Downward Sentencing Departures for HIV-Infected Defendants: An Analysis of Current Law and a Framework for the Future

Northwestern University Law Review

Volumn 91, Issue 3, 1997, Pages 1147-1188

  Schar, Reid J ^a  

^a NONE

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EID: 0346158720     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (447)

1. People v. Lawson, 198 A.D.2d 71, 74 (N.Y. App. Div. 1993) (upholding dismissal of an indictment against an HIV-infected defendant in the interest of justice).
2. THEODORE M. HAMMETT ET AL., U.S. DEP'T OF JUSTICE, 1992 UPDATE: AIDS IN CORRECTIONAL FACILITIES 11 (1994).
3. Id.
4. Kathleen Knepper, Responsibility of Correctional Officials in Responding to the Incidence of the HIV Virus in Jails and Prisons, 21 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 45, 45 (1995). HIV is the virus that causes AIDS. For a complete understanding of HIV and its progression to AIDS, see infra Part II.
5. Kathleen Knepper, Responsibility of Correctional Officials in Responding to the Incidence of the HIV Virus in Jails and Prisons, 21 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 45, 45 (1995). HIV is the virus that causes AIDS. For a complete understanding of HIV and its progression to AIDS, see infra Part II.
6. See, e.g., Chalk v. United States Dist. Ct., 840 F.2d 701 (9th Cir. 1988) (granting a preliminary injunction to allow a teacher with AIDS to return to the classroom); Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988) (granting a motion for a preliminary injunction to return a student with AIDS to his regular classes as a full-time student).
7. See, e.g., Chalk v. United States Dist. Ct., 840 F.2d 701 (9th Cir. 1988) (granting a preliminary injunction to allow a teacher with AIDS to return to the classroom); Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988) (granting a motion for a preliminary injunction to return a student with AIDS to his regular classes as a full-time student).
8. See, e.g., Marchica v. Long Island R.R., 31 F.3d 1197 (2d Cir. 1994) (recognizing railroad worker's damages claim under the Federal Employers' Liability Act for fear of contracting AIDS after suffering a puncture wound from a hypodermic needle), cert. denied, 115 S. Ct. 727 (1995); Anonymous Fireman v. City of Willoughby, 779 F. Supp. 402 (N.D. Ohio 1991) (allowing city to require mandatory AIDS testing of firefighters and paramedics as part of an annual physical examination in light of the high-risk nature of their work).
9. See, e.g., Marchica v. Long Island R.R., 31 F.3d 1197 (2d Cir. 1994) (recognizing railroad worker's damages claim under the Federal Employers' Liability Act for fear of contracting AIDS after suffering a puncture wound from a hypodermic needle), cert. denied, 115 S. Ct. 727 (1995); Anonymous Fireman v. City of Willoughby, 779 F. Supp. 402 (N.D. Ohio 1991) (allowing city to require mandatory AIDS testing of firefighters and paramedics as part of an annual physical examination in light of the high-risk nature of their work).
10. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
11. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
12. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
13. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non-punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
14. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
15. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV-infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
16. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
17. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
18. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
19. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
20. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
21. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
22. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
23. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
24. Many of the segregation cases have been challenges by HIV-infected inmates against prison policies providing separate housing facilities for infected prisoners. These suits range from right to privacy arguments to equal protection challenges. Compare Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993) (finding prison officials have qualified immunity from inmate suits alleging violations due to transfer to HIV-segregated housing units); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (finding meritless right to privacy, due process, and equal protection challenges to segregation of HIV-infected inmates); Harris v. Thigpen, 941 F.2d 1495, 1516-17 (11th Cir. 1991) (finding the Alabama Department of Corrections's policy of isolating HIV-positive inmates from general prison population did not violate any constitutionally protected rights and concluding that stated goals for the policy - reducing HIV transmission, maintaining security, and preventing violence - were rational); Muhammed v. Carlson, 845 F.2d 175, 178 (8th Cir. 1988) (finding transfer of HIV-infected inmates to restricted quarters for non- punitive reasons does not abridge due process right), with Nolley v. County of Erie, 776 F. Supp. 715, 739 (W.D.N.Y. 1991) (finding prison policy under which HIV-infected inmates were automatically segregated violated inmates' privacy rights and violated the Due Process Clause); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (recognizing class of prisoners entitled to injunction halting involuntary segregation of HIV-positive inmates). Non-infected prisoners have also brought suit claiming cruel and unusual punishment by being forced to share a cell with an HIV- infected inmate. Courts have unanimously found these claims to be meritless. See Glick v. Henderson, 855 F.2d 536, 540 (8th Cir. 1988); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 267 (S.D.N.Y. 1990); Welch v. Sheriff, 734 F. Supp. 765, 768 (N.D. Tex. 1990); Feigley v. Fulcomer, 720 F. Supp. 475, 480, 482 (M.D. Pa. 1989). For a more extensive discussion of the constitutional and legal issues surrounding the testing and segregation of prisoners, see Ayesha Khan, The Application of Section 504 of the Rehabilitation Act to the Segregation of HIV-Positive Inmates, 65 WASH. L. REV. 839 (1990); Gary H. Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 21 COLUM. J.L. & SOC. PROBS. 269 (1994); Monica Brion, Comment, Prisoner AIDS Testing: A Comment on Dunn v. White, 68 DENV. U. L. REV. 469 (1991); Peter R. Easley, Comment, The AIDS Crisis in Prison: A Need for Change, 6 J. CONTEMP. HEALTH L. & POL'Y 221 (1990); James F. Homer, Jr., Note, Constitutional Issues Surrounding the Mass Testing and Segregation of HIV-infected Inmates, 23 MEM. ST. U. L. REV. 369 (1993).
25. Both federal and state courts have upheld attempted murder convictions against HIV-infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
26. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
27. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
28. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
29. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
30. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of
31. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
32. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
33. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
34. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
35. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
36. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
37. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
38. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
39. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
40. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
41. Both federal and state courts have upheld attempted murder convictions against HIV- infected prisoners who either spit at or bit prison guards. See Weeks v. Scott, 55 F.3d 1059, 1064 (5th Cir. 1995); State v. Smith, 621 A.2d 493, 507 (N.J. Super. Ct. App. Div. 1993); but see Brock v. State, 555 So. 2d 285, 287-88 (Ala. Crim. App. 1989) (basing reversal of a conviction for assault in the first degree against an HIV-infected prisoner who bit a correctional officer on nonexistence of scientific evidence that AIDS could be transmitted by biting). Although the Weeks and Smith courts acknowledged the odds of HIV transmission through biting or spitting were nonexistent, they deferred to the judgment of the jury, which necessarily found the possibility of transmission at least theoretically possible because the juries returned guilty verdicts. See Weeks, 55 F.3d at 1063-64; Smith, 621 A.2d at 505. The Centers for Disease Control has confirmed only one case of blood-to-blood HIV transmission through a human bite. Paul Leavitt, News, USA TODAY, Oct. 27, 1995, at A3. For a brief overview and analysis of cases involving prosecutions for biting and spitting, see Gregory G. Drutchas & Brian R. Garves, Questions of Proof, Intent Arise in AIDS 'Biting' Prosecutions, NAT'L L.J., Apr. 8, 1991, at 28. Other courts have upheld convictions based on state statutes which made it a crime to knowingly engage in acts that result in HIV exposure to another person without the consent and understanding of the other person. See People v. Russell, 630 N.E.2d 794 (Ill. 1994); State v. Gamberella, 633 So. 2d 595 (La. Ct. App. 1993); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). In recent years it has been common for states to criminalize HIV transmission. See FLA. STAT. ANN. § 775.0877 (West Supp. 1996); 720 ILL. COMP. STAT. 5/12-16.2 (1993); LA. REV. STAT. ANN. § 14:43.5 (West Supp. 1996); TENN. CODE ANN. § 39-13-109 (Supp. 1996). See generally Discussion, Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws, 46 ARK. L. REV. 921 (1994) (debating prosecution for HIV transmission under traditional criminal statutes, as well as considering HIV-specific criminal statutes and whether they are constitutional and comport with sound public policy); Jody B. Gabel, Comment, Liability for 'Knowing' Transmission of HIV: The Evolution of a Duty to Disclose, 21 FLA. ST. U. L. REV. 981 (1994) (discussing liability for knowing transmission of HIV in a healthcare setting); Karen E. Lahey, Comment, The New Line of Defense: Criminal HIV Transmission Laws, 1 SYRACUSE J. LEGIS. & POL'Y 85, 95 (1995) (arguing that current HIV criminalization statutes are "plagued with problems of poor drafting and medical misnomers"); Michael I. Leonard, Comment, Combatting AIDS's Acoustics Shadow: Illinois Addresses the Problems of Criminal Transfer of HIV, 22 LOY. U. CHI. L.J. 497, 510 (1991) (arguing that HIV criminalization statutes have a minor deterrent effect).
42. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
43. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
44. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
45. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
46. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
47. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
48. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
49. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
50. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
51. A district court granted a government order compelling a defendant to undergo an HIV test in order to inform a rape victim whether she had been exposed to the virus. Government of Virgin Islands v. Roberts, 756 F. Supp. 898, 904 (D.V.I. 1991). The court granted the motion for the test over the defendant's Fourth Amendment claim that his bodily integrity was protected from unreasonable searches and seizures. Id. at 901. A number of states have passed laws either requiring or allowing a judge to order a defendant to take an HIV test if the defendant was involved in a sexual or controlled substance crime. See CAL. PENAL CODE § 1202.1 (West Supp. 1996); IND. CODE ANN. § 35-38-1-10.5 (West Supp. 1996); KAN. STAT. ANN. § 22-2913 (Supp. 1995); MICH. COMP. LAWS ANN. § 333.5129 (West Supp. 1995); OR. REV. STAT. § 135.139 (1995). See generally Barbara Danko, Comment, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted Sexual Offenders - Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 SETON HALL CONST. L.J. 279, 321 (1993) (concluding that Washington's mandatory HIV testing scheme for convicted sex offenders violates the Fourth Amendment); David R. Moody, Note, AIDS and Rape: The Constitutional Dimensions of Mandatory Testing of Sex Offenders, 76 CORNELL L. REV. 238, 262-65 (1990) (concluding that a California testing and disclosure statute is unconstitutional, but a more narrowly tailored New York statute passes constitutional muster); Bernadette P. Sadler, Comment, When Rape Victims' Rights Meet Privacy Rights: Mandatory HIV Testing, Striking the Fourth Amendment Balance, 67 WASH. L. REV. 195, 213 (1992) (deciding that mandatory HIV testing of sex offenders is unconstitutional); Karin Zink, Note, Love v. Superior Court: Mandatory AIDS Testing and Prostitution, 22 GOLDEN GATE U. L. REV. 795, 812 (1992) (arguing mandatory AIDS testing violates the Fourth Amendment).
52. The earliest federal case to address AIDS as a factor in sentencing determined that the disease was not grounds for a downward departure. United States v. DePew, 751 F. Supp. 1195, 1199 (E.D. Va. 1990), aff'd on other grounds, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991). The reasoning and findings in DePew have been adopted by two other circuits. See United States v. Thomas, 49 F.3d 253, 260-61 (6th Cir. 1995); United States v. Woody, 55 F.3d 1257 (7th Cir.), cert. denied, 116 S. Ct. 234 (1995). Two other circuits have determined that AIDS may be a reason to grant a downward departure in a defendant's sentence. See United States v. Rabins, 63 F.3d 721, 728 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031 (1996); United States v. Schein, 31 F.3d 135, 138 (3d Cir. 1994). For a more detailed discussion of the reasoning and implications of this circuit split, see infra Part IV.
53. The earliest federal case to address AIDS as a factor in sentencing determined that the disease was not grounds for a downward departure. United States v. DePew, 751 F. Supp. 1195, 1199 (E.D. Va. 1990), aff'd on other grounds, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991). The reasoning and findings in DePew have been adopted by two other circuits. See United States v. Thomas, 49 F.3d 253, 260-61 (6th Cir. 1995); United States v. Woody, 55 F.3d 1257 (7th Cir.), cert. denied, 116 S. Ct. 234 (1995). Two other circuits have determined that AIDS may be a reason to grant a downward departure in a defendant's sentence. See United States v. Rabins, 63 F.3d 721, 728 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031 (1996); United States v. Schein, 31 F.3d 135, 138 (3d Cir. 1994). For a more detailed discussion of the reasoning and implications of this circuit split, see infra Part IV.
54. The earliest federal case to address AIDS as a factor in sentencing determined that the disease was not grounds for a downward departure. United States v. DePew, 751 F. Supp. 1195, 1199 (E.D. Va. 1990), aff'd on other grounds, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991). The reasoning and findings in DePew have been adopted by two other circuits. See United States v. Thomas, 49 F.3d 253, 260-61 (6th Cir. 1995); United States v. Woody, 55 F.3d 1257 (7th Cir.), cert. denied, 116 S. Ct. 234 (1995). Two other circuits have determined that AIDS may be a reason to grant a downward departure in a defendant's sentence. See United States v. Rabins, 63 F.3d 721, 728 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031 (1996); United States v. Schein, 31 F.3d 135, 138 (3d Cir. 1994). For a more detailed discussion of the reasoning and implications of this circuit split, see infra Part IV.
55. The earliest federal case to address AIDS as a factor in sentencing determined that the disease was not grounds for a downward departure. United States v. DePew, 751 F. Supp. 1195, 1199 (E.D. Va. 1990), aff'd on other grounds, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991). The reasoning and findings in DePew have been adopted by two other circuits. See United States v. Thomas, 49 F.3d 253, 260-61 (6th Cir. 1995); United States v. Woody, 55 F.3d 1257 (7th Cir.), cert. denied, 116 S. Ct. 234 (1995). Two other circuits have determined that AIDS may be a reason to grant a downward departure in a defendant's sentence. See United States v. Rabins, 63 F.3d 721, 728 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031 (1996); United States v. Schein, 31 F.3d 135, 138 (3d Cir. 1994). For a more detailed discussion of the reasoning and implications of this circuit split, see infra Part IV.
56. The earliest federal case to address AIDS as a factor in sentencing determined that the disease was not grounds for a downward departure. United States v. DePew, 751 F. Supp. 1195, 1199 (E.D. Va. 1990), aff'd on other grounds, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991). The reasoning and findings in DePew have been adopted by two other circuits. See United States v. Thomas, 49 F.3d 253, 260-61 (6th Cir. 1995); United States v. Woody, 55 F.3d 1257 (7th Cir.), cert. denied, 116 S. Ct. 234 (1995). Two other circuits have determined that AIDS may be a reason to grant a downward departure in a defendant's sentence. See United States v. Rabins, 63 F.3d 721, 728 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031 (1996); United States v. Schein, 31 F.3d 135, 138 (3d Cir. 1994). For a more detailed discussion of the reasoning and implications of this circuit split, see infra Part IV.
57. The earliest federal case to address AIDS as a factor in sentencing determined that the disease was not grounds for a downward departure. United States v. DePew, 751 F. Supp. 1195, 1199 (E.D. Va. 1990), aff'd on other grounds, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991). The reasoning and findings in DePew have been adopted by two other circuits. See United States v. Thomas, 49 F.3d 253, 260-61 (6th Cir. 1995); United States v. Woody, 55 F.3d 1257 (7th Cir.), cert. denied, 116 S. Ct. 234 (1995). Two other circuits have determined that AIDS may be a reason to grant a downward departure in a defendant's sentence. See United States v. Rabins, 63 F.3d 721, 728 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031 (1996); United States v. Schein, 31 F.3d 135, 138 (3d Cir. 1994). For a more detailed discussion of the reasoning and implications of this circuit split, see infra Part IV.
58. U.S. SENTENCING GUIDELINES MANUAL § 5H1.4 (1994). The policy statement of § 5H1.4 reads in pertinent part: Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.
59. Id. The policy statement thus brings the cost to the prison system into the sentencing picture. This issue is discussed in greater detail infra at subpart V.C.
