NCJ Number
130074
Journal
Hastings Constitutional Law Quarterly Volume: 17 Issue: 2 Dated: (Winter 1990) Pages: 293-351
Date Published
1990
Length
59 pages
Annotation
This analysis of constitutional issues related to segregation of inmates who are HIV-positive focuses on the nature and extent of procedural safeguards that must accompany a prisoner's transfer to an HIV unit.
Abstract
Inmates confined in prison HIV units have argued, often unsuccessfully, that their confinement impinges on their equal protection and due process rights as well as their right not to be subjected to cruel and unusual punishment. Analysis of the issues involved indicates that transfer to an HIV unit is fundamentally different from administrative segregation and indicates the need for greater procedural protection when prisoners are transferred to HIV units. The nature of the procedural protection depends on the circumstances involved. Summary transfers might be constitutional if an expert has reported two positive ELISA tests and a Western blot and the inmate has received a copy of the test results. However, a hearing would be needed soon after the transfer, and the inmate could have the right to additional tests. However, if the government failed to guard adequately against laboratory error, due process would require a hearing prior to transfer. Footnotes and discussion of the nature and transmission of HIV and AIDS