choose new housing options based on the SCDC’s classification system and without regard to HIV.
SCDC inmates with HIV will also have the opportunity to participate in any programs for which they are otherwise qualified such as drug treatment, work release, pre-release preparation, intermediate psychiatric care, youthful offender programs, re-entry and food service jobs in the cafeteria and canteen. Inmates with HIV who have already been segregated and denied such opportunities will be given priority access to those programs under a plan to be developed by SCDC.
To read the consent decree and complaint or for more information on the ADA and HIV, visit www.ada.gov/aids . Those interested in finding out more about this settlement or the obligations of public entities under the ADA may call the Justice Department’s toll-free ADA information line at 800-514-0301 or 800-514-0383 (TDD), or access its ADA website at www.ada.gov. ADA complaints may be filed by email to firstname.lastname@example.org.