60. A cumulative total of 8525 AIDS cases were reported in federal and state prisons as of March 1993. HAMMETT ET AL., supra note 2, at 14. Another 3,040 AIDS cases were reported in city and county jail systems. Id. Together, these numbers represent a 66% increase in AIDS cases in correctional facilities in a two-year period, which is slightly higher than the increase in the general United States population for the same period. Id. It should be noted that the study that produced these numbers estimated some figures conservatively. Id. Thus, the actual total number of AIDS cases is likely higher. Even using the conservative estimate, AIDS cases in correctional facilities account for 4.6% of the total number of AIDS cases reported in the United States. Id. To add perspective to this number, the AIDS incidence rate in the United States population at large was 18 cases per 100,000 people in 1992, while the median AIDS incidence rate in State and Federal penitentiaries was 195 cases per 100,000 inmates in 1992-93. Id. at 18. One study found a correctional institution whose incidence of HIV-positive entrants was 7.6% for men and 14.7% for women. David Vlahov et al., Prevalence of Antibody to HIV-1 Among Entrants to U.S. Correctional Facilities, 265 JAMA 1129, 1130 (1991). These numbers
61. A cumulative total of 8525 AIDS cases were reported in federal and state prisons as of March 1993. HAMMETT ET AL., supra note 2, at 14. Another 3,040 AIDS cases were reported in city and county jail systems. Id. Together, these numbers represent a 66% increase in AIDS cases in correctional facilities in a two-year period, which is slightly higher than the increase in the general United States population for the same period. Id. It should be noted that the study that produced these numbers estimated some figures conservatively. Id. Thus, the actual total number of AIDS cases is likely higher. Even using the conservative estimate, AIDS cases in correctional facilities account for 4.6% of the total number of AIDS cases reported in the United States. Id. To add perspective to this number, the AIDS incidence rate in the United States population at large was 18 cases per 100,000 people in 1992, while the median AIDS incidence rate in State and Federal penitentiaries was 195 cases per 100,000 inmates in 1992-93. Id. at 18. One study found a correctional institution whose incidence of HIV-positive entrants was 7.6% for men and 14.7% for women. David Vlahov et al., Prevalence of Antibody to HIV-1 Among Entrants to U.S. Correctional Facilities, 265 JAMA 1129, 1130 (1991). These numbers indicate a disproportionate number of defendants going to jail are afflicted with AIDS when compared to the general population.
62. A cumulative total of 8525 AIDS cases were reported in federal and state prisons as of March 1993. HAMMETT ET AL., supra note 2, at 14. Another 3,040 AIDS cases were reported in city and county jail systems. Id. Together, these numbers represent a 66% increase in AIDS cases in correctional facilities in a two-year period, which is slightly higher than the increase in the general United States population for the same period. Id. It should be noted that the study that produced these numbers estimated some figures conservatively. Id. Thus, the actual total number of AIDS cases is likely higher. Even using the conservative estimate, AIDS cases in correctional facilities account for 4.6% of the total number of AIDS cases reported in the United States. Id. To add perspective to this number, the AIDS incidence rate in the United States population at large was 18 cases per 100,000 people in 1992, while the median AIDS incidence rate in State and Federal penitentiaries was 195 cases per 100,000 inmates in 1992-93. Id. at 18. One study found a correctional institution whose incidence of HIV-positive entrants was 7.6% for men and 14.7% for women. David Vlahov et al., Prevalence of Antibody to HIV-1 Among Entrants to U.S. Correctional Facilities, 265 JAMA 1129, 1130 (1991). These numbers indicate a disproportionate number of defendants going to jail are afflicted with AIDS when compared to the general population.
63. A cumulative total of 8525 AIDS cases were reported in federal and state prisons as of March 1993. HAMMETT ET AL., supra note 2, at 14. Another 3,040 AIDS cases were reported in city and county jail systems. Id. Together, these numbers represent a 66% increase in AIDS cases in correctional facilities in a two-year period, which is slightly higher than the increase in the general United States population for the same period. Id. It should be noted that the study that produced these numbers estimated some figures conservatively. Id. Thus, the actual total number of AIDS cases is likely higher. Even using the conservative estimate, AIDS cases in correctional facilities account for 4.6% of the total number of AIDS cases reported in the United States. Id. To add perspective to this number, the AIDS incidence rate in the United States population at large was 18 cases per 100,000 people in 1992, while the median AIDS incidence rate in State and Federal penitentiaries was 195 cases per 100,000 inmates in 1992-93. Id. at 18. One study found a correctional institution whose incidence of HIV-positive entrants was 7.6% for men and 14.7% for women. David Vlahov et al., Prevalence of Antibody to HIV-1 Among Entrants to U.S. Correctional Facilities, 265 JAMA 1129, 1130 (1991). These numbers indicate a disproportionate number of defendants going to jail are afflicted with AIDS when compared to the general population.
64. A cumulative total of 8525 AIDS cases were reported in federal and state prisons as of March 1993. HAMMETT ET AL., supra note 2, at 14. Another 3,040 AIDS cases were reported in city and county jail systems. Id. Together, these numbers represent a 66% increase in AIDS cases in correctional facilities in a two-year period, which is slightly higher than the increase in the general United States population for the same period. Id. It should be noted that the study that produced these numbers estimated some figures conservatively. Id. Thus, the actual total number of AIDS cases is likely higher. Even using the conservative estimate, AIDS cases in correctional facilities account for 4.6% of the total number of AIDS cases reported in the United States. Id. To add perspective to this number, the AIDS incidence rate in the United States population at large was 18 cases per 100,000 people in 1992, while the median AIDS incidence rate in State and Federal penitentiaries was 195 cases per 100,000 inmates in 1992-93. Id. at 18. One study found a correctional institution whose incidence of HIV-positive entrants was 7.6% for men and 14.7% for women. David Vlahov et al., Prevalence of Antibody to HIV-1 Among Entrants to U.S. Correctional Facilities, 265 JAMA 1129, 1130 (1991). These numbers indicate a disproportionate number of defendants going to jail are afflicted with AIDS when compared to the general population.
65. Thomas, 49 F.3d at 260-61; Woody, 55 F.3d at 1275-76; DePew, 751 F. Supp. at 1199. Since AIDS is considered the most severe form of HIV infection, the inevitable conclusion exists that if AIDS does not qualify for a downward departure, then neither do all other forms of HIV infection.
66. Rabins, 63 F.3d at 728; Schein, 31 F.3d at 138.
67. The dissent in Rabins did tackle some of the thorny medical issues involved in sentencing defendants with HIV or AIDS and appeared to have a good medical understanding of the disease. See 63 F.3d at 733 (Wilson, J., dissenting). See also infra subpart IV.C.
68. For an explanation of the Federal Sentencing Guidelines, see infra subpart III.A.
69. A thorough background in HIV and AIDS is crucial to understanding the shortcomings of current case law and how it can be improved.
70. One of the problems present in the cases that have dealt with AIDS and sentencing departures has been the courts' obvious lack of medical understanding of the disease. See infra Part IV.
71. Helena Brett-Smith & Gerald H. Friedland, Transmission and Treatment, in AIDS LAW TODAY: A NEW GUIDE FOR THE PUBLIC 18, 18 (Scott Burris et al. eds., 1993). This essay provides a very good explanation of HIV and its progression to AIDS.
72. Id.
73. According to the World Health Organization, between eight and ten million adults are HIV-infected worldwide. Centers for Disease Control & Prevention, U.S. Dep't of Health & Human Serv., 40 MORB. & MORT. WKLY. REP. NO. 22, at 357 (1991).
74. Centers for Disease Control & Prevention, U.S. Dep't of Health & Human Serv., AIDS Associated with Injecting-Drug Use - United States, 1995, 45 MORB. & MORT. WKLY. REP. NO. 19, at 392 (1996). Of course, this number does not include unreported cases.
75. Brett-Smith & Friedland, supra note 20, at 21. This Comment deals with sentencing defendants who are HIV-positive. The transmission of the disease is not a primary issue, since the defendants are already infected. However, basic knowledge in the transmission of the disease is useful. For HIV transmission to occur, "an infected person's blood, semen, or vaginal secretions . . . must come into intimate contact with the blood or mucous membranes (such as mouth, eyes, urethra, vagina, or anus) of an uninfected person . . . . Sweat, tears, and saliva are not considered to be infectious body fluids because the virus, if present at all, occurs in such low numbers that it is medically insignificant." Id. at 23. The most common transmissions of HIV occur through inoculation with infected blood (i.e., sharing of intravenous drug use equipment, transfusions with contaminated blood, accidental needle-sticks of contaminated needles and exposure through an open wound), through sexual contact, and from mother to infant during pregnancy, childbirth, or breastfeeding. DANA E. HUNT, U.S. DEP'T OF JUSTICE, AIDS IN PROBATION AND PAROLE 6-11 (1989). Fourteen different studies have followed persons who had close familial, but nonsexual relationships with HIV-infected individuals. In none of the studies was there transmission of HIV that could not be linked to one of the traditional transmission routes. Brett-Smith & Friedland, supra note 20, at 29. These relationships included sharing razors, toothbrushes, bath towels, toilets, and unwashed utensils and drinking glasses. Id. Additionally, hugging kissing, or sleeping in the same bed as an infected person has not proven to be a means of transmission. Id. Likewise, "spitting, biting, and exposure to urine or feces are not routes of transmission, because in most such situations the skin remains intact, and the amount of virus present in these fluids is in any case insignificant." Id. For additional reading on HIV transmission through inoculation with infected blood, see CHARLES PERROW & MAURO F. GUILLEN, THE AIDS DISASTER 38-44 (1990); Centers for Disease Control & Prevention, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health- Care and Public-Safety Workers, 38 MORB. & MORT. WKLY. REP. NO. S-6 (1989).
76. Brett-Smith & Friedland, supra note 20, at 21. This Comment deals with sentencing defendants who are HIV-positive. The transmission of the disease is not a primary issue, since the defendants are already infected. However, basic knowledge in the transmission of the disease is useful. For HIV transmission to occur, "an infected person's blood, semen, or vaginal secretions . . . must come into intimate contact with the blood or mucous membranes (such as mouth, eyes, urethra, vagina, or anus) of an uninfected person . . . . Sweat, tears, and saliva are not considered to be infectious body fluids because the virus, if present at all, occurs in such low numbers that it is medically insignificant." Id. at 23. The most common transmissions of HIV occur through inoculation with infected blood (i.e., sharing of intravenous drug use equipment, transfusions with contaminated blood, accidental needle-sticks of contaminated needles and exposure through an open wound), through sexual contact, and from mother to infant during pregnancy, childbirth, or breastfeeding. DANA E. HUNT, U.S. DEP'T OF JUSTICE, AIDS IN PROBATION AND PAROLE 6-11 (1989). Fourteen different studies have followed persons who had close familial, but nonsexual relationships with HIV-infected individuals. In none of the studies was there transmission of HIV that could not be linked to one of the traditional transmission routes. Brett-Smith & Friedland, supra note 20, at 29. These relationships included sharing razors, toothbrushes, bath towels, toilets, and unwashed utensils and drinking glasses. Id. Additionally, hugging kissing, or sleeping in the same bed as an infected person has not proven to be a means of transmission. Id. Likewise, "spitting, biting, and exposure to urine or feces are not routes of transmission, because in most such situations the skin remains intact, and the amount of virus present in these fluids is in any case insignificant." Id. For additional reading on HIV transmission through inoculation with infected blood, see CHARLES PERROW & MAURO F. GUILLEN, THE AIDS DISASTER 38-44 (1990); Centers for Disease Control & Prevention, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health- Care and Public-Safety Workers, 38 MORB. & MORT. WKLY. REP. NO. S-6 (1989).
77. Brett-Smith & Friedland, supra note 20, at 21. This Comment deals with sentencing defendants who are HIV-positive. The transmission of the disease is not a primary issue, since the defendants are already infected. However, basic knowledge in the transmission of the disease is useful. For HIV transmission to occur, "an infected person's blood, semen, or vaginal secretions . . . must come into intimate contact with the blood or mucous membranes (such as mouth, eyes, urethra, vagina, or anus) of an uninfected person . . . . Sweat, tears, and saliva are not considered to be infectious body fluids because the virus, if present at all, occurs in such low numbers that it is medically insignificant." Id. at 23. The most common transmissions of HIV occur through inoculation with infected blood (i.e., sharing of intravenous drug use equipment, transfusions with contaminated blood, accidental needle-sticks of contaminated needles and exposure through an open wound), through sexual contact, and from mother to infant during pregnancy, childbirth, or breastfeeding. DANA E. HUNT, U.S. DEP'T OF JUSTICE, AIDS IN PROBATION AND PAROLE 6-11 (1989). Fourteen different studies have followed persons who had close familial, but nonsexual relationships with HIV-infected individuals. In none of the studies was there transmission of HIV that could not be linked to one of the traditional transmission routes. Brett-Smith & Friedland, supra note 20, at 29. These relationships included sharing razors, toothbrushes, bath towels, toilets, and unwashed utensils and drinking glasses. Id. Additionally, hugging kissing, or sleeping in the same bed as an infected person has not proven to be a means of transmission. Id. Likewise, "spitting, biting, and exposure to urine or feces are not routes of transmission, because in most such situations the skin remains intact, and the amount of virus present in these fluids is in any case insignificant." Id. For additional reading on HIV transmission through inoculation with infected blood, see CHARLES PERROW & MAURO F. GUILLEN, THE AIDS DISASTER 38-44 (1990); Centers for Disease Control & Prevention, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health- Care and Public-Safety Workers, 38 MORB. & MORT. WKLY. REP. NO. S-6 (1989).
78. Brett-Smith & Friedland, supra note 20, at 21. This Comment deals with sentencing defendants who are HIV-positive. The transmission of the disease is not a primary issue, since the defendants are already infected. However, basic knowledge in the transmission of the disease is useful. For HIV transmission to occur, "an infected person's blood, semen, or vaginal secretions . . . must come into intimate contact with the blood or mucous membranes (such as mouth, eyes, urethra, vagina, or anus) of an uninfected person . . . . Sweat, tears, and saliva are not considered to be infectious body fluids because the virus, if present at all, occurs in such low numbers that it is medically insignificant." Id. at 23. The most common transmissions of HIV occur through inoculation with infected blood (i.e., sharing of intravenous drug use equipment, transfusions with contaminated blood, accidental needle-sticks of contaminated needles and exposure through an open wound), through sexual contact, and from mother to infant during pregnancy, childbirth, or breastfeeding. DANA E. HUNT, U.S. DEP'T OF JUSTICE, AIDS IN PROBATION AND PAROLE 6-11 (1989). Fourteen different studies have followed persons who had close familial, but nonsexual relationships with HIV-infected individuals. In none of the studies was there transmission of HIV that could not be linked to one of the traditional transmission routes. Brett-Smith & Friedland, supra note 20, at 29. These relationships included sharing razors, toothbrushes, bath towels, toilets, and unwashed utensils and drinking glasses. Id. Additionally, hugging kissing, or sleeping in the same bed as an infected person has not proven to be a means of transmission. Id. Likewise, "spitting, biting, and exposure to urine or feces are not routes of transmission, because in most such situations the skin remains intact, and the amount of virus present in these fluids is in any case insignificant." Id. For additional reading on HIV transmission through inoculation with infected blood, see CHARLES PERROW & MAURO F. GUILLEN, THE AIDS DISASTER 38-44 (1990); Centers for Disease Control & Prevention, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health- Care and Public-Safety Workers, 38 MORB. & MORT. WKLY. REP. NO. S-6 (1989).
79. Brett-Smith & Friedland, supra note 20, at 21. This Comment deals with sentencing defendants who are HIV-positive. The transmission of the disease is not a primary issue, since the defendants are already infected. However, basic knowledge in the transmission of the disease is useful. For HIV transmission to occur, "an infected person's blood, semen, or vaginal secretions . . . must come into intimate contact with the blood or mucous membranes (such as mouth, eyes, urethra, vagina, or anus) of an uninfected person . . . . Sweat, tears, and saliva are not considered to be infectious body fluids because the virus, if present at all, occurs in such low numbers that it is medically insignificant." Id. at 23. The most common transmissions of HIV occur through inoculation with infected blood (i.e., sharing of intravenous drug use equipment, transfusions with contaminated blood, accidental needle-sticks of contaminated needles and exposure through an open wound), through sexual contact, and from mother to infant during pregnancy, childbirth, or breastfeeding. DANA E. HUNT, U.S. DEP'T OF JUSTICE, AIDS IN PROBATION AND PAROLE 6-11 (1989). Fourteen different studies have followed persons who had close familial, but nonsexual relationships with HIV-infected individuals. In none of the studies was there transmission of HIV that could not be linked to one of the traditional transmission routes. Brett-Smith & Friedland, supra note 20, at 29. These relationships included sharing razors, toothbrushes, bath towels, toilets, and unwashed utensils and drinking glasses. Id. Additionally, hugging kissing, or sleeping in the same bed as an infected person has not proven to be a means of transmission. Id. Likewise, "spitting, biting, and exposure to urine or feces are not routes of transmission, because in most such situations the skin remains intact, and the amount of virus present in these fluids is in any case insignificant." Id. For additional reading on HIV transmission through inoculation with infected blood, see CHARLES PERROW & MAURO F. GUILLEN, THE AIDS DISASTER 38-44 (1990); Centers for Disease Control & Prevention, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health- Care and Public-Safety Workers, 38 MORB. & MORT. WKLY. REP. NO. S-6 (1989).
