NCJ Number
174657
Journal
Fordham Urban Law Journal Volume: 20 Issue: 3 Dated: Spring 1993 Pages: 467-496
Date Published
1993
Length
30 pages
Annotation
This essay examines whether justice is served by sentencing a person with a compromised immune system (HIV/AIDS) to a term of incarceration, where there is a significant risk of exposing the offender to the deadly disease of TB.
Abstract
The Centers for Disease Control estimate that TB cases occur at least three times more often in correctional settings than in the general population; in larger correctional systems, the incidence rate may be as high as 6 to 11 times the normal rate. This is an alarming trend when coupled with the HIV epidemic. People with HIV are particularly susceptible to contracting TB because they lack a healthy immune system. To further complicate matters, some newer strains of TB are resistant to many conventional drug treatments. These multiple-drug resistant tuberculosis (MDR TB) strains are also prevalent in correctional systems. Many factors lead to the conclusion that alternatives to incarceration are necessary for certain individuals with HIV infection. First, the detection and treatment of TB and MDR TB in HIV-infected individuals are difficult; second, the physical conditions in prison facilitate the transmission of TB; third, people with high-risk factors for HIV infection and their particular susceptibility to TB are overrepresented in prisons; fourth, the costs of treating TB in prisons are greatly increasing; and fifth, TB infection is deadly for persons with HIV-immunosuppression. Plea bargaining and sentencing restrictions in the New York State Penal Law and Criminal Procedure Law limit the alternatives judges, prosecutors, and defense attorneys have in fashioning appropriate dispositions for people who are terminally ill or at high risk for contracting a terminal illness in prison. It is time for New York State to reassess the mandatory sentencing laws and restrictions on plea bargaining. The interaction of HIV disease and TB offers a striking example of why justice is not served by binding the judiciary's hands. 140 footnotes