From the Ink Well

Well friends, it's time for me to dip into my vat of poison ink and
see what's happening in this fine community of ours.  As you no doubt
know, I recently spent some time in the Erie County Holding Center on
a driving while intoxicated charge.  This gave me the opportunity to
explore several areas involving inmates including inmate to inmate sex
and prisoners with HIV.

    No matter what anyone says, inmate to inmate sex takes place even
in the Holding Center.  In fact, an incident occurred in July where a
local transvestite named Nicky, was giving head in the gym under the
watchful eyes of Holding Center Deputies.  Which brings me to
Zolnowski v Higgins Index No. 4781/95.  This rather unique suite was
inspired by the Jail House Lawyer's Manual published by the Columbia
University.  What makes this suit unique, is that it is seeking an
order directing the Sheriff to provide condoms to inmates.

    The issue of condom provision remains controversial with the
public, correctional officers and managers as well as among spouses of
inmates and inmates themselves.  One writer discussing the controversy
of providing condoms to inmates described the complexity of providing
condoms to inmates "The issue has serious moral, administrative,
medical, and philosophical ramifications that, sooner or later, most
of America's jail and prison oversees will have to confront.... Almost
all correctional administrators will impose some form of inmate
protection program to harness the AIDS virus.  The jury is still out,
however, on whether or not access to condoms will be a part of the
comprehensive AIDS protection package."

    Condom availability policies implicitly acknowledge that sexual
behavior occurs in correctional facilities, whether it is prohibited
or not.  Distribution of condoms varies by correctional system.
According to the 1992 Update: HIV/AIDS in Correctional Facilities by
T.M. Hammett, Ph.D., published by the National Institute of Justice
and the Centers for Disease Control and Prevention, the systems that
make condoms available to their inmates are extremely limited.
Mississippi and Vermont are the only state wide systems to make
condoms available to inmates and the cities of New York, San
Francisco, Philadelphia and the District of Columbia make them
available to inmates.

    In the debates that occur over condom distribution, correctional
medical staff often advocate condom availability while correctional
administrators and security staff oppose it.  This ideological divide
reflects different perspectives.  Health Care workers view corrections
from the public health model, which acknowledges that sex takes place
in prison and stresses the need to prevent HIV transmission.  On the
other hand, correctional officials tend to emphasize security and
adherence to regulations.  They worry that condom distribution would
signal their acceptance of sex within the institution.

    Condom usage not only involves consensual sex but prison rape as
well.  The United Sates Supreme Court ruled unanimously in June of
1994 in Farmer v Brennan 114 S. Ct. 1970  that prisoners could bring
civil rights suits against prison official's who do nothing to prevent
rapes under the "cruel and unusual punishment" clause of the Eighth
Amendment to the Constitution.  The court held that prison officials
must know of and disregard an excessive risk to inmate health and
safety; the officials must make the inference of substantial risk of
harm based on those facts.  In a concurring opinion, Justice Blackmum
noted the Eighth Amendment's prohibition of cruel and unusual
punishment bars any physical or mental punishment that is without
penological justification, noting that prison rape, with its risk of
HIV transmission, or other violence os without such justification.

    While the incidents of all types of sexual activity may vary
widely across correctional systems, a report by the Federal Bureau of
Prisons (based on data from federal and state systems) estimates that
30% of inmates engage in homosexual activity while in prison.  Non-
consensual activity is of particular concern regarding the spread of
AIDS in prison.  According to the Federal Bureau of Prisons Report,
Approximately 9 -20% of prison inmates are targets of aggressive sex
acts during their incarceration.  Several independent studies,
however, place the percentage of homosexual rape significantly higher
than this official calculation.  This understatement is due to extreme
reluctance of victims and aggressors to report the incidents.

    The study conducted within the Philadelphia Correctional System
documented that 200 out of a total of 60,000 inmates were the victims
of sexual assaults within a twenty-six month period.  This same study
reported that "virtually every slightly built young man committed by
the Courts is sexually approached within hours after his admission to
prison."  These figures do not even represent the most prevalent type
of sexual intercourse among inmates - consensual sex.  It is clear
that behaviors conductive to the transmission of HIV are highly
prevalent among individuals both before and during incarcerations.

    High risk behavior, particularly homosexual activity (consensual
and non-consensual) is a given in the prison setting, and no
correctional approach can eliminate it.  Homosexual rape is
commonplace as Justice Blackmun has observed, "a youthful inmate can
expect to be subjected to homosexual gang rape his first night in
jail, or it has been said, on his way to jail.  Weaker inmates become
the property of stronger prisoners or gangs who sell the sexual
services of the victim.  United States v Bailey 444 US 394.

    In Harris v Thigpen 941 F2d 1495, Judge Robert E. Varner observed:
"Once the element of an infectious, terminal disease is added to the
ugly scenario of prison rape, the potential variations become even
more gruesome.  For example, assume that nonviolent seropositive
prisoner A is integrated into general prison population because he
appeared to pose no direct threat of HIV transmission.  A is raped by
inmate B, who as a result contracts HIV.  B later forcibly rapes C,
further transmitting the disease.