80. Brett-Smith & Friedland, supra note 20, at 21. This Comment deals with sentencing defendants who are HIV-positive. The transmission of the disease is not a primary issue, since the defendants are already infected. However, basic knowledge in the transmission of the disease is useful. For HIV transmission to occur, "an infected person's blood, semen, or vaginal secretions . . . must come into intimate contact with the blood or mucous membranes (such as mouth, eyes, urethra, vagina, or anus) of an uninfected person . . . . Sweat, tears, and saliva are not considered to be infectious body fluids because the virus, if present at all, occurs in such low numbers that it is medically insignificant." Id. at 23. The most common transmissions of HIV occur through inoculation with infected blood (i.e., sharing of intravenous drug use equipment, transfusions with contaminated blood, accidental needle-sticks of contaminated needles and exposure through an open wound), through sexual contact, and from mother to infant during pregnancy, childbirth, or breastfeeding. DANA E. HUNT, U.S. DEP'T OF JUSTICE, AIDS IN PROBATION AND PAROLE 6-11 (1989). Fourteen different studies have followed persons who had close familial, but nonsexual relationships with HIV-infected individuals. In none of the studies was there transmission of HIV that could not be linked to one of the traditional transmission routes. Brett-Smith & Friedland, supra note 20, at 29. These relationships included sharing razors, toothbrushes, bath towels, toilets, and unwashed utensils and drinking glasses. Id. Additionally, hugging kissing, or sleeping in the same bed as an infected person has not proven to be a means of transmission. Id. Likewise, "spitting, biting, and exposure to urine or feces are not routes of transmission, because in most such situations the skin remains intact, and the amount of virus present in these fluids is in any case insignificant." Id. For additional reading on HIV transmission through inoculation with infected blood, see CHARLES PERROW & MAURO F. GUILLEN, THE AIDS DISASTER 38-44 (1990); Centers for Disease Control & Prevention, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health- Care and Public-Safety Workers, 38 MORB. & MORT. WKLY. REP. NO. S-6 (1989).
81. Brett-Smith & Friedland, supra note 20, at 21. This Comment deals with sentencing defendants who are HIV-positive. The transmission of the disease is not a primary issue, since the defendants are already infected. However, basic knowledge in the transmission of the disease is useful. For HIV transmission to occur, "an infected person's blood, semen, or vaginal secretions . . . must come into intimate contact with the blood or mucous membranes (such as mouth, eyes, urethra, vagina, or anus) of an uninfected person . . . . Sweat, tears, and saliva are not considered to be infectious body fluids because the virus, if present at all, occurs in such low numbers that it is medically insignificant." Id. at 23. The most common transmissions of HIV occur through inoculation with infected blood (i.e., sharing of intravenous drug use equipment, transfusions with contaminated blood, accidental needle-sticks of contaminated needles and exposure through an open wound), through sexual contact, and from mother to infant during pregnancy, childbirth, or breastfeeding. DANA E. HUNT, U.S. DEP'T OF JUSTICE, AIDS IN PROBATION AND PAROLE 6-11 (1989). Fourteen different studies have followed persons who had close familial, but nonsexual relationships with HIV-infected individuals. In none of the studies was there transmission of HIV that could not be linked to one of the traditional transmission routes. Brett-Smith & Friedland, supra note 20, at 29. These relationships included sharing razors, toothbrushes, bath towels, toilets, and unwashed utensils and drinking glasses. Id. Additionally, hugging kissing, or sleeping in the same bed as an infected person has not proven to be a means of transmission. Id. Likewise, "spitting, biting, and exposure to urine or feces are not routes of transmission, because in most such situations the skin remains intact, and the amount of virus present in these fluids is in any case insignificant." Id. For additional reading on HIV transmission through inoculation with infected blood, see CHARLES PERROW & MAURO F. GUILLEN, THE AIDS DISASTER 38-44 (1990); Centers for Disease Control & Prevention, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health- Care and Public-Safety Workers, 38 MORB. & MORT. WKLY. REP. NO. S-6 (1989).
82. Brett-Smith & Friedland, supra note 20, at 21. This Comment deals with sentencing defendants who are HIV-positive. The transmission of the disease is not a primary issue, since the defendants are already infected. However, basic knowledge in the transmission of the disease is useful. For HIV transmission to occur, "an infected person's blood, semen, or vaginal secretions . . . must come into intimate contact with the blood or mucous membranes (such as mouth, eyes, urethra, vagina, or anus) of an uninfected person . . . . Sweat, tears, and saliva are not considered to be infectious body fluids because the virus, if present at all, occurs in such low numbers that it is medically insignificant." Id. at 23. The most common transmissions of HIV occur through inoculation with infected blood (i.e., sharing of intravenous drug use equipment, transfusions with contaminated blood, accidental needle-sticks of contaminated needles and exposure through an open wound), through sexual contact, and from mother to infant during pregnancy, childbirth, or breastfeeding. DANA E. HUNT, U.S. DEP'T OF JUSTICE, AIDS IN PROBATION AND PAROLE 6-11 (1989). Fourteen different studies have followed persons who had close familial, but nonsexual relationships with HIV-infected individuals. In none of the studies was there transmission of HIV that could not be linked to one of the traditional transmission routes. Brett-Smith & Friedland, supra note 20, at 29. These relationships included sharing razors, toothbrushes, bath towels, toilets, and unwashed utensils and drinking glasses. Id. Additionally, hugging kissing, or sleeping in the same bed as an infected person has not proven to be a means of transmission. Id. Likewise, "spitting, biting, and exposure to urine or feces are not routes of transmission, because in most such situations the skin remains intact, and the amount of virus present in these fluids is in any case insignificant." Id. For additional reading on HIV transmission through inoculation with infected blood, see CHARLES PERROW & MAURO F. GUILLEN, THE AIDS DISASTER 38-44 (1990); Centers for Disease Control & Prevention, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health- Care and Public-Safety Workers, 38 MORB. & MORT. WKLY. REP. NO. S-6 (1989).
83. Brett-Smith & Friedland, supra note 20, at 21. This Comment deals with sentencing defendants who are HIV-positive. The transmission of the disease is not a primary issue, since the defendants are already infected. However, basic knowledge in the transmission of the disease is useful. For HIV transmission to occur, "an infected person's blood, semen, or vaginal secretions . . . must come into intimate contact with the blood or mucous membranes (such as mouth, eyes, urethra, vagina, or anus) of an uninfected person . . . . Sweat, tears, and saliva are not considered to be infectious body fluids because the virus, if present at all, occurs in such low numbers that it is medically insignificant." Id. at 23. The most common transmissions of HIV occur through inoculation with infected blood (i.e., sharing of intravenous drug use equipment, transfusions with contaminated blood, accidental needle-sticks of contaminated needles and exposure through an open wound), through sexual contact, and from mother to infant during pregnancy, childbirth, or breastfeeding. DANA E. HUNT, U.S. DEP'T OF JUSTICE, AIDS IN PROBATION AND PAROLE 6-11 (1989). Fourteen different studies have followed persons who had close familial, but nonsexual relationships with HIV-infected individuals. In none of the studies was there transmission of HIV that could not be linked to one of the traditional transmission routes. Brett-Smith & Friedland, supra note 20, at 29. These relationships included sharing razors, toothbrushes, bath towels, toilets, and unwashed utensils and drinking glasses. Id. Additionally, hugging kissing, or sleeping in the same bed as an infected person has not proven to be a means of transmission. Id. Likewise, "spitting, biting, and exposure to urine or feces are not routes of transmission, because in most such situations the skin remains intact, and the amount of virus present in these fluids is in any case insignificant." Id. For additional reading on HIV transmission through inoculation with infected blood, see CHARLES PERROW & MAURO F. GUILLEN, THE AIDS DISASTER 38-44 (1990); Centers for Disease Control & Prevention, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public-Safety Workers, 38 MORB. & MORT. WKLY. REP. NO. S-6 (1989).
84. Brett-Smith & Friedland, supra note 20, at 21.
85. Id.
86. Id. For an illustrated sequence of the life cycle of the virus see Human Retroviruses: Illustration, in THE AIDS EPIDEMIC 13, 13 (Padraig O'Malley ed., 1989).
87. Id. For an illustrated sequence of the life cycle of the virus see Human Retroviruses: Illustration, in THE AIDS EPIDEMIC 13, 13 (Padraig O'Malley ed., 1989).
88. Brett-Smith & Friedland, supra note 20, at 21.
89. CD4 cells are commonly referred to as T4 cells. The terms are interchangeable. One should not be confused by the term "CD4 protein," which is the receptor protein on the CD4 or T4 cell to which the HIV attaches. The CD4 cell belongs to a family of cells more commonly referred to as white blood cells. Id. at 22.
90. Id. at 21.
91. Id. at 22.
92. See supra notes 25-27 and accompanying text.
93. Brett-Smith & Friedland, supra note 20, at 21.
94. The period directly after infection is often referred to as "clinical latency." This term is misleading. Although the infected individual may not show outward signs of disease, the infected CD4 cells continue to reproduce and spread HIV. Consequently, the patient's immune system continues to weaken. Thus, while the disease may be termed "clinically latent," in fact the deterioration of the infected individual is quite progressive. Giuseppe Pantaleo et al., The Immunopatogenesis of Human Immunodeficiency Virus Infection, 328 NEW ENG. J. MED. 327, 327-28 (1993).
95. Brett-Smith & Friedland, supra note 20, at 31. Seroconversion occurs when HIV-infected cells reproduce and the immune system responds by attacking the virus and producing antibodies against it. Id. These antibodies attach onto infected cells and either inactivate them or mark them for further attack. Id. When individuals are tested for HIV, it is these antibodies and not HIV or HIV-infected cells whose presence is detected.
96. Brett-Smith & Friedland, supra note 20, at 31. Seroconversion occurs when HIV-infected cells reproduce and the immune system responds by attacking the virus and producing antibodies against it. Id. These antibodies attach onto infected cells and either inactivate them or mark them for further attack. Id. When individuals are tested for HIV, it is these antibodies and not HIV or HIV-infected cells whose presence is detected.
97. Brett-Smith & Friedland, supra note 20, at 31. Seroconversion occurs when HIV-infected cells reproduce and the immune system responds by attacking the virus and producing antibodies against it. Id. These antibodies attach onto infected cells and either inactivate them or mark them for further attack. Id. When individuals are tested for HIV, it is these antibodies and not HIV or HIV-infected cells whose presence is detected.
98. Id. According to some estimates, the number of individuals who suffer acute mononucleosis-like illness ranges from 50% to 70%. Pantaleo et al., supra note 34, at 327.
99. Id. According to some estimates, the number of individuals who suffer acute mononucleosis-like illness ranges from 50% to 70%. Pantaleo et al., supra note 34, at 327.
100. Brett-Smith & Friedland, supra note 20, at 31.
101. See supra note 35.
102. Brett-Smith & Friedland, supra note 20, at 31. Indeed, at this point the infected individual may feel perfectly healthy. Id.
103. Brett-Smith & Friedland, supra note 20, at 31. Indeed, at this point the infected individual may feel perfectly healthy. Id.
104. Id.
105. Because HIV tests detect the proteins and not the virus, they are called "indirect" tests. Id. at 31.
106. Enzyme-linked immunosorbant assay test. HUNT, supra note 24, at 23.
107. Western Blot immunopheresis test. Id.
108. The ELISA test is very sensitive and can be completed in a matter of hours, but produces a greater number of false positives than the labor-intensive Western Blot test. Brett-Smith & Friedland, supra note 20, at 32. Thus, as a precautionary measure, if an ELISA test produces a positive reading, most labs will then test the blood using either another ELISA test or the Western Blot test. Id. For a more in-depth discussion of the issues surrounding HIV testing, see AIDS TESTING (Gerald Schochetman & J. Richard George eds., 2d ed. 1994); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 27-30 (Albert R. Jonsen & Jeff Stryker eds., 1993) (discussing issues of mandatory testing including a new movement for routine testing of pregnant women); Brett-Smith & Friedland, supra note 20, at 31-33 (discussing antibody tests as well as culture tests that directly determine whether the HIV virus is in the blood); Michael Gross, HIV Antibody Testing: Performance and Counseling Issues, in THE AIDS EPIDEMIC 189-212 (Padraig O'Malley ed., 1989) (assessing the performance of HIV tests and suggesting guidelines for counseling people seeking HIV antibody testing); Kenneth R. Howe Why Mandatory Screening for AIDS is a Very Bad Idea, in AIDS: ETHICS AND PUBLIC POLICY 140, 148 (Christine Pierce & Donald Vandeveer eds., 1988) (concluding mandatory testing is ineffective and inefficient, threatens privacy and autonomy, and offends conceptions of justice); HUNT, supra note 24, at 23-28 (discussing the reliability and validity of HIV tests currently in use).
109. The ELISA test is very sensitive and can be completed in a matter of hours, but produces a greater number of false positives than the labor-intensive Western Blot test. Brett-Smith & Friedland, supra note 20, at 32. Thus, as a precautionary measure, if an ELISA test produces a positive reading, most labs will then test the blood using either another ELISA test or the Western Blot test. Id. For a more in-depth discussion of the issues surrounding HIV testing, see AIDS TESTING (Gerald Schochetman & J. Richard George eds., 2d ed. 1994); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 27-30 (Albert R. Jonsen & Jeff Stryker eds., 1993) (discussing issues of mandatory testing including a new movement for routine testing of pregnant women); Brett-Smith & Friedland, supra note 20, at 31-33 (discussing antibody tests as well as culture tests that directly determine whether the HIV virus is in the blood); Michael Gross, HIV Antibody Testing: Performance and Counseling Issues, in THE AIDS EPIDEMIC 189-212 (Padraig O'Malley ed., 1989) (assessing the performance of HIV tests and suggesting guidelines for counseling people seeking HIV antibody testing); Kenneth R. Howe Why Mandatory Screening for AIDS is a Very Bad Idea, in AIDS: ETHICS AND PUBLIC POLICY 140, 148 (Christine Pierce & Donald Vandeveer eds., 1988) (concluding mandatory testing is ineffective and inefficient, threatens privacy and autonomy, and offends conceptions of justice); HUNT, supra note 24, at 23-28 (discussing the reliability and validity of HIV tests currently in use).
110. The ELISA test is very sensitive and can be completed in a matter of hours, but produces a greater number of false positives than the labor-intensive Western Blot test. Brett-Smith & Friedland, supra note 20, at 32. Thus, as a precautionary measure, if an ELISA test produces a positive reading, most labs will then test the blood using either another ELISA test or the Western Blot test. Id. For a more in-depth discussion of the issues surrounding HIV testing, see AIDS TESTING (Gerald Schochetman & J. Richard George eds., 2d ed. 1994); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 27-30 (Albert R. Jonsen & Jeff Stryker eds., 1993) (discussing issues of mandatory testing including a new movement for routine testing of pregnant women); Brett-Smith & Friedland, supra note 20, at 31-33 (discussing antibody tests as well as culture tests that directly determine whether the HIV virus is in the blood); Michael Gross, HIV Antibody Testing: Performance and Counseling Issues, in THE AIDS EPIDEMIC 189-212 (Padraig O'Malley ed., 1989) (assessing the performance of HIV tests and suggesting guidelines for counseling people seeking HIV antibody testing); Kenneth R. Howe Why Mandatory Screening for AIDS is a Very Bad Idea, in AIDS: ETHICS AND PUBLIC POLICY 140, 148 (Christine Pierce & Donald Vandeveer eds., 1988) (concluding mandatory testing is ineffective and inefficient, threatens privacy and autonomy, and offends conceptions of justice); HUNT, supra note 24, at 23-28 (discussing the reliability and validity of HIV tests currently in use).
