Death sentence?

By making condoms contraband, prisons may be exacerbating the AIDS health crisis.

Published May 20, 1999 4:00PM (EDT)

Jesse Wells sits in his red shirt and matching pants, in an interview room in San Francisco County Jail, thinking of the words he wants to use. Sometimes he mumbles. Sometimes he veers into the vulgar, pardoning his expression when he does so. Wells, also known as inmate No. 1654096, is a big guy, 6 feet tall and 200 pounds. He has an imposing presence -- until he starts to speak.

"Most of the people I had sex with are dead and gone. I pray every night. It was a blessing that I didn't get it," he says. He's a bisexual who has been in and out of jail since 18, and many of the partners with whom he had unprotected sex were fellow inmates. Wells has had a 10-year relationship with a cellmate he called his "wife;" he's had sex with men he scarcely knew and sex with those he's certain were HIV-positive. On this March evening, as he awaits sentencing for a string of at-gunpoint robberies, he's still playing Russian roulette, not asking his lovers each week if they are infected or not. "Some people don't want to tell you that they have AIDS because they might get beaten up," he explains. "There's a lot of diseases in this place. And a lot don't know what they've got."

After watching so many of his fellow inmates die, he says he has become wiser about HIV. He uses a condom whenever he can get one, which is about once every other week. It's not enough, but Wells is better off than most of the nation's inmates. San Francisco is one of six places in the United States (the others are Vermont and Mississippi, and the cities of Washington, New York and Philadelphia) where condoms are distributed. In the rest of the country's prisons and jails, the condom is contraband. In some prisons, there is even a small black market for them -- going for about $10 apiece, says one ex-con.

The problem with all this is pretty basic, say AIDS activists and health officials: Inmates are having unprotected sex where there are six times more HIV/AIDS cases than in the general population, according to a 1995 report by the U.S. Department of Justice. Another more recent report estimates that the prison population has doubled in the last 12 years to 1.8 million. Inmates live, eat and breathe in close quarters, sharing everything from shower areas to food from the commissary to sleeping quarters. Compounding the problem is the fact that most of those incarcerated eventually get out and return to their communities -- which means from a public health perspective, their problem is our problem.

"Corrections could be where the next major health crisis is going to be, but it's not just about HIV and Hepatitis C," says John Miles of the Centers for Disease Control and Prevention. "This is a population that has been out on the streets, and hasn't had the health care that most of us have had. It's a context where we can access people who have been ill-served. If we don't take advantage of that, corrections could become a health crisis."

To many AIDS activists and prisoner advocacy groups, there's no need to wait for the Big Crisis to arrive. They say it's already here. Even the international community has recognized the problem. The major worldwide health organizations have called for condom distribution in prisons, and many countries, primarily in Europe, have listened.

"The reality is that condoms save lives because they're known as an HIV barrier," says Romeo Sanchez, director of the prison project of the Latino Commission on AIDS. "Because a person goes to prison doesn't mean that they stop having sex. There are marriages in prison, prostitution, prisoners having sex with prisoners, prisoners having sex with prison guards, documented cases of women becoming pregnant in prison -- which shows that the male guards are having sex, too."

In February, Sanchez's nonprofit group released the results of a survey of 108 former inmates of New York state prisons. Sixty-three percent said they had seen prisoners having sex; 31 percent reported knowing someone who became infected in prison through unprotected sex. But since most inmates are not tested both when they arrive and before they're released, it's difficult to estimate the actual rate of infection.

"We do not have an HIV 'health crisis' in the federal prison system," responds Dave Good, national health systems administrator for the Federal Bureau of Prisons. In the last 10 years, despite the increased number of those incarcerated, Good says the number of those who have tested positive has remained steady at 1 percent.

He attributes this to the bureau's infectious disease education program, which teaches prisoners about the dangers of, among other things, illegal needle use and sexual activity. And while activists will point the finger at agencies like the BOP if a prisoner gets infected, Good places the culpability on the inmate who makes the decision to have sex. "Inmates are responsible for their own actions. If an inmate has sexual relations or participates in illegal blood exposures, then they are putting themselves at risk."

Many health officials say the number of HIV/AIDS cases is much higher than the figure Good cites, since not all prisons and jails test inmates. In fact, in many places, it's a voluntary test -- one that inmates aren't rushing to take, because if they test positive, they might be stigmatized or put in a special HIV wing.

And even in the HIV wing, there are risks, like picking up a new strain or another disease, says Jerry Larson, an ex-con who is HIV-positive. While he and others sometimes used cut-up surgical gloves as protection, they had what amounted to unprotected sex. Larson, recently released after serving four years at Vacaville and San Quentin for holding another person captive, considers himself lucky. "I find it revolting that they know what's going on and are just ignoring it. You're talking about a group of people with years of their lives spent inside. You aren't going to get abstinence, so you've got to do something."

Other countries are doing something. Canada, for example, distributes condoms in all federal prisons -- in the shower areas (a popular place to have sex), in the canteen and in the entranceways to health services. Needles, bleach and dental dams are also provided. (Canada's federal system, unlike the United States', is reserved for those sentenced to more than two years.)

"Let's just say that condoms are available in all countries in the Western industrialized world, with very few exceptions, and the United States is the big gap on the map," says Ralf Jurgens, executive director of the Canadian HIV/AIDS Legal Network, and coordinator of the Canadian government's 1994 study on the topic. In fact, Australia and most European countries distribute condoms, and international organizations from the World Health Organization to the United Nations AIDS program to the president's own advisory committee on AIDS have recommended it.

The CDC advises condom use for everyone who is sexually active, although it has never issued a formal recommendation for the incarcerated community. So why, given the HIV/AIDS rates in penal institutions, is the use of condoms by the incarcerated one of the most contentious issues facing corrections departments in the United States?

