Constitutional Challenges to the Compulsory HIV Testing of Prisoners and the Mandatory Segregation of HIV-Positive Prisoners

Abstract

Intravenous drug use is both a common aspect of the pre-imprisonment lifestyles of many American prisoners and a leading risk factor for contracting HIV—the virus that causes AIDS. Moreover, incarcerated inmates frequently engage in behavior that can spread the disease, particularly homosexual activity and intravenous drug use. Correctional officials face increasing pressure to protect inmates and staff from HIV infection, and some have responded by implementing policies requiring all inmates to undergo HIV testing and by housing HIV-positive inmates in separate units. Screening and segregation policies, however, have been challenged on constitutional grounds by HIV-positive prisoners. This article examines the leading constitutional developments in this emerging area of law and finds that most courts so far have been inclined to reject constitutional challenges to mandatory testing and segregation policies. There are enough unsettled issues, however, to warrant expanded appellate review and eventual U.S. Supreme Court resolution of the key constitutional questions.