111. The ELISA test is very sensitive and can be completed in a matter of hours, but produces a greater number of false positives than the labor-intensive Western Blot test. Brett-Smith & Friedland, supra note 20, at 32. Thus, as a precautionary measure, if an ELISA test produces a positive reading, most labs will then test the blood using either another ELISA test or the Western Blot test. Id. For a more in-depth discussion of the issues surrounding HIV testing, see AIDS TESTING (Gerald Schochetman & J. Richard George eds., 2d ed. 1994); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 27-30 (Albert R. Jonsen & Jeff Stryker eds., 1993) (discussing issues of mandatory testing including a new movement for routine testing of pregnant women); Brett-Smith & Friedland, supra note 20, at 31-33 (discussing antibody tests as well as culture tests that directly determine whether the HIV virus is in the blood); Michael Gross, HIV Antibody Testing: Performance and Counseling Issues, in THE AIDS EPIDEMIC 189-212 (Padraig O'Malley ed., 1989) (assessing the performance of HIV tests and suggesting guidelines for counseling people seeking HIV antibody testing); Kenneth R. Howe Why Mandatory Screening for AIDS is a Very Bad Idea, in AIDS: ETHICS AND PUBLIC POLICY 140, 148 (Christine Pierce & Donald Vandeveer eds., 1988) (concluding mandatory testing is ineffective and inefficient, threatens privacy and autonomy, and offends conceptions of justice); HUNT, supra note 24, at 23-28 (discussing the reliability and validity of HIV tests currently in use).
112. The ELISA test is very sensitive and can be completed in a matter of hours, but produces a greater number of false positives than the labor-intensive Western Blot test. Brett-Smith & Friedland, supra note 20, at 32. Thus, as a precautionary measure, if an ELISA test produces a positive reading, most labs will then test the blood using either another ELISA test or the Western Blot test. Id. For a more in-depth discussion of the issues surrounding HIV testing, see AIDS TESTING (Gerald Schochetman & J. Richard George eds., 2d ed. 1994); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 27-30 (Albert R. Jonsen & Jeff Stryker eds., 1993) (discussing issues of mandatory testing including a new movement for routine testing of pregnant women); Brett-Smith & Friedland, supra note 20, at 31-33 (discussing antibody tests as well as culture tests that directly determine whether the HIV virus is in the blood); Michael Gross, HIV Antibody Testing: Performance and Counseling Issues, in THE AIDS EPIDEMIC 189-212 (Padraig O'Malley ed., 1989) (assessing the performance of HIV tests and suggesting guidelines for counseling people seeking HIV antibody testing); Kenneth R. Howe Why Mandatory Screening for AIDS is a Very Bad Idea, in AIDS: ETHICS AND PUBLIC POLICY 140, 148 (Christine Pierce & Donald Vandeveer eds., 1988) (concluding mandatory testing is ineffective and inefficient, threatens privacy and autonomy, and offends conceptions of justice); HUNT, supra note 24, at 23-28 (discussing the reliability and validity of HIV tests currently in use).
113. The ELISA test is very sensitive and can be completed in a matter of hours, but produces a greater number of false positives than the labor-intensive Western Blot test. Brett-Smith & Friedland, supra note 20, at 32. Thus, as a precautionary measure, if an ELISA test produces a positive reading, most labs will then test the blood using either another ELISA test or the Western Blot test. Id. For a more in-depth discussion of the issues surrounding HIV testing, see AIDS TESTING (Gerald Schochetman & J. Richard George eds., 2d ed. 1994); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 27-30 (Albert R. Jonsen & Jeff Stryker eds., 1993) (discussing issues of mandatory testing including a new movement for routine testing of pregnant women); Brett-Smith & Friedland, supra note 20, at 31-33 (discussing antibody tests as well as culture tests that directly determine whether the HIV virus is in the blood); Michael Gross, HIV Antibody Testing: Performance and Counseling Issues, in THE AIDS EPIDEMIC 189-212 (Padraig O'Malley ed., 1989) (assessing the performance of HIV tests and suggesting guidelines for counseling people seeking HIV antibody testing); Kenneth R. Howe Why Mandatory Screening for AIDS is a Very Bad Idea, in AIDS: ETHICS AND PUBLIC POLICY 140, 148 (Christine Pierce & Donald Vandeveer eds., 1988) (concluding mandatory testing is ineffective and inefficient, threatens privacy and autonomy, and offends conceptions of justice); HUNT, supra note 24, at 23-28 (discussing the reliability and validity of HIV tests currently in use).
114. The ELISA test is very sensitive and can be completed in a matter of hours, but produces a greater number of false positives than the labor-intensive Western Blot test. Brett-Smith & Friedland, supra note 20, at 32. Thus, as a precautionary measure, if an ELISA test produces a positive reading, most labs will then test the blood using either another ELISA test or the Western Blot test. Id. For a more in-depth discussion of the issues surrounding HIV testing, see AIDS TESTING (Gerald Schochetman & J. Richard George eds., 2d ed. 1994); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 27-30 (Albert R. Jonsen & Jeff Stryker eds., 1993) (discussing issues of mandatory testing including a new movement for routine testing of pregnant women); Brett-Smith & Friedland, supra note 20, at 31-33 (discussing antibody tests as well as culture tests that directly determine whether the HIV virus is in the blood); Michael Gross, HIV Antibody Testing: Performance and Counseling Issues, in THE AIDS EPIDEMIC 189-212 (Padraig O'Malley ed., 1989) (assessing the performance of HIV tests and suggesting guidelines for counseling people seeking HIV antibody testing); Kenneth R. Howe Why Mandatory Screening for AIDS is a Very Bad Idea, in AIDS: ETHICS AND PUBLIC POLICY 140, 148 (Christine Pierce & Donald Vandeveer eds., 1988) (concluding mandatory testing is ineffective and inefficient, threatens privacy and autonomy, and offends conceptions of justice); HUNT, supra note 24, at 23-28 (discussing the reliability and validity of HIV tests currently in use).
115. The ELISA test is very sensitive and can be completed in a matter of hours, but produces a greater number of false positives than the labor-intensive Western Blot test. Brett-Smith & Friedland, supra note 20, at 32. Thus, as a precautionary measure, if an ELISA test produces a positive reading, most labs will then test the blood using either another ELISA test or the Western Blot test. Id. For a more in-depth discussion of the issues surrounding HIV testing, see AIDS TESTING (Gerald Schochetman & J. Richard George eds., 2d ed. 1994); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 27-30 (Albert R. Jonsen & Jeff Stryker eds., 1993) (discussing issues of mandatory testing including a new movement for routine testing of pregnant women); Brett-Smith & Friedland, supra note 20, at 31-33 (discussing antibody tests as well as culture tests that directly determine whether the HIV virus is in the blood); Michael Gross, HIV Antibody Testing: Performance and Counseling Issues, in THE AIDS EPIDEMIC 189-212 (Padraig O'Malley ed., 1989) (assessing the performance of HIV tests and suggesting guidelines for counseling people seeking HIV antibody testing); Kenneth R. Howe Why Mandatory Screening for AIDS is a Very Bad Idea, in AIDS: ETHICS AND PUBLIC POLICY 140, 148 (Christine Pierce & Donald Vandeveer eds., 1988) (concluding mandatory testing is ineffective and inefficient, threatens privacy and autonomy, and offends conceptions of justice); HUNT, supra note 24, at 23-28 (discussing the reliability and validity of HIV tests currently in use).
116. Brett-Smith & Friedland, supra note 20, at 32.
117. They have no outward signs of illness. Id. at 33.
118. The median period from HIV infection to AIDS is eight to ten years. Giuseppe Pantaleo et al., Studies in Subjects with Long-Term Nonprogressive Human Immunodeficiency Virus Infection, 332 NEW ENG. J. MED. 209, 209 (1995).
119. Brett-Smith & Friedland, supra note 20, at 33.
120. Id.
121. See infra notes 58-65 and accompanying text.
122. Symptomatic illnesses: include oral and vaginal thrush (yeast infection); oral ulcers; swollen lymph glands; low platelets (blood cells that are important for clotting); anemia; kidney failure; certain bacterial infections such as pneumonia and, in women, pelvic inflammatory disease; nerve pain in the feet and hands; mild changes in memory and concentration; nonspecific muscle and joint pains; fevers and night sweats without a specific infectious cause; loss of appetite with mild weight loss; shingles; and a. multitude of different skin problems and rashes including psoriasis, oral and genital herpes, and fungal infections of the finger and toe nails, among others. Brett-Smith & Friedland, supra note 20, at 34.
123. Id. The usage of the term ARC is debated because it has never officially been recognized. THEODORE M. HAMMETT, U.S. DEP'T OF JUSTICE, AIDS IN CORRECTIONAL FACILITIES: ISSUES AND OPTIONS 5 (3d ed. 1988). Additionally, ARC is usually defined as a combination of symptoms or conditions that indicate the presence of the AIDS virus, much like the clinical definition of AIDS promulgated by the Centers for Disease Control. Id.
124. Id. The usage of the term ARC is debated because it has never officially been recognized. THEODORE M. HAMMETT, U.S. DEP'T OF JUSTICE, AIDS IN CORRECTIONAL FACILITIES: ISSUES AND OPTIONS 5 (3d ed. 1988). Additionally, ARC is usually defined as a combination of symptoms or conditions that indicate the presence of the AIDS virus, much like the clinical definition of AIDS promulgated by the Centers for Disease Control. Id.
125. Id. The usage of the term ARC is debated because it has never officially been recognized. THEODORE M. HAMMETT, U.S. DEP'T OF JUSTICE, AIDS IN CORRECTIONAL FACILITIES: ISSUES AND OPTIONS 5 (3d ed. 1988). Additionally, ARC is usually defined as a combination of symptoms or conditions that indicate the presence of the AIDS virus, much like the clinical definition of AIDS promulgated by the Centers for Disease Control. Id.
126. HIV encephalopathy occurs when the virus infects the central nervous system. It is a "complex of cognitive, affective, behavioral, and motor symptoms which varies widely in its presentation." Alexandra Beckett & Theo Manschreck, Neuropsychiatric Complications of HIV Infection: Public Policy Implications, in THE AIDS EPIDEMIC 111, 111 (Padraig O'Malley ed., 1989). See also HIV, AIDS, AND THE BRAIN (Richard W. Price & Samuel W. Perry III eds., 1994).
127. HIV encephalopathy occurs when the virus infects the central nervous system. It is a "complex of cognitive, affective, behavioral, and motor symptoms which varies widely in its presentation." Alexandra Beckett & Theo Manschreck, Neuropsychiatric Complications of HIV Infection: Public Policy Implications, in THE AIDS EPIDEMIC 111, 111 (Padraig O'Malley ed., 1989). See also HIV, AIDS, AND THE BRAIN (Richard W. Price & Samuel W. Perry III eds., 1994).
128. AIDS dementia, in its most extreme forms, qualifies for the Centers for Disease Control case definition of AIDS. Beckett & Manschreck, supra note 53, at 111.
129. Id. at 112.
130. Beckett & Manschrek note that: In some individuals, [AIDS dementia] is indolent and slowly progressive. Concentration and memory may worsen, but individuals continue to work and live independently. In others the course of AIDS dementia is rapid and catastrophic, progressing in a matter of weeks or months to severe intellectual deterioration, marked psychomotor slowing and mutism. Hyperreflexia, urinary and fecal incontinence, and, occasionally, seizures may occur. Id.
131. The AIDS dementia required for clinical definition as AIDS has been compared to "Alzheimer's disease in the degree of impairment and care required." Brett-Smith & Friedland, supra note 20, at 36.
132. The clinical definition of AIDS is often explained using a grid that illustrates nine mutually exclusive categories, with three separate CD4 cell counts per cubic millimeter of blood on the vertical axis (below 200, from 200 to 499, and above 500) and three categories of disease on the horizontal axis (asymptomatic, symptomatic (most diseases considered to be ARC), and AIDS indicator conditions). This grid is usually labeled A-1 (healthiest designation with patient over a 500 CD4 cell count and asymptomatic) to C-3 (most dire with patient under a 200 CD4 cell count with an AIDS indicator condition). In-between designations are labeled A-2, A-3, B-1, B-2, B-3, C-1, and C-2 depending on the combination of CD4 cell count and the category of disease. See JOHN G. BARTLETT, THE JOHNS HOPKINS HOSPITAL GUIDE TO MEDICAL CARE OF PATIENTS WITH HIV INFECTION 18 (4th ed. 1994). As of 1993, any patient with a CD4 cell count below 200 is defined as having AIDS, as is any patient with a disease considered to be an AIDS indicator disease by the Centers for Disease Control. Id.
133. The clinical definition of AIDS is often explained using a grid that illustrates nine mutually exclusive categories, with three separate CD4 cell counts per cubic millimeter of blood on the vertical axis (below 200, from 200 to 499, and above 500) and three categories of disease on the horizontal axis (asymptomatic, symptomatic (most diseases considered to be ARC), and AIDS indicator conditions). This grid is usually labeled A-1 (healthiest designation with patient over a 500 CD4 cell count and asymptomatic) to C-3 (most dire with patient under a 200 CD4 cell count with an AIDS indicator condition). In-between designations are labeled A-2, A-3, B- 1, B-2, B-3, C-1, and C-2 depending on the combination of CD4 cell count and the category of disease. See JOHN G. BARTLETT, THE JOHNS HOPKINS HOSPITAL GUIDE TO MEDICAL CARE OF PATIENTS WITH HIV INFECTION 18 (4th ed. 1994). As of 1993, any patient with a CD4 cell count below 200 is defined as having AIDS, as is any patient with a disease considered to be an AIDS indicator disease by the Centers for Disease Control. Id.
134. Brett-Smith & Friedland, supra note 20, at 35.
135. For a critical analysis of the new definition including drawbacks and advantages see Carol Levine and Gary L. Stein, What's in a Name? The Policy Implications of the CDC Definition of AIDS, 19 LAW, MED., & HEALTH CARE 278 (1991). See also Brett-Smith & Friedland, supra note 20, at 36-37 (noting that the new definition includes a much more heterogeneous HIV population and could lead to increased breaches of confidentiality because CD4 cell testing laboratories instead of physicians, will now do more reporting of AIDS cases to the CDC).
136. For a critical analysis of the new definition including drawbacks and advantages see Carol Levine and Gary L. Stein, What's in a Name? The Policy Implications of the CDC Definition of AIDS, 19 LAW, MED., & HEALTH CARE 278 (1991). See also Brett-Smith & Friedland, supra note 20, at 36-37 (noting that the new definition includes a much more heterogeneous HIV population and could lead to increased breaches of confidentiality because CD4 cell testing laboratories instead of physicians, will now do more reporting of AIDS cases to the CDC).
137. Centers for Disease Control & Prevention, U.S. Dep't of Health & Human Serv. 1993 Revised Classification System for HIV Infection and Expanded Surveillance Case Definition for AIDS Among Adolescents and Adults, 41 MORB. & MORT. WKLY. REP. NO. RR-17, at 1-4 (1992).
138. Brett-Smith & Friedland, supra note 20, at 36.
139. Centers for Disease Control & Prevention, supra note 61, at 1-4, 15.
140. BARTLETT, supra note 58, at 18.
141. Id.
142. Brett-Smith & Friedland, supra note 20, at 34.
143. Faith Colangelo & Mariana Hogan, Jail and Prisons - Reservoirs of TB Disease: Should Defendants with HIV Infection (Who Cannot Swim) Be Thrown into the Reservoir?, 20 FORDHAM URB. L.J. 467, 468 (1993) (footnote omitted) (citing a CDC finding that "TB cases occur at least three times more often in correctional settings than in the general population [and that] in larger correctional systems the incidence rate may be as much as six to eleven times the normal rate").
144. For additional reading on HIV infection and other contagious diseases in prison (including TB), see Scott Burris, Prisons, Law and Public Health: The Case for a Coordinated Response to Epidemic Disease Behind Bars, 47 U. MIAMI L. REV. 291 (1992).
145. Charles L. Daley et al., An Outbreak of Tuberculosis with Accelerated Progression Among Persons Infected with the Human Immunodeficiency Virus, 326 NEW ENG. J. MED. 231 (1992). In the normal population only 3-5% of those infected with TB actually progress to a clinically evident stage within a year from the original exposure. Id. at 235. The Daley study found that of the 30 residents living at a housing facility for HIV-infected persons, 11 developed active TB during a 106-day period after exposure (37%). Id. at 231, 235. The high percentage of active disease and the TB's rapid progression are discouraging signs for prison systems with TB incidence rates on the rise.
146. Charles L. Daley et al., An Outbreak of Tuberculosis with Accelerated Progression Among Persons Infected with the Human Immunodeficiency Virus, 326 NEW ENG. J. MED. 231 (1992). In the normal population only 3-5% of those infected with TB actually progress to a clinically evident stage within a year from the original exposure. Id. at 235. The Daley study found that of the 30 residents living at a housing facility for HIV-infected persons, 11 developed active TB during a 106-day period after exposure (37%). Id. at 231, 235. The high percentage of active disease and the TB's rapid progression are discouraging signs for prison systems with TB incidence rates on the rise.