"Internationally it's seen as a pragmatic measure because of HIV and the fact that we know that many prisoners engage in sexual activity," says Jurgens. "Often the argument in the U.S. is that, 'We can't condone sexual activity behind bars.' Some people say not making condoms available is condoning the spread of HIV behind prison walls."

The problem is more complex for corrections officials, who see condoms as a security threat and a penal conundrum. First the conundrum: Sex is outlawed in prisons, so "we would be saying 'Don't do this,' but 'Here is something to use'" if they do, says Carole Young, vice chairman of the Texas Board of Criminal Justice. When looking at the issue of HIV/AIDS in the Texas prison system in 1997, Young was on a committee that looked at prevention methods and decided not to condone condoms. "I don't think there's a public health crisis going on in our facilities," says Young. "Prisoners are at the highest risk of getting HIV in the population. There is no question about that. While we would not rule [condom distribution] out forever, we felt that the downside was greater than the positive, and making this available would create another set of problems."

The other worry is security. In a jail or prison setting, corrections officials say, those thin, tubular pieces of latex are dangerous. Prisoners are creative with almost everything they get, and could use condoms as strangulation devices, sling shots, fingerprint barriers or drug-stashing vehicles.

"I would not be concerned about it as a weapon, but I would as far as drugs are concerned," says Bob Houston, warden of Douglas County Correction Center in Omaha, Neb. "They could use it like a balloon. We've had visitors put the drugs in a balloon in their mouth and then kiss the inmate, or pass it through some other way, and the inmate swallows it. At the end of the visit, the inmate can successfully go through the strip search and then vomit it up at a later point."

Even in facilities where condoms are offered, they aren't being handed out in every cell. Some make them available at commissaries; others give one out only after the inmate goes through an HIV/AIDS education program. Each facility tends to do it differently. In Mississippi, where condoms have been distributed for years because of the state's conjugal visit policy, their presence is almost a non-issue with prison officials. "It's an item, like chewing gum or candy bars," says Ken Jones nonchalantly. Jones, spokesman for the Mississippi Department of Corrections, says condoms are not the hottest commodity for sale at the canteens. In the last quarter of1998, they sold only 30 packs of three condoms each.

Washington was the last place to authorize distribution, in 1992. And the BOP does not foresee changing its policy in the future. "The issue is a political hot potato," says Nic Howell, spokesman for the Illinois Department of Corrections. "I think my neighbors would go absolutely ape-shit if they even suspected that we were providing inmates with condoms. It would be construed by the taxpayer that we were urging them to have sex. And believe me, the next director of corrections would not allow condoms to be distributed, because it wouldn't be long that before the director of corrections who allowed that to happen would be looking for a job."

So getting support for distribution has been difficult. In the mid-'80s, San Francisco Sheriff Michael Hennessey struggled to make them available in San Francisco County, where he oversees seven jails. Many of his deputies had AIDS. Hennessey wanted to do something to stem the disease's spread.

Getting permission was harder than he thought. He was bounced back and forth between local attorneys and the state attorney general, and never did get a "green light," as he calls it, but only a "yellow" one. The district attorney told him to walk a fine legal line: It was not a crime to distribute condoms, but it could be if a staff person handed a condom to someone knowing that the person intended to use it to have sex. Hennessey had a staff official quit over the issue, but looking back more than 10 years later, he says it was worth it. "People had all kinds of fears about what it would lead to -- promiscuous sex, sexual assault, condoms used to smuggle drugs, or to strangle someone. There were all those fears and concerns, but frankly, none of them have happened. We've probably distributed between 20-25,000 condoms and we've never had anyone misuse one in those illegal fashions."

Even in San Francisco, many inmates said they did not know condoms were available. "I'm HIV-positive and I didn't know that they gave them out here," says 35-year-old Terry Havro, who tested positive while at San Quentin 10 years ago.

Jackie Walker, AIDS information coordinator for the ACLU National Prison Project, receives letters from inmates all over the country who claim to have become infected after having sex with another prisoner. The stories, she says, basically mirror those on the outside -- they had sex, didn't know the other person was infected, then they test positive. But, she says, there is a big difference between what happens on the inside and the outside. "Prisons are the only place in the community where you can't protect yourself," Walker says. "There's no way you could practice this idiotic reasoning except with prisoners. That should not be the attitude -- these folks will be returning to the community."

In fact, according to Hennessey, 98 percent of the inmate population gets out again, going back to their lovers, homes, neighborhoods, friends, wives, boyfriends and girlfriends, not to mention meeting new ones. It's a statistic he calls "one of the best-kept secrets of the criminal justice system."

"You don't see that on TV," says Hennessey. "You see people arrested in the news, or on television shows, you see people walked away and given sentences. But the fact of the matter is almost all of them eventually get out and come back into the various communities. People come out who either obtained the disease in prison or were diseased before they were in prison and now they're getting back out, and I think it's to the community's benefit to understand better how to prevent the spread of disease."

Jerry Larson is a perfect example of that. He's been out for nine months now, and has continued to have sex. Of course, he says he uses a condom now because he can buy one. But the time inside without them continues to haunt and infuriate him. "I consider it the most foolish thing I've ever witnessed. You have the power to prevent the spreading of diseases or [the introduction of] new diseases. Especially since these people are going to take it home to their families. Just because someone said years ago that it wouldn't happen, or shouldn't happen, doesn't mean it's not going to. This disease doesn't stop at the prison door."

By Dawn MacKeen

Dawn MacKeen is a former senior writer for Salon, and author of a forthcoming book about her grandfather’s survival of the Armenian Genocide, "The Hundred-Year Walk: An Armenian Odyssey" (Houghton Mifflin Harcourt, January 2016).

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