HIV Criminalization And Community Safety Are Two Different Things

 Offender punishment is in form of punitive sanctions such as fines, community service and probation which have been shown to effectively deter future criminal behavior. However, for some crimes that are much too serious to justify rehabilitation efforts, punishment in the form of lengthy prison sentences is seen as the best option. Judges consider several factors when determining sentencing of a defendant to prison. These may include social, economical and political status, age, criminal history, family background and support system, concerns of victims and interested parties, attitude and counseling needs. This impacts on who is incarcerated and gravity of sentence. 

Victim considerations and restoration are part of the goal of the criminal justice system. In the event a defendant owes restitution to a victim, this can be directly to a court. It is the court which  forwards the money or form of restitution to the victim. Victims have the right to be heard at sentencing and parole hearings via written or verbal statements (or both). They may also speak with probation officers to provide input or request general information. This is the ideal due diligence expected of the criminal justice system. But, in the case of a person with a +ve HIV diagnosis there are health issues to consider. Adherence to medication which in turn ensures low virus count, immunity against opportunistic infections and further acquisition of say, TB or other HIV strains while in custody. 

While the goal of safety is important, people whose immunity is compromised need to be placed in such spaces where they would not be vulnerable or spread for instance, TB. The criminal justice system is responsible for overall community safety and it should not be ground zero for re-infections. Safety is both for communities within and outside incarceration settings.  Children should be able to play outside without fear and families should be able to take evening walks. Even though this idyllic view tends towards wishful thinking, Americans view safe communities as a right. Taxes paid to law enforcement personnel are the responsibility of all citizens.

HIV criminalization has to pass four things to be pass a morality test: the motivation, the act itself, the rehabilitation and the consequences. The motivation behind putting one behind bars is punishment, retribution, and deterrence. For people living with HIV this act needs to be followed with humane treatment and non-interruption of ART/ARV treatment. Scholars have shown that HIV is difficult to transmit, that precautions effectively reduce transmission risk, and that with access to treatment, HIV is a chronic, manageable condition, not a death sentence. A public health model needs to be supported and an +ve HIV diagnosis in criminal settings should call for care that ensures ART support and adherence. 


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