147. Charles L. Daley et al., An Outbreak of Tuberculosis with Accelerated Progression Among Persons Infected with the Human Immunodeficiency Virus, 326 NEW ENG. J. MED. 231 (1992). In the normal population only 3-5% of those infected with TB actually progress to a clinically evident stage within a year from the original exposure. Id. at 235. The Daley study found that of the 30 residents living at a housing facility for HIV-infected persons, 11 developed active TB during a 106-day period after exposure (37%). Id. at 231, 235. The high percentage of active disease and the TB's rapid progression are discouraging signs for prison systems with TB incidence rates on the rise.
148. Colangelo & Hogan, supra note 67, at 468. The new TB is labeled multiple-drug resistant tuberculosis (MDR TB). Colangelo and Hogan cite a study that indicates "[m]ore than 90% of those who recently developed active MDR TB disease in four . . . New York City hospitals . . . were HIV-infected, and more than 80% of those persons died within four to sixteen weeks of their TB diagnosis." Id. (footnote omitted).
149. Colangelo & Hogan, supra note 67, at 468. The new TB is labeled multiple-drug resistant tuberculosis (MDR TB). Colangelo and Hogan cite a study that indicates "[m]ore than 90% of those who recently developed active MDR TB disease in four . . . New York City hospitals . . . were HIV-infected, and more than 80% of those persons died within four to sixteen weeks of their TB diagnosis." Id. (footnote omitted).
150. This example is taken from Brett-Smith & Friedland, supra note 20 at 36.
151. Id. at 37.
152. Because HIV progresses differently for many individuals, it is difficult to accurately assess or predict the future medical condition of patients: Many patients do not experience a steady decline in their overall health; often the disease exacerbates in fits and starts. An asymptomatic person may have a moderate T4 cell count that is rock-stable for years (four to six, perhaps more) then suddenly drops to severely immunocompromised levels. Some patients develop multiple AIDS-qualifying complications within a matter of months and then stabilize on treatment for the next two years. Some newly infected people do not have the expected prolonged asymptomatic period but rapidly progress to full-blown AIDS within one to three years . . . . Some patients remain problem-free for several years despite extremely low T4 cell counts (sometimes less than fifty). Id. at 38.
153. Id.
154. U.S. SENTENCING GUIDELINES MANUAL 1 (1994). The Guidelines took effect on November 1, 1987, and apply to all offenses committed on or after that date. Id. at 2.
155. U.S. SENTENCING GUIDELINES MANUAL 1 (1994). The Guidelines took effect on November 1, 1987, and apply to all offenses committed on or after that date. Id. at 2.
156. Id. at 3. For a discussion of the success of the Commission in accommodating Congress's goals, see Theresa W. Karle & Thomas Sager, Are the Federal Sentencing Guidelines Meeting Congressional Goals?: Empirical and Case Law Analysis, 40 EMORY L.J. 393, 420, 442 (1991) (concluding that the Guidelines appear to be accomplishing Congress's general goals and suggesting necessary reforms). But see Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 902 (1991) (arguing the Guidelines are a "[b]ackward step in the search for just criminal punishments").
157. Id. at 3. For a discussion of the success of the Commission in accommodating Congress's goals, see Theresa W. Karle & Thomas Sager, Are the
158. Id. at 3. For a discussion of the success of the Commission in accommodating Congress's goals, see Theresa W. Karle & Thomas Sager, Are the Federal Sentencing Guidelines Meeting Congressional Goals?: Empirical and Case Law Analysis, 40 EMORY L.J. 393, 420, 442 (1991) (concluding that the Guidelines appear to be accomplishing Congress's general goals and suggesting necessary reforms). But see Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901, 902 (1991) (arguing the Guidelines are a "[b]ackward step in the search for just criminal punishments").
159. Some crimes have statutorily mandated minimum sentences. Thus, instead of using Guideline ranges to determine the initial sentence, the judge uses the minimum set forth in the statute. This issue is further explored infra at notes 133-34 and accompanying text.
160. The more severe the crime, the higher the number, with the more serious offenses and higher numbers towards the bottom of the grid. U.S. SENTENCING GUIDELINES MANUAL Ch. 5, Pt. A, sentencing table.
161. A guide to deriving a final offense level is set forth in U.S. SENTENCING GUIDELINES MANUAL § 1B1.1.
162. Id. ch. 5, pt. A, sentencing table.
163. Id. § 4A1.1.
164. Id. ch. 5, pt. A, sentencing table. "Where the Guidelines call for imprisonment, the range must be narrow: the maximum of the range cannot exceed the minimum by more than the greater of 25 percent or six months." Id. ch. 1, pt. A, intro. 2.
165. Id. ch. 5, pt. A, sentencing table. "Where the Guidelines call for imprisonment, the range must be narrow: the maximum of the range cannot exceed the minimum by more than the greater of 25 percent or six months." Id. ch. 1, pt. A, intro. 2.
166. Id. ch. 1, pt. A, intro. 4(b).
167. Id.
168. Id.
169. Id. Perhaps the Commission should consider an amendment to the text of § 5H1.4 that would specifically address HIV infection. A proposal for such an amendment or alteration is beyond the scope of this Comment, but should be considered by future authors.
170. Id.
171. See supra notes 78-82 and accompanying text.
172. U.S. SENTENCING GUIDELINES MANUAL § 5K1.1.
173. Id. The so-called "5K1 letter" submitted by the government on behalf of a defendant has been a useful tool for federal prosecutors in persuading defendants to testify against co-defendants and other criminal associates.
174. A number of considerations may be taken into account by the sentencing court, including the usefulness of the defendant's assistance, the truthfulness of testimony provided by the defendant, and the risk of injury to the defendant or the defendant's family resulting from assistance. Id. § 5K1.1.
175. Id. ch. 5, pt. H, intro. comment.
176. Id. § 5H1.4.; see also supra note 11.
177. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837. For a discussion of the release of terminally ill patients from prison, see Marjorie P. Russell, Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners - Is the Cure Worse than the Disease?, 3 WIDENER J. PUB. L. 799, 836 (1994) (finding the federal system "essentially devoid of compassionate release mechanisms"); see also Constance Casey, Jail Time Well Served in Hospice: Inmates Aid Prison Patients, NEW ORLEANS TIMES-PICAYUNE, Sept. 10, 1995 at A10 (noting the difficulties in procuring compassionate release and discussing a prison hospice for terminally ill prisoners, many of them suffering from AIDS).
178. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837. For a discussion of the release of terminally ill patients from prison, see Marjorie P. Russell, Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners - Is the Cure Worse than the Disease?, 3 WIDENER J. PUB. L. 799, 836 (1994) (finding the federal system "essentially devoid of compassionate release mechanisms"); see also Constance Casey, Jail Time Well Served in Hospice: Inmates Aid Prison Patients, NEW ORLEANS TIMES-PICAYUNE, Sept. 10, 1995 at A10 (noting the difficulties in procuring compassionate release and discussing a prison hospice for terminally ill prisoners, many of them suffering from AIDS).
179. See generally Stacey M. Studnicki, Individualized Sentencing: Federal Sentencing Departures Based Upon Physical Condition, 1994 DET. C.L. REV. 1215 (discussing the use of extraordinary physical impairment for sentencing departures).
180. The circuits have unanimously rejected an all-or-nothing approach to departure. Thus, the sentencing courts may depart downward and still give some term of imprisonment without having to give either a full term of imprisonment or merely home detention, the suggested alternative remedy in § 5H1.4. See United States v. Slater, 971 F.2d 626 (10th Cir. 1992); United States v. Hilton, 946 F.2d 955 (1st Cir. 1991); United States v. Ghannam, 899 F.2d 327 (4th Cir. 1990).
181. The circuits have unanimously rejected an all-or-nothing approach to departure. Thus, the sentencing courts may depart downward and still give some term of imprisonment without having to give either a full term of imprisonment or merely home detention, the suggested alternative remedy in § 5H1.4. See United States v. Slater, 971 F.2d 626 (10th Cir. 1992); United States v. Hilton, 946 F.2d 955 (1st Cir. 1991); United States v. Ghannam, 899 F.2d 327 (4th Cir. 1990).
182. The circuits have unanimously rejected an all-or-nothing approach to departure. Thus, the sentencing courts may depart downward and still give some term of imprisonment without having to give either a full term of imprisonment or merely home detention, the suggested alternative remedy in § 5H1.4. See United States v. Slater, 971 F.2d 626 (10th Cir. 1992); United States v. Hilton, 946 F.2d 955 (1st Cir. 1991); United States v. Ghannam, 899 F.2d 327 (4th Cir. 1990).
183. For this Comment, it is assumed that the district court is also the sentencing court. The terms are used interchangeably.
184. See, e.g., United States v. Fisher, 55 F.3d 481, 483 (10th Cir. 1995); United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir.), cert. denied sub nom. Weinstein v. United States, 115 S. Ct. 250 (1994); United States v. Fischl, 16 F.3d 927, 929 (8th Cir. 1994).
185. See, e.g., United States v. Fisher, 55 F.3d 481, 483 (10th Cir. 1995); United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir.), cert. denied sub nom. Weinstein v. United States, 115 S. Ct. 250 (1994); United States v. Fischl, 16 F.3d 927, 929 (8th Cir. 1994).
186. See, e.g., United States v. Fisher, 55 F.3d 481, 483 (10th Cir. 1995); United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir.), cert. denied sub nom. Weinstein v. United States, 115 S. Ct. 250 (1994); United States v. Fischl, 16 F.3d 927, 929 (8th Cir. 1994).
187. See United States v. Sherman, 53 F.3d 782, 785 (7th Cir. 1995) (using a three-part test to determine the "reasonableness" of the sentencing court's departure); United States v. Boy, 19 F.3d 30 (9th Cir. 1994) (unpublished disposition) (using a clearly erroneous standard to determine whether a departure was warranted); United States v. Greenwood, 928 F.2d 645, 646 (4th Cir. 1991) (circuitously finding that the district court's departure was authorized under § 5H1.4 and therefore without error). The Supreme Court has recently held that some departures should be considered under an abuse of discretion standard. Koon v. United States, 116 S. Ct. 2035 (1996).
188. See United States v. Sherman, 53 F.3d 782, 785 (7th Cir. 1995) (using a three-part test to determine the "reasonableness" of the sentencing court's departure); United States v. Boy, 19 F.3d 30 (9th Cir. 1994) (unpublished disposition) (using a clearly erroneous standard to determine whether a departure was warranted); United States v. Greenwood, 928 F.2d 645, 646 (4th Cir. 1991) (circuitously finding that the district court's departure was authorized under § 5H1.4 and therefore without error). The Supreme Court has recently held that some departures should be considered under an abuse of discretion standard. Koon v. United States, 116 S. Ct. 2035 (1996).
189. See United States v. Sherman, 53 F.3d 782, 785 (7th Cir. 1995) (using a three-part test to determine the "reasonableness" of the sentencing court's departure); United States v. Boy, 19 F.3d 30 (9th Cir. 1994) (unpublished disposition) (using a clearly erroneous standard to determine whether a departure was warranted); United States v. Greenwood, 928 F.2d 645, 646 (4th Cir. 1991) (circuitously finding that the district court's departure was authorized under § 5H1.4 and therefore without error). The Supreme Court has recently held that some departures should be considered under an abuse of discretion standard. Koon v. United States, 116 S. Ct. 2035 (1996).
190. See United States v. Sherman, 53 F.3d 782, 785 (7th Cir. 1995) (using a three-part test to determine the "reasonableness" of the sentencing court's departure); United States v. Boy, 19 F.3d 30 (9th Cir. 1994) (unpublished disposition) (using a clearly erroneous standard to determine whether a departure was warranted); United States v. Greenwood, 928 F.2d 645, 646 (4th Cir. 1991) (circuitously finding that the district court's departure was authorized under § 5H1.4 and therefore without error). The Supreme Court has recently held that some departures should be considered under an abuse of discretion standard. Koon v. United States, 116 S. Ct. 2035 (1996).
191. United States v. Martinez-Guerrero, 987 F.2d 618, 620 (9th Cir. 1993); Slater, 971 F.2d at 635.
192. United States v. Martinez-Guerrero, 987 F.2d 618, 620 (9th Cir. 1993); Slater, 971 F.2d at 635.
193. Martinez-Guerrero, 987 F.2d at 620; Slater, 971 F.2d at 635.
194. Martinez-Guerrero, 987 F.2d at 620 (quoting Slater, 971 F.2d at 635).
195. Slater, 971 F.2d at 635.
196. See, e.g., United States v. Fisher, 55 F.3d 481, 485 (10th Cir. 1995) (remanding for determination of whether a total lower body paralysis with decubitus ulcers constituted an extraordinary physical impairment); United States v. Sherman, 53 F.3d 782, 788 (7th Cir. 1995) (remanding for determination of whether asthma was an extraordinary physical impairment and whether the Bureau of Prisons could provide adequate treatment for asthma sufferers); United States v. Carey, 895 F.2d 318, 324 (7th Cir. 1990) (remanding for particularized findings and analysis to determine whether the defendant's undergoing several serious operations for a brain tumor, combined with his age of sixty-two, supported a downward departure).
197. See, e.g., United States v. Fisher, 55 F.3d 481, 485 (10th Cir. 1995) (remanding for determination of whether a total lower body paralysis with decubitus ulcers constituted an extraordinary physical impairment); United States v. Sherman, 53 F.3d 782, 788 (7th Cir. 1995) (remanding for determination of whether asthma was an extraordinary physical impairment and whether the Bureau of Prisons could provide adequate treatment for asthma sufferers); United States v. Carey, 895 F.2d 318, 324 (7th Cir. 1990) (remanding for particularized findings and analysis to determine whether the defendant's undergoing several serious operations for a brain tumor, combined with his age of sixty-two, supported a downward departure).
198. See, e.g., United States v. Fisher, 55 F.3d 481, 485 (10th Cir. 1995) (remanding for determination of whether a total lower body paralysis with decubitus ulcers constituted an extraordinary physical impairment); United States v. Sherman, 53 F.3d 782, 788 (7th Cir. 1995) (remanding for determination of whether asthma was an extraordinary physical impairment and whether the Bureau of Prisons could provide adequate treatment for asthma sufferers); United States v. Carey, 895 F.2d 318, 324 (7th Cir. 1990) (remanding for particularized findings and analysis to determine whether the defendant's undergoing several serious operations for a brain tumor, combined with his age of sixty-two, supported a downward departure).
199. Sherman, 53 F.3d at 785. In Sherman, the district court judge stated that he suffered from asthma and knew the effects it could have on an individual, and determined that prisons were not concerned about the health needs of asthmatics. Id. The district court, after noting the obesity of the defendant, stated: [W]hen you look at the defendant and consider and look at his weight - and I can just imagine how hard his heart's pumping to get all the blood through his body - if he were ever to have an acute asthma attack in a prison setting in which was [sic] not attended to quickly, the government would find themselves defending a lawsuit, and for failure to provide immediate and necessary medical attention. Id. The judge then departed five offense levels and sentenced the defendant to probation. Unconvinced, the appellate court remanded the case for further medical findings and determinations. Id. at 788; see also United States v. McFarlane, 64 F.3d 1235, 1239 n.5 (8th Cir. 1995) (noting the district court had denied defendant's motion for a downward departure under § 5H1.4 for severe asthma).
200. Sherman, 53 F.3d at 785. In Sherman, the district court judge stated that he suffered from asthma and knew the effects it could have on an individual, and determined that prisons were not concerned about the health needs of asthmatics. Id. The district court, after noting the obesity of the defendant, stated: [W]hen you look at the defendant and consider and look at his weight - and I can just imagine how hard his heart's pumping to get all the blood through his body - if he were ever to have an acute asthma attack in a prison setting in which was [sic] not attended to quickly, the government would find themselves defending a lawsuit, and for failure to provide immediate and necessary medical attention. Id. The judge then departed five offense levels and sentenced the defendant to probation. Unconvinced, the appellate court remanded the case for further medical findings and determinations. Id. at 788; see also United States v. McFarlane, 64 F.3d 1235, 1239 n.5 (8th Cir. 1995) (noting the district court had denied defendant's motion for a downward departure under § 5H1.4 for severe asthma).
201. Sherman, 53 F.3d at 785. In Sherman, the district court judge stated that he suffered from asthma and knew the effects it could have on an individual, and determined that prisons were not concerned about the health needs of asthmatics. Id. The district court, after noting the obesity of the defendant, stated: [W]hen you look at the defendant and consider and look at his weight - and I can just imagine how hard his heart's pumping to get all the blood through his body - if he were ever to have an acute asthma attack in a prison setting in which was [sic] not attended to quickly, the government would find themselves defending a lawsuit, and for failure to provide immediate and necessary medical attention. Id. The judge then departed five offense levels and sentenced the defendant to probation. Unconvinced, the appellate court remanded the case for further medical findings and determinations. Id. at 788; see also United States v. McFarlane, 64 F.3d 1235, 1239 n.5 (8th Cir. 1995) (noting the district court had denied defendant's motion for a downward departure under § 5H1.4 for severe asthma).
202. Sherman, 53 F.3d at 785. In Sherman, the district court judge stated that he suffered from asthma and knew the effects it could have on an individual, and determined that prisons were not concerned about the health needs of asthmatics. Id. The district court, after noting the obesity of the defendant, stated: [W]hen you look at the defendant and consider and look at his weight - and I can just imagine how hard his heart's pumping to get all the blood through his body - if he were ever to have an acute asthma attack in a prison setting in which was [sic] not attended to quickly, the government would find themselves defending a lawsuit, and for failure to provide immediate and necessary medical attention. Id. The judge then departed five offense levels and sentenced the defendant to probation. Unconvinced, the appellate court remanded the case for further medical findings and determinations. Id. at 788; see also United States v. McFarlane, 64 F.3d 1235, 1239 n.5 (8th Cir. 1995) (noting the district court had denied defendant's motion for a downward departure under § 5H1.4 for severe asthma).
203. Sherman, 53 F.3d at 785. In Sherman, the district court judge stated that he suffered from asthma and knew the effects it could have on an individual, and determined that prisons were not concerned about the health needs of asthmatics. Id. The district court, after noting the obesity of the defendant, stated: [W]hen you look at the defendant and consider and look at his weight - and I can just imagine how hard his heart's pumping to get all the blood through his body - if he were ever to have an acute asthma attack in a prison setting in which was [sic] not attended to quickly, the government would find themselves defending a lawsuit, and for failure to provide immediate and necessary medical attention. Id. The judge then departed five offense levels and sentenced the defendant to probation. Unconvinced, the appellate court remanded the case for further medical findings and determinations. Id. at 788; see also United States v. McFarlane, 64 F.3d 1235, 1239 n.5 (8th Cir. 1995) (noting the district court had denied defendant's motion for a downward departure under § 5H1.4 for severe asthma).
204. It is quite possible that some judges don't believe illness should be a grounds for departure and subsequently pay no heed to § 5H1.4. Since § 5H1.4 departures are discretionary, there is little that can be done to alleviate this situation as long as the judge states on the record he or she is aware the law allows downward departures. See supra notes 97-98 and accompanying text.
205. Compare United States v. LeBlanc, 24 F.3d 340, 347 (1st Cir.) (upholding a district court decision not to depart based on the defendant's heart condition), cert. denied sub nom. Weinstein v. United States, 115 S. Ct. 250 (1994), with United States v. Little, 736 F. Supp. 71, 72 (D.N.J.) (affirming magistrate's decision that defendant's heart condition constituted an extraordinary physical impairment worthy of a downward departure), aff'd without op., 919 F.2d 137 (3d Cir. 1990), and United States v. Moy, No. 90 CR 760, 1995 WL 311441, at *34 (N.D. Ill. May 18, 1995) (unpublished sentencing memorandum and order) (finding defendant's heart disease coupled with his emotionally depressive state and wife's need for constant care warranted a downward departure).
206. Compare United States v. LeBlanc, 24 F.3d 340, 347 (1st Cir.) (upholding a district court decision not to depart based on the defendant's heart condition), cert. denied sub nom. Weinstein v. United States, 115 S. Ct. 250 (1994), with United States v. Little, 736 F. Supp. 71, 72 (D.N.J.) (affirming magistrate's decision that defendant's heart condition constituted an extraordinary physical impairment worthy of a downward departure), aff'd without op., 919 F.2d 137 (3d Cir. 1990), and United States v. Moy, No. 90 CR 760, 1995 WL 311441, at *34 (N.D. Ill. May 18, 1995) (unpublished sentencing memorandum and order) (finding defendant's heart disease coupled with his emotionally depressive state and wife's need for constant care warranted a downward departure).
207. This may be a particular problem for the indigent defendant who has not had access to thorough medical evaluations. The result will often be a lack of medical records to prove the seriousness of the illness or the number of times the illness has required treatment, especially if such treatment was rendered on an out-patient basis at a shelter or hospice. See, e.g., United States v. Adonis, 744 F. Supp. 336 (D.D.C. 1990). In Adonis, "[t]he Court initially sentenced defendant to imprisonment for three years in part based on its perception of defendant's somewhat limited intelligence." Id. at 342-43. The court reconsidered a departure under U.S. SENTENCING GUIDELINES MANUAL § 5K2.13 (reduced mental capacity) after it was made "aware of the much more substantial limitations facing the defendant that [were] revealed by expert testimony." Id. at 343. The court reduced the defendant's sentence to two years imprisonment because of the expert testimony and the defendant's vulnerability to attack by other inmates. Id.
208. This may be a particular problem for the indigent defendant who has not had access to thorough medical evaluations. The result will often be a lack of medical records to prove the seriousness of the illness or the number of times the illness has required treatment, especially if such treatment was rendered on an out-patient basis at a shelter or hospice. See, e.g., United States v. Adonis, 744 F. Supp. 336 (D.D.C. 1990). In Adonis, "[t]he Court initially sentenced defendant to imprisonment for three years in part based on its perception of defendant's somewhat limited intelligence." Id. at 342-43. The court reconsidered a departure under U.S. SENTENCING GUIDELINES MANUAL § 5K2.13 (reduced mental capacity) after it was made "aware of the much more substantial limitations facing the defendant that [were] revealed by expert testimony." Id. at 343. The court reduced the defendant's sentence to two years imprisonment because of the expert testimony and the defendant's vulnerability to attack by other inmates. Id.
209. This may be a particular problem for the indigent defendant who has not had access to thorough medical evaluations. The result will often be a lack of medical records to prove the seriousness of the illness or the number of times the illness has required treatment, especially if such treatment was rendered on an out-patient basis at a shelter or hospice. See, e.g., United States v. Adonis, 744 F. Supp. 336 (D.D.C. 1990). In Adonis, "[t]he Court initially sentenced defendant to imprisonment for three years in part based on its perception of defendant's somewhat limited intelligence." Id. at 342-43. The court reconsidered a departure under U.S. SENTENCING GUIDELINES MANUAL § 5K2.13 (reduced mental capacity) after it was made "aware of the much more substantial limitations facing the defendant that [were] revealed by expert testimony." Id. at 343. The court reduced the defendant's sentence to two years imprisonment because of the expert testimony and the defendant's vulnerability to attack by other inmates. Id.
210. This may be a particular problem for the indigent defendant who has not had access to thorough medical evaluations. The result will often be a lack of medical records to prove the seriousness of the illness or the number of times the illness has required treatment, especially if such treatment was rendered on an out-patient basis at a shelter or hospice. See, e.g., United States v. Adonis, 744 F. Supp. 336 (D.D.C. 1990). In Adonis, "[t]he Court initially sentenced defendant to imprisonment for three years in part based on its perception of defendant's somewhat limited intelligence." Id. at 342-43. The court reconsidered a departure under U.S. SENTENCING GUIDELINES MANUAL § 5K2.13 (reduced mental capacity) after it was made "aware of the much more substantial limitations facing the defendant that [were] revealed by expert testimony." Id. at 343. The court reduced the defendant's sentence to two years imprisonment because of the expert testimony and the defendant's vulnerability to attack by other inmates. Id.
211. United States v. Boy, 19 F.3d 30 (9th Cir. 1994) (unpublished disposition).
212. United States v. Roth, No. 94 CR 726 (RWS), 1995 WL 35676, at *1 (S.D.N.Y. Jan. 30, 1995) (sentencing opinion).
213. United States v. Maltese, No. 90 CR 87-19, 1993 WL 222350, at *10 (N.D. Ill. June 22, 1993).
214. United States v. Basey, No. 95-1348, 1995 WL 567356 (8th Cir. Sept. 27, 1995) (per curiam) (unpublished disposition). See also United States v. Vaughan, No. 92 CR 575-04(RWS), 1993 WL 119704 (S.D.N.Y. Apr. 15, 1993) (sentencing opinion). The Vaughan court noted that the defendant was suffering from a fatal form of lymphoma cancer but was still expected to live for eight years. The court determined this extraordinary physical impairment along with the fact that the defendant was a first-time offender, was not likely to be involved in further crime, and was the sole care provider for his ill wife, warranted a departure from a minimum prison term of eighty-seven months to a twelve-month incarceration. Id. at *1.
215. United States v. Basey, No. 95-1348, 1995 WL 567356 (8th Cir. Sept. 27, 1995) (per curiam) (unpublished disposition). See also United States v. Vaughan, No. 92 CR 575-04(RWS), 1993 WL 119704 (S.D.N.Y. Apr. 15, 1993) (sentencing opinion). The Vaughan court noted that the defendant was suffering from a fatal form of lymphoma cancer but was still expected to live for eight years. The court determined this extraordinary physical impairment along with the fact that the defendant was a first-time offender, was not likely to be involved in further crime, and was the sole care provider for his ill wife, warranted a departure from a minimum prison term of eighty-seven months to a twelve-month incarceration. Id. at *1.
216. United States v. Basey, No. 95-1348, 1995 WL 567356 (8th Cir. Sept. 27, 1995) (per curiam) (unpublished disposition). See also United States v. Vaughan, No. 92 CR 575-04(RWS), 1993 WL 119704 (S.D.N.Y. Apr. 15, 1993) (sentencing opinion). The Vaughan court noted that the defendant was suffering from a fatal form of lymphoma cancer but was still expected to live for eight years. The court determined this extraordinary physical impairment along with the fact that the defendant was a first-time offender, was not likely to be involved in further crime, and was the sole care provider for his ill wife, warranted a departure from a minimum prison term of eighty-seven months to a twelve-month incarceration. Id. at *1.
217. United States v. McClean, 822 F. Supp. 961, 962 (E.D.N.Y. 1993). The departure was warranted because of the defendant's poor health and vulnerability. Id. Additionally, a policy of the Bureau of Prisons against giving inmates metal crutches contributed to the judge's decision. Id.
218. United States v. McClean, 822 F. Supp. 961, 962 (E.D.N.Y. 1993). The departure was warranted because of the defendant's poor health and vulnerability. Id. Additionally, a policy of the Bureau of Prisons against giving inmates metal crutches contributed to the judge's decision. Id.
219. United States v. McClean, 822 F. Supp. 961, 962 (E.D.N.Y. 1993). The departure was warranted because of the defendant's poor health and vulnerability. Id. Additionally, a policy of the Bureau of Prisons against giving inmates metal crutches contributed to the judge's decision. Id.
220. United States v. Greenwood, 928 F.2d 645, 646 (4th Cir. 1991) ("The trial judge found that this severe medical impairment required treatment at the Veterans Administration Hospital and that incarceration would jeopardize this treatment.").
221. United States v. Denoncourt, 751 F. Supp. 168 (D. Haw. 1990). Noting that the defendant was more than six months pregnant at the time of sentencing, the court found that the defendant's "prior history of drug abuse and prostitution constitute an extraordinary physical impairment which might endanger her unborn child." Id. at 170. Although the court concluded that the defendant deserved punishment, the court "[did] not feel that prison [was] a suitable or desirable setting for her unborn baby." Id. at 171. Consequently, the defendant was sentenced to a "half-way house . . . for a period of six months, on twenty-four hour restriction, [where she would] be escorted to and from medical appointments by . . . staff." Id. at 171-72. Not all courts have agreed that pregnancy fits into § 5H1.4. See United States v. Pozzy, 902 F.2d 133 (1st Cir.), cert. denied, 498 U.S. 943 (1990). The Pozzy court found that the Sentencing Commission was "fully aware" that some convicted female defendants would be pregnant at the time of sentencing. Id. at 139. Thus, the Commission consciously decided pregnancy was not to be a factor in sentencing and could not be a grounds for departure. Id.
222. United States v. Denoncourt, 751 F. Supp. 168 (D. Haw. 1990). Noting that the defendant was more than six months pregnant at the time of sentencing, the court found that the defendant's "prior history of drug abuse and prostitution constitute an extraordinary physical impairment which might endanger her unborn child." Id. at 170. Although the court concluded that the defendant deserved punishment, the court "[did] not feel that prison [was] a suitable or desirable setting for her unborn baby." Id. at 171. Consequently, the defendant was sentenced to a "half-way house . . . for a period of six months, on twenty-four hour restriction, [where she would] be escorted to and from medical appointments by . . . staff." Id. at 171-72. Not all courts have agreed that pregnancy fits into § 5H1.4. See United States v. Pozzy, 902 F.2d 133 (1st Cir.), cert. denied, 498 U.S. 943 (1990). The Pozzy court found that the Sentencing Commission was "fully aware" that some convicted female defendants would be pregnant at the time of sentencing. Id. at 139. Thus, the Commission consciously decided pregnancy was not to be a factor in sentencing and could not be a grounds for departure. Id.
223. United States v. Denoncourt, 751 F. Supp. 168 (D. Haw. 1990). Noting that the defendant was more than six months pregnant at the time of sentencing, the court found that the defendant's "prior history of drug abuse and prostitution constitute an extraordinary physical impairment which might endanger her unborn child." Id. at 170. Although the court concluded that the defendant deserved punishment, the court "[did] not feel that prison [was] a suitable or desirable setting for her unborn baby." Id. at 171. Consequently, the defendant was sentenced to a "half-way house . . . for a period of six months, on twenty-four hour restriction, [where she would] be escorted to and from medical appointments by . . . staff." Id. at 171-72. Not all courts have agreed that pregnancy fits into § 5H1.4. See United States v. Pozzy, 902 F.2d 133 (1st Cir.), cert. denied, 498 U.S. 943 (1990). The Pozzy court found that the Sentencing Commission was "fully aware" that some convicted female defendants would be pregnant at the time of sentencing. Id. at 139. Thus, the Commission consciously decided pregnancy was not to be a factor in sentencing and could not be a grounds for departure. Id.
224. United States v. Denoncourt, 751 F. Supp. 168 (D. Haw. 1990). Noting that the defendant was more than six months pregnant at the time of sentencing, the court found that the defendant's "prior history of drug abuse and prostitution constitute an extraordinary physical impairment which might endanger her unborn child." Id. at 170. Although the court concluded that the defendant deserved punishment, the court "[did] not feel that prison [was] a suitable or desirable setting for her unborn baby." Id. at 171. Consequently, the defendant was sentenced to a "half-way house . . . for a period of six months, on twenty-four hour restriction, [where she would] be escorted to and from medical appointments by . . . staff." Id. at 171-72. Not all courts have agreed that pregnancy fits into § 5H1.4. See United States v. Pozzy, 902 F.2d 133 (1st Cir.), cert. denied, 498 U.S. 943 (1990). The Pozzy court found that the Sentencing Commission was "fully aware" that some convicted female defendants would be pregnant at the time of sentencing. Id. at 139. Thus, the Commission consciously decided pregnancy was not to be a factor in sentencing and could not be a grounds for departure. Id.
225. United States v. Denoncourt, 751 F. Supp. 168 (D. Haw. 1990). Noting that the defendant was more than six months pregnant at the time of sentencing, the court found that the defendant's "prior history of drug abuse and prostitution constitute an extraordinary physical impairment which might endanger her unborn child." Id. at 170. Although the court concluded that the defendant deserved punishment, the court "[did] not feel that prison [was] a suitable or desirable setting for her unborn baby." Id. at 171. Consequently, the defendant was sentenced to a "half-way house . . . for a period of six months, on twenty-four hour restriction, [where she would] be escorted to and from medical appointments by . . . staff." Id. at 171-72. Not all courts have agreed that pregnancy fits into § 5H1.4. See United States v. Pozzy, 902 F.2d 133 (1st Cir.), cert. denied, 498 U.S. 943 (1990). The Pozzy court found that the Sentencing Commission was "fully aware" that some convicted female defendants would be pregnant at the time of sentencing. Id. at 139. Thus, the Commission consciously decided pregnancy was not to be a factor in sentencing and could not be a grounds for departure. Id.