    In the above example, education, as urged by the appellants, would
alert B to the risk, and would teach him the deadly consequences of
his behavior.  But suppose B ignores the risk.  The above scenario
consequently yields not only B, a prisoner who has contracted the
disease through his own maliciousness or folly (by ignoring AIDS
education), but also C, a completely faultless prisoner whose
punishment for whatever crime has now in effect been increased to a
sentence of certain death.  A, who apparently posed no direct
behavioral threat, have nevertheless become an agent for further
transmission of the disease in the general population.

    Although the prison obviously has a responsibility to use its best
efforts to prevent the attacks upon A and C, as the parties have
acknowledged, no system is perfect.  Moreover, it is virtually certain
that the next law suit will be C v DOC, with C contending that the
person is liable for his harm, since it knew, or should have known,
that A was infected with a contagious, deadly disease, and that even
under the best circumstances the system could not guarantee that C
would not be raped."

    When I began this action, it was through the filing of an inmate
grievance requesting that the facility provide condoms to all inmates.
Erie County Holding Center Assistance Superintendent and University
District Common Council Candidate Willie Brown stated: "Condoms are
not relevant to policy and procedure and "clandestine sex" violates
our rules and regulations".  This implies the attitude of "to hell
with peoples lives, sex is against the rules".  This from the same
people who established a policy in the late 80's of segregating
inmates who tested positive for HIV because they feared inmates would
catch AIDS from one another.  Unfortunately, Willie doesn't realize
that sex in fact does take place between inmates and I in fact
admitted to having sex with Michael J. during a previous
incarceration.  And, I am only the tip of the prison sex iceberg.

    In light of the fact that no prison system claims to be able to
prevent inmate to inmate sex, it is unconscionable that more systems
do not take the step of providing condoms to inmates, even though
these activities violate institutional rules.  Saving lives should be
the more important value.

    One New York State Court ruled that the state is obligated to
provide safe and human place of confinement for its inmates, including
measures to protect prisoners from possible transmission of AIDS by
force.  LaRocca v Dalsheim 467 NYS2d 302.  "We know... that sexual
intimacy among inmates is often not a matter of sexual preference, but
of sexual compulsion.  The  notoriety of sexual violence force and
intimidation in prison is disturbing enough, and has long troubled
sentencing judges and others without the imposition of an additional
dimension of Jeopardy.  This feature is unique to prisons and was
alluded to during the hearing as a particular source of anxiety, which
the court considers genuine".

    Inmate litigation over HIV issues is nothing new to the Erie
County Holding Center.  In 1991, former inmate Louise Nolley filed
suit over the Holding Center's HIV policy and procedures and won.  In
Nolley v Erie County 776 F Supp 715 (WDNY 1991) ECHC Superintendent
John Dray testified that he was concerned that the facility could be
held liable if an inmate contracted HIV or AIDS from another inmate,
rationalizing his policy of segregating HIV + inmates because he
believed that HIV could be transmitted through saliva, tears, spit,
mucus, urine and feces, by casual contact, by an HIV positive inmate
using a typewriter in the Law Library and by even coming into contact
with an HIV positive inmates personal items but not the inmate.  He
contended this policy of segregating HIV inmates was rational even
though such a policy was not mandated by the New York State Commission
of Corrections.  Even after he was assured by leading AIDS experts
that HIV could not be transmitted in these ways, he persisted in his
policy of segregation.  Yet, now, when addressed with the issue of
condom distribution to prevent the spread of AIDS and HIV, Dray is
denying his responsibility saying that the distribution of condoms to
inmates is irrational - even though HIV can only be transmitted
through blood and semen.

    The US Supreme Court in Helling v Mc Kinney 113 S. Ct. 2475, found
that it would be odd to deny an injunction to inmates who plainly
proved an unsafe, life threatening condition in their prison on the
ground that nothing yet happened to them.  The Court of Appeals have
plainly recognized that a remedy for unsafe conditions need not await
a tragic event.

    The United State Government as an Amicus Curiae in Hutto v Finney
437 US 678, recognizes that there may be situations in which exposure
to toxic or other similar substances would "present a risk of
significant likelihood or magnitude - and in which there is a
sufficiently broad consensus that exposure of anyone to the substance
should therefore be prevented and that that Eighth Amendment's
protection would be available even though the effects of exposure
might not be manifested for sometime.

    Rape is one of the most serious safety issues in lockups, jails,
and prison settings.  Even before AIDS became an issue, prisoners
successfully brought suit when they could show that prison officials
negligently failed to provide adequate protection against rape and
other assaults.  Kemp V Waldron 479 NYS2d 440.  Although there are
currently no cases in which prisoners have established liability for
HIV infection based on inadequate protection, the possibility cannot
be discounted.

    In Hoptowit v Spellman 753 F2d 779 (9th Cir 1985), the Court held
that "[p]ersons involuntarily confined by the state have a
constitutional right to safe conditions of confinement" citing
Youngberg v Romeo 457 US 307 (1982) while not every deviation from
ideally safe conditions may amount to a Constitutional violation, the
Court ruled that conditions of confinement that seriously threaten the
health and safety of the inmates are unconstitutional.

    Whether an inmates chooses to have sex with another inmate or is
forced to have sex with another inmate, they are both being exposed to
a situation that could threaten their health and safety.  For a jail
or prison to ignore that duty to protect those intrusted to it's care
by saying that they won't provide condoms because sex is against the
rules is just plain ludicrous.  The current case is now assigned to
it's third judge Hon. Joseph S. Forma and is scheduled to be heard
shortly.