226. United States v. Denoncourt, 751 F. Supp. 168 (D. Haw. 1990). Noting that the defendant was more than six months pregnant at the time of sentencing, the court found that the defendant's "prior history of drug abuse and prostitution constitute an extraordinary physical impairment which might endanger her unborn child." Id. at 170. Although the court concluded that the defendant deserved punishment, the court "[did] not feel that prison [was] a suitable or desirable setting for her unborn baby." Id. at 171. Consequently, the defendant was sentenced to a "half-way house . . . for a period of six months, on twenty-four hour restriction, [where she would] be escorted to and from medical appointments by . . . staff." Id. at 171-72. Not all courts have agreed that pregnancy fits into § 5H1.4. See United States v. Pozzy, 902 F.2d 133 (1st Cir.), cert. denied, 498 U.S. 943 (1990). The Pozzy court found that the Sentencing Commission was "fully aware" that some convicted female defendants would be pregnant at the time of sentencing. Id. at 139. Thus, the Commission consciously decided pregnancy was not to be a factor in sentencing and could not be a grounds for departure. Id.
227. United States v. Denoncourt, 751 F. Supp. 168 (D. Haw. 1990). Noting that the defendant was more than six months pregnant at the time of sentencing, the court found that the defendant's "prior history of drug abuse and prostitution constitute an extraordinary physical impairment which might endanger her unborn child." Id. at 170. Although the court concluded that the defendant deserved punishment, the court "[did] not feel that prison [was] a suitable or desirable setting for her unborn baby." Id. at 171. Consequently, the defendant was sentenced to a "half-way house . . . for a period of six months, on twenty-four hour restriction, [where she would] be escorted to and from medical appointments by . . . staff." Id. at 171-72. Not all courts have agreed that pregnancy fits into § 5H1.4. See United States v. Pozzy, 902 F.2d 133 (1st Cir.), cert. denied, 498 U.S. 943 (1990). The Pozzy court found that the Sentencing Commission was "fully aware" that some convicted female defendants would be pregnant at the time of sentencing. Id. at 139. Thus, the Commission consciously decided pregnancy was not to be a factor in sentencing and could not be a grounds for departure. Id.
228. 977 F.2d 1264 (8th Cir. 1992).
229. Id. at 1277.
230. Id. at 1278 (quoting sentencing transcript).
231. 905 F.2d 599 (2d Cir. 1990). See also United States v. Adonis, 744 F. Supp. 336, 343 (D.D.C. 1990) (finding that the defendant's extreme vulnerability due to diminished mental capacity, among other factors, was proper grounds for a downward departure under § 5H1.4) (quoting sentencing transcript).
232. 905 F.2d 599 (2d Cir. 1990). See also United States v. Adonis, 744 F. Supp. 336, 343 (D.D.C. 1990) (finding that the defendant's extreme vulnerability due to diminished mental capacity, among other factors, was proper grounds for a downward departure under § 5H1.4) (quoting sentencing transcript).
233. Lara, 905 F.2d at 601.
234. Id. at 601, 605.
235. Id. at 603.
236. Id. at 605. The court also found that the defendant's situation was exacerbated by the fact that the only way to protect the defendant was to place him in solitary confinement, the area commonly known as the "hole." Id. at 603. One judge dissented in Lara, finding that the "[d]efendant's immature appearance, mannerisms and homosexuality do not present an extraordinary situation and are a far cry from the serious health problems contemplated by Congress and the [Sentencing] Commission." Id. at 608 (Metzner, J., dissenting). The dissenter, concerned about creating a class of defendants who by their mannerisms and appearances would garner favored treatment, went on to state, "[a] male homosexual who, by outward mannerisms, indicates his homosexuality, is not an unusual person. Different, perhaps, but not unusual." Id. at 607.
237. Id. at 605. The court also found that the defendant's situation was exacerbated by the fact that the only way to protect the defendant was to place him in solitary confinement, the area commonly known as the "hole." Id. at 603. One judge dissented in Lara, finding that the "[d]efendant's immature appearance, mannerisms and homosexuality do not present an extraordinary situation and are a far cry from the serious health problems contemplated by Congress and the [Sentencing] Commission." Id. at 608 (Metzner, J., dissenting). The dissenter, concerned about creating a class of defendants who by their mannerisms and appearances would garner favored treatment, went on to state, "[a] male homosexual who, by outward mannerisms, indicates his homosexuality, is not an unusual person. Different, perhaps, but not unusual." Id. at 607.
238. Id. at 605. The court also found that the defendant's situation was exacerbated by the fact that the only way to protect the defendant was to place him in solitary confinement, the area commonly known as the "hole." Id. at 603. One judge dissented in Lara, finding that the "[d]efendant's immature appearance, mannerisms and homosexuality do not present an extraordinary situation and are a far cry from the serious health problems contemplated by Congress and the [Sentencing] Commission." Id. at 608 (Metzner, J., dissenting). The dissenter, concerned about creating a class of defendants who by their mannerisms and appearances would garner favored treatment, went on to state, "[a] male homosexual who, by outward mannerisms, indicates his homosexuality, is not an unusual person. Different, perhaps, but not unusual." Id. at 607.
239. Id. at 605. The court also found that the defendant's situation was exacerbated by the fact that the only way to protect the defendant was to place him in solitary confinement, the area commonly known as the "hole." Id. at 603. One judge dissented in Lara, finding that the "[d]efendant's immature appearance, mannerisms and homosexuality do not present an extraordinary situation and are a far cry from the serious health problems contemplated by Congress and the [Sentencing] Commission." Id. at 608 (Metzner, J., dissenting). The dissenter, concerned about creating a class of defendants who by their mannerisms and appearances would garner favored treatment, went on to state, "[a] male homosexual who, by outward mannerisms, indicates his homosexuality, is not an unusual person. Different, perhaps, but not unusual." Id. at 607.
240. United States v. Fischl, 16 F.3d 927, 929 (8th Cir. 1993).
241. United States v. Gallego, 980 F.2d 721 (1st Cir. 1992) (per curiam) (unpublished disposition).
242. United States v. Bovee, No. 94-1424, 1994 U.S. App. LEXIS 28422, at *1 (8th Cir. Oct. 14, 1994) (unpublished disposition).
243. United States v. Castro-Romero, No. 93-1415, 1995 WL 12024, at *1 (10th Cir. Jan. 12, 1995) (unpublished disposition). The district court found that the defendant was not sufficiently infirm to warrant a downward departure. The court made this decision, in part, based on the defendant's appearance in court while being sentenced. The court stated that the "'[defendant] is standing here. He is able to walk and talk. He functions.'" Id. (quoting sentencing transcript). Accordingly, the court believed the defendant could not be seriously infirm.
244. United States v. Castro-Romero, No. 93-1415, 1995 WL 12024, at *1 (10th Cir. Jan. 12, 1995) (unpublished disposition). The district court found that the defendant was not sufficiently infirm to warrant a downward departure. The court made this decision, in part, based on the defendant's appearance in court while being sentenced. The court stated that the "'[defendant] is standing here. He is able to walk and talk. He functions.'" Id. (quoting sentencing transcript). Accordingly, the court believed the defendant could not be seriously infirm.
245. United States v. Current, No. 88-3202, 1989 WL 85738, at *2 (9th Cir. July 24, 1989) (unpublished disposition).
246. United States v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991).
247. United States v. Martinez-Guerrero, 987 F.2d 618, 621 (9th Cir. 1993).
248. United States v. Guajardo, 950 F.2d 203, 208 (5th Cir. 1991).
249. United States v. Rose, Nos. 93-5164, 93-5165, 93-5166, 1995 WL 16839, at *2 (6th Cir. Jan. 17, 1995) (per curiam) (unpublished disposition).
250. United States v. Rabins, 63 F.3d 721, 727 (8th Cir. 1995) (finding that "[w]hen a guideline 'by its plain terms makes no mention of departure below mandatory minimums,' such departure is not appropriate") (quoting United States v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992)), cert. denied, 116 S. Ct. 1031 (1996); United States v. Goff, 6 F.3d 363, 366 (6th Cir. 1993). Mandatory minimum sentences often arise in the area of drug trafficking. See 21 U.S.C. § 841 (1994) (The Comprehensive Drug Abuse Prevention and Control Act has mandatory minimum sentences ranging from five years to life imprisonment.). In both Rabins and Goffthe defendants had been convicted of drug-distribution offenses.
251. United States v. Rabins, 63 F.3d 721, 727 (8th Cir. 1995) (finding that "[w]hen a guideline 'by its plain terms makes no mention of departure below mandatory minimums,' such departure is not appropriate") (quoting United States v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992)), cert. denied, 116 S. Ct. 1031 (1996); United States v. Goff, 6 F.3d 363, 366 (6th Cir. 1993). Mandatory minimum sentences often arise in the area of drug trafficking. See 21 U.S.C. § 841 (1994) (The Comprehensive Drug Abuse Prevention and Control Act has mandatory minimum sentences ranging from five years to life imprisonment.). In both Rabins and Goffthe defendants had been convicted of drug-distribution offenses.
252. United States v. Rabins, 63 F.3d 721, 727 (8th Cir. 1995) (finding that "[w]hen a guideline 'by its plain terms makes no mention of departure below mandatory minimums,' such departure is not appropriate") (quoting United States v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992)), cert. denied, 116 S. Ct. 1031 (1996); United States v. Goff, 6 F.3d 363, 366 (6th Cir. 1993). Mandatory minimum sentences often arise in the area of drug trafficking. See 21 U.S.C. § 841 (1994) (The Comprehensive Drug Abuse Prevention and Control Act has mandatory minimum sentences ranging from five years to life imprisonment.). In both Rabins and Goffthe defendants had been convicted of drug-distribution offenses.
253. Goff, 6 F.3d at 367 (Jones, J., concurring). Judge Jones went further in attacking the statutorily mandated minimum sentences, arguing that a "'myriad of different considerations'" should be able to be taken into account in an individual's sentence. Id. He went on to criticize Congress and stated, "It may yet dawn on makers of public policy, that an unacceptable social price is being paid for [the mandated minimum sentence] folly." Id.
254. Goff, 6 F.3d at 367 (Jones, J., concurring). Judge Jones went further in attacking the statutorily mandated minimum sentences, arguing that a "'myriad of different considerations'" should be able to be taken into account in an individual's sentence. Id. He went on to criticize Congress and stated, "It may yet dawn on makers of public policy, that an unacceptable social price is being paid for [the mandated minimum sentence] folly." Id.
255. Goff, 6 F.3d at 367 (Jones, J., concurring). Judge Jones went further in attacking the statutorily mandated minimum sentences, arguing that a "'myriad of different considerations'" should be able to be taken into account in an individual's sentence. Id. He went on to criticize Congress and stated, "It may yet dawn on makers of public policy, that an unacceptable social price is being paid for [the mandated minimum sentence] folly." Id.
256. United States v. Greenwood, 928 F.2d 645, 646 (4th Cir. 1991).
257. United States v. Guajardo, 950 F.2d 203, 208 (5th Cir. 1991).
258. United States v. Maltese, No. 90 CR 87-19, 1993 WL 222350, at *10 (N.D. Ill. June 22, 1993).
259. United States v. Bovee, No. 94-1424, 1994 U.S. App. LEXIS 28422, at *1 (8th Cir. Oct. 14, 1994) (per curiam) (unpublished opinion).
260. See supra note 107.
261. Compare United States v. Martinez-Guerrero, 987 F.2d 618, 621 (9th Cir. 1993) (blindness could be accommodated) with United States v. McClean, 822 F. Supp. 961, 962 (E.D.N.Y. 1993) (departure warranted in part because defendant's metal crutches were refused to him by the Bureau of Prisons).
262. Compare United States v. Martinez-Guerrero, 987 F.2d 618, 621 (9th Cir. 1993) (blindness could be accommodated) with United States v. McClean, 822 F. Supp. 961, 962 (E.D.N.Y. 1993) (departure warranted in part because defendant's metal crutches were refused to him by the Bureau of Prisons).
263. Sentencing courts may make recommendations to the Bureau of Prisons regarding in which prison a defendant should serve his sentence. But it is ultimately the sole authority of the Bureau of Prisons to designate the place of a convict's imprisonment. 18 U.S.C. § 3621(b) (1994).
264. See supra notes 105-08 and accompanying text.
265. 751 F. Supp. 1195 (E.D. Va. 1990), aff'd on other grounds, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991).
266. 18 U.S.C. § 1201(c) (1994).
267. 18 U.S.C. §§ 371, 2251(a) (1994). The court noted the "trial record reflect[ed] a tale of unspeakable evil and tragedy narrowly averted. " DePew, 751 F. Supp. at 1196.
268. 18 U.S.C. §§ 371, 2251(a) (1994). The court noted the "trial record reflect[ed] a tale of unspeakable evil and tragedy narrowly averted. " DePew, 751 F. Supp. at 1196.
269. Id. at 1199.
270. The court stated that "cancer or various other terminal or life threatening conditions" are not extraordinary physical impairments. Id. This runs contrary to the Senate's remark in directing the Commission to produce the Guidelines that cancer could be a compelling case for reducing a term of imprisonment. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837. See note 94 and accompanying text.
271. DePew, 751 F. Supp. at 1199.
272. Id.
273. See infra subpart V.B.
274. DePew, 751 F. Supp. at 1200. The court also made clear that the defendant had a compelling need for psychiatric care. This was probably related to his criminal deviance but could have been worsened due to AIDS dementia, a possibility unrecognized by the court. Id.
275. DePew, 751 F. Supp. at 1200. The court also made clear that the defendant had a compelling need for psychiatric care. This was probably related to his criminal deviance but could have been worsened due to AIDS dementia, a possibility unrecognized by the court. Id.
276. Id.
277. Id. at 1199.
278. 49 F.3d 253 (6th Cir. 1995).
279. 21 U.S.C. § 841(a)(1) (1994).
280. Id.
281. The defendant technically argued for departure under § 5K.2 instead of § 5H1.4. This section of the Guidelines gives courts the ability to go outside a Guideline range should they find "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." U.S. SENTENCING GUIDELINES MANUAL § 5K.2.0, p.s.
282. Thomas, 49 F.3d at 260.
283. Id.
284. Id. at 260-61.
285. Id. at 261.
286. See supra notes 58-65 and accompanying text.
287. Thomas, 49 F.3d at 261.
288. 22 F.3d 109 (6th Cir. 1994).
289. Id. at 113. Since the defendant had apparently progressed past HIV infection to the clinical definition of AIDS, the issue of whether HIV infection alone might be a grounds for departure was not addressed.
290. United States v. Streat, 893 F. Supp. 754, 756-57 (N.D. Ohio 1995).
291. Id. at 756.
292. Id.
293. Id. at 757. In an unusual twist, the court refused to release Streat from prison. The court noted that Streat had no assets, medical insurance, or relatives or friends to care for him during his final days. Id. If released, Streat would have been left to die on the streets and the court found a departure under these circumstances unjust and inhumane. Id. Not all courts agree with this reasoning. A New York court found that an assistant district attorney's suggestion to keep an HIV-infected homeless defendant in prison because his medical care would be better in jail than on the streets was inappropriate: [Treating medical conditions] is not what jail is for. This position reeks with multiple injustice. It says that the only way for society to care for the ill-homeless among us is to incarcerate them. The Court will not and cannot capitulate to that thinking. To do so exonerates all of the other social institutions that a civilized community must, for its own moral and physical survival, support. This attitude also denigrates, indeed, abases the very humanity of [the defendant] and others in his position. It says that our precious freedom and liberty are unavailable after a person becomes homeless and jobless. Finally, it suggests a role of our overburdened correctional and penal system for which it was not designed - a dumping ground for the humanity that our prosecutor views as a lesser sort even though an economically better off convict would be set free. This court cannot and will not endorse views that lead to such ends. People v. Edward Suarez, 205 N.Y. L.J. 22 (1991).
294. Id. at 757. In an unusual twist, the court refused to release Streat from prison. The court noted that Streat had no assets, medical insurance, or relatives or friends to care for him during his final days. Id. If released, Streat would have been left to die on the streets and the court found a departure under these circumstances unjust and inhumane. Id. Not all courts agree with this reasoning. A New York court found that an assistant district attorney's suggestion to keep an HIV-infected homeless defendant in prison because his medical care would be better in jail than on the streets was inappropriate: [Treating medical conditions] is not what jail is for. This position reeks with multiple injustice. It says that the only way for society to care for the ill-homeless among us is to incarcerate them. The Court will not and cannot capitulate to that thinking. To do so exonerates all of the other social institutions that a civilized community must, for its own moral and physical survival, support. This attitude also denigrates, indeed, abases the very humanity of [the defendant] and others in his position. It says that our precious freedom and liberty are unavailable after a person becomes homeless and jobless. Finally, it suggests a role of our overburdened correctional and penal system for which it was not designed - a dumping ground for the humanity that our prosecutor views as a lesser sort even though an economically better off convict would be set free. This court cannot and will not endorse views that lead to such ends. People v. Edward Suarez, 205 N.Y. L.J. 22 (1991).
295. Id. at 757. In an unusual twist, the court refused to release Streat from prison. The court noted that Streat had no assets, medical insurance, or relatives or friends to care for him during his final days. Id. If released, Streat would have been left to die on the streets and the court found a departure under these circumstances unjust and inhumane. Id. Not all courts agree with this reasoning. A New York court found that an assistant district attorney's suggestion to keep an HIV-infected homeless defendant in prison because his medical care would be better in jail than on the streets was inappropriate: [Treating medical conditions] is not what jail is for. This position reeks with multiple injustice. It says that the only way for society to care for the ill-homeless among us is to incarcerate them. The Court will not and cannot capitulate to that thinking. To do so exonerates all of the other social institutions that a civilized community must, for its own moral and physical survival, support. This attitude also denigrates, indeed, abases the very humanity of [the defendant] and others in his position. It says that our precious freedom and liberty are unavailable after a person becomes homeless and jobless. Finally, it suggests a role of our overburdened correctional and penal system for which it was not designed - a dumping ground for the humanity that our prosecutor views as a lesser sort even though an economically better off convict would be set free. This court cannot and will not endorse views that lead to such ends. People v. Edward Suarez, 205 N.Y. L.J. 22 (1991).
296. 55 F.3d 1257 (7th Cir.), cert. denied, 116 S. Ct. 234 (1995).
297. 18 U.S.C. § 111 (1994).
298. Id. § 1708.
299. Woody, 55 F.3d at 1275.
300. Id.
301. Id.
302. Id. at 1276.
303. Id.
304. 31 F.3d 135 (3d Cir. 1994).
305. 18 U.S.C. § 1461 (1994).
306. Schein, 31 F.3d at 138. The district court believed that the Guideline range overstated the seriousness of the offense, especially because Schein was a first offender. Id. The appellate court remanded because these were not sufficient justifications to sentence outside of the Guideline range. Id.
307. Schein, 31 F.3d at 138. The district court believed that the Guideline range overstated the seriousness of the offense, especially because Schein was a first offender. Id. The appellate court remanded because these were not sufficient justifications to sentence outside of the Guideline range. Id.
308. Schein, 31 F.3d at 138. The district court believed that the Guideline range overstated the seriousness of the offense, especially because Schein was a first offender. Id. The appellate court remanded because these were not sufficient justifications to sentence outside of the Guideline range. Id.
309. Id.
310. Id.
311. Id.
312. These factors will be considered more extensively infra in Part V.
313. 63 F.3d 721 (8th Cir. 1995), cert. denied, 116 S. Ct. 1031 (1996).
314. 21 U.S.C. § 841(a) (1994). Because Johnson had given substantial assistance to the government in prosecuting a co-conspirator, the district court departed from the mandated 120 months and sentenced Johnson to 96 months in prison. Rabins, 63 F.3d at 726.
315. 21 U.S.C. § 841(a) (1994). Because Johnson had given substantial assistance to the government in prosecuting a co-conspirator, the district court departed from the mandated 120 months and sentenced Johnson to 96 months in prison. Rabins, 63 F.3d at 726.
316. Rabins, 63 F.3d at 727. See supra notes 133-34 and accompanying text. Johnson's argument that the district court's departure due to substantial assistance opened the door to further departure under § 5H1.4 failed. Id.
317. Rabins, 63 F.3d at 727. See supra notes 133-34 and accompanying text. Johnson's argument that the district court's departure due to substantial assistance opened the door to further departure under § 5H1.4 failed. Id.
318. Rabins, 63 F.3d at 727. See supra notes 133-34 and accompanying text. Johnson's argument that the district court's departure due to substantial assistance opened the door to further departure under § 5H1.4 failed. Id.
319. Rabins, 63 F.3d at 727.
320. Id. at 728 (citing United States v. Woody, 55 F.3d 1257, 1275 (7th Cir.), cert. denied, 116 S. Ct. 234 (1995)).
321. Id. at 728 (citing United States v. Woody, 55 F.3d 1257, 1275 (7th Cir.), cert. denied, 116 S. Ct. 234 (1995)).
322. Id.
323. Id.
324. Johnson had explained to the district court why he was not currently on medication, but the majority of the appellate court appeared to ignore his comments in weighing the significance of this fact: I'm not under any medication for HIV. Your body builds up a tolerance to the drugs used to treat HIV and AIDS, and it's best - they found it's best to wait and avoid taking it until you have to so your body builds up a tolerance and then it doesn't do you any good later on. Id. at 729 n.13.
325. The court stated: To some extent, both sides have argued this case as if it presented the abstract question whether someone with an HIV infection, or with ARC, or with AIDS, is suffering from an "extraordinary physical impairment." No doubt there is a sense in which an affirmative answer would
326. Id. at 733 (Wilson, J., dissenting) . The dissent noted that the district judge had told Johnson's lawyer to give serious consideration to appeal and that "he would 'be delighted to have some more specific guidance from the Eighth Circuit' on this issue." Id. Judge Wilson also dissented from the majority's conclusion regarding the availability of downward departures for extraordinary physical impairments in the face of statutorily mandated minimum sentences. Id. at 730-32.
327. Id. at 733 (Wilson, J., dissenting) . The dissent noted that the district judge had told Johnson's lawyer to give serious consideration to appeal and that "he would 'be delighted to have some more specific guidance from the Eighth Circuit' on this issue." Id. Judge Wilson also dissented from the majority's conclusion regarding the availability of downward departures for extraordinary physical impairments in the face of statutorily mandated minimum sentences. Id. at 730-32.
328. Id. at 733 (Wilson, J., dissenting) . The dissent noted that the district judge had told Johnson's lawyer to give serious consideration to appeal and that "he would 'be delighted to have some more specific guidance from the Eighth Circuit' on this issue." Id. Judge Wilson also dissented from the majority's conclusion regarding the availability of downward departures for extraordinary physical impairments in the face of statutorily mandated minimum sentences. Id. at 730-32.
329. Id.
330. Id. The dissent was undoubtedly disturbed by the lack of actual medical knowledge the district court had exhibited in rejecting Johnson's § 5H1.4 motion. The district judge made his decision after reviewing the medical records, but never indicated what specific knowledge regarding Johnson's condition had been garnered from the records. Id. The dissent also disagreed with the majority's conclusion that the district court had actually found against Johnson on his § 5H1.4 departure. Since the district judge had stated, "I wouldn't be upset if [I was] reversed," when he sentenced Johnson, the dissent reasoned that the district judge must have believed he did not have the power to depart downward in this case. Id. at 736. Since a § 5H1.4 departure is discretionary, the only way it may be reversed is if the district court believed it did not have the power to depart. Since the district judge indicated through his own words that he believed he might be reversed, the dissent reasoned that the only way the district judge could have believed this might happen was if the district judge also believed he did not have the power to depart in the first place. Thus, the dissent reasoned, the district judge never actually determined whether Johnson's infection was an extraordinary physical impairment. Id. This convoluted reasoning is suspect because the majority indicated that the district court's determination of departure is a question of fact that could be reviewed by an appellate court if it is clearly erroneous. Id. at 728. Thus, it could be that the district judge simply believed his decision not to depart would be reversed because it would be found clearly erroneous given Johnson's condition, not that he was without power to depart.
331. Id. The dissent was undoubtedly disturbed by the lack of actual medical knowledge the district court had exhibited in rejecting Johnson's § 5H1.4 motion. The district judge made his decision after reviewing the medical records, but never indicated what specific knowledge regarding Johnson's condition had been garnered from the records. Id. The dissent also disagreed with the majority's conclusion that the district court had actually found against Johnson on his § 5H1.4 departure. Since the district judge had stated, "I wouldn't be upset if [I was] reversed," when he sentenced Johnson, the dissent reasoned that the district judge must have believed he did not have the power to depart downward in this case. Id. at 736. Since a § 5H1.4 departure is discretionary, the only way it may be reversed is if the district court believed it did not have the power to depart. Since the district judge indicated through his own words that he believed he might be reversed, the dissent reasoned that the only way the district judge could have believed this might happen was if the district judge also believed he did not have the power to depart in the first place. Thus, the dissent reasoned, the district judge never actually determined whether Johnson's infection was an extraordinary physical impairment. Id. This convoluted reasoning is suspect because the majority indicated that the district court's determination of departure is a question of fact that could be reviewed by an appellate court if it is clearly erroneous. Id. at 728. Thus, it could be that the district judge simply believed his decision not to depart would be reversed because it would be found clearly erroneous given Johnson's condition, not that he was without power to depart.
332. Id. The dissent was undoubtedly disturbed by the lack of actual medical knowledge the district court had exhibited in rejecting Johnson's § 5H1.4 motion. The district judge made his decision after reviewing the medical records, but never indicated what specific knowledge regarding Johnson's condition had been garnered from the records. Id. The dissent also disagreed with the majority's conclusion that the district court had actually found against Johnson on his § 5H1.4 departure. Since the district judge had stated, "I wouldn't be upset if [I was] reversed," when he sentenced Johnson, the dissent reasoned that the district judge must have believed he did not have the power to depart downward in this case. Id. at 736. Since a § 5H1.4 departure is discretionary, the only way it may be reversed is if the district court believed it did not have the power to depart. Since the district judge indicated through his own words that he believed he might be reversed, the dissent reasoned that the only way the district judge could have believed this might happen was if the district judge also believed he did not have the power to depart in the first place. Thus, the dissent reasoned, the district judge never actually determined whether Johnson's infection was an extraordinary physical impairment. Id. This convoluted reasoning is suspect because the majority indicated that the district court's determination of departure is a question of fact that could be reviewed by an appellate court if it is clearly erroneous. Id. at 728. Thus, it could be that the district judge simply believed his decision not to depart would be reversed because it would be found clearly erroneous given Johnson's condition, not that he was without power to depart.
333. Id. The dissent was undoubtedly disturbed by the lack of actual medical knowledge the district court had exhibited in rejecting Johnson's § 5H1.4 motion. The district judge made his decision after reviewing the medical records, but never indicated what specific knowledge regarding Johnson's condition had been garnered from the records. Id. The dissent also disagreed with the majority's conclusion that the district court had actually found against Johnson on his § 5H1.4 departure. Since the district judge had stated, "I wouldn't be upset if [I was] reversed," when he sentenced Johnson, the dissent reasoned that the district judge must have believed he did not have the power to depart downward in this case. Id. at 736. Since a § 5H1.4 departure is discretionary, the only way it may be reversed is if the district court believed it did not have the power to depart. Since the district judge indicated through his own words that he believed he might be reversed, the dissent reasoned that the only way the district judge could have believed this might happen was if the district judge also believed he did not have the power to depart in the first place. Thus, the dissent reasoned, the district judge never actually determined whether Johnson's infection was an extraordinary physical impairment. Id. This convoluted reasoning is suspect because the majority indicated that the district court's determination of departure is a question of fact that could be reviewed by an appellate court if it is clearly erroneous. Id. at 728. Thus, it could be that the district judge simply believed his decision not to depart would be reversed because it would be found clearly erroneous given Johnson's condition, not that he was without power to depart.
334. Id. at 738-39. For instance, in one letter a doctor stated that Johnson's CD4 cell count was 643 and he had been classified as B-1. The doctor did not explain what a CD4 cell count was or what the B-1 classification meant other than it was on a scale between A-1 (most healthy) and C- 3 (least healthy). Id. at 739. The doctor certainly was classifying Johnson by the CDC definition of AIDS using the grid explained supra in footnote 58. The B-1 designation would mean Johnson's CD4 cell count was above 500 and that he currently had progressed from being asymptomatic to suffering from symptomatic conditions. This determination and its consequences are not difficult to understand once one is familiar with HIV, but without any medical knowledge and without guidance from the doctors treating Johnson, the district court could never fully have understood the implications of the doctor's letter or Johnson's current condition.
335. Id. at 738-39. For instance, in one letter a doctor stated that Johnson's CD4 cell count was 643 and he had been classified as B-1. The doctor did not explain what a CD4 cell count was or what the B-1 classification meant other than it was on a scale between A-1 (most healthy) and C-3 (least healthy). Id. at 739. The doctor certainly was classifying Johnson by the CDC definition of AIDS using the grid explained supra in footnote 58. The B-1 designation would mean Johnson's CD4 cell count was above 500 and that he currently had progressed from being asymptomatic to suffering from symptomatic conditions. This determination and its consequences are not difficult to understand once one is familiar with HIV, but without any medical knowledge and without guidance from the doctors treating Johnson, the district court could never fully have understood the implications of the doctor's letter or Johnson's current condition.
336. Id. at 733.
337. Id. at 734-35. See supra notes 109-15 and accompanying text for conditions considered extraordinary physical impairments. The dissent also noted vulnerability to physical abuse of an HIV-infected individual due to a compromised immune system could be a grounds for departure. The dissent cited United States v. Lara, 905 F.2d 599 (2d Cir. 1990) and United States v. Long, 977 F.2d 1264 (8th Cir. 1992) for this proposition. Id. See supra notes 116-23 and accompanying text for a discussion of Long and Lara.
338. Id. at 734-35. See supra notes 109-15 and accompanying text for conditions considered extraordinary physical impairments. The dissent also noted vulnerability to physical abuse of an HIV-infected individual due to a compromised immune system could be a grounds for departure. The dissent cited United States v. Lara, 905 F.2d 599 (2d Cir. 1990) and United States v. Long, 977 F.2d 1264 (8th Cir. 1992) for this proposition. Id. See supra notes 116-23 and accompanying text for a discussion of Long and Lara.
339. Id. at 734-35. See supra notes 109-15 and accompanying text for conditions considered extraordinary physical impairments. The dissent also noted vulnerability to physical abuse of an HIV-infected individual due to a compromised immune system could be a grounds for departure. The dissent cited United States v. Lara, 905 F.2d 599 (2d Cir. 1990) and United States v. Long, 977 F.2d 1264 (8th Cir. 1992) for this proposition. Id. See supra notes 116-23 and accompanying text for a discussion of Long and Lara.
340. Id. at 734-35. See supra notes 109-15 and accompanying text for conditions considered extraordinary physical impairments. The dissent also noted vulnerability to physical abuse of an HIV-infected individual due to a compromised immune system could be a grounds for departure. The dissent cited United States v. Lara, 905 F.2d 599 (2d Cir. 1990) and United States v. Long, 977 F.2d 1264 (8th Cir. 1992) for this proposition. Id. See supra notes 116-23 and accompanying text for a discussion of Long and Lara.
341. Id. at 734 (Wilson, J., dissenting). The dissent also criticized the Thomas belief that the Sentencing Commission created § 5H1.4 to address HIV and felt it "beyond dispute" that the Sentencing Commission had not taken HIV into account when proposing § 5H1.4. Id.
342. Id. at 734 (Wilson, J., dissenting). The dissent also criticized the Thomas belief that the Sentencing Commission created § 5H1.4 to address HIV and felt it "beyond dispute" that the Sentencing Commission had not taken HIV into account when proposing § 5H1.4. Id.
343. Id. at 737.
344. Id. at 741-42.
345. Id. at 742-43. The difficulties in gaining release from prison once a sentence has been imposed are many and varied. For a general overview of compassionate release programs on both the federal and state level, see Russell, supra note 94, at 817, 836 (finding the federal system "essentially devoid of compassionate release mechanisms" and a defendant's "best prospects [for release] lie in moving for a downward departure at the time of sentencing"). See also Kevin F. Sherry, AIDS-Infected Inmates, Kin Hurt by Wilson Veto, PRESS-ENTERPRISE (Riverside, CA), Oct. 18, 1995, at B1 (discussing the veto of a bill aimed at procuring the release of terminally ill prisoners, many of them HIV-infected).
346. Id. at 742-43. The difficulties in gaining release from prison once a sentence has been imposed are many and varied. For a general overview of compassionate release programs on both the federal and state level, see Russell, supra note 94, at 817, 836 (finding the federal system "essentially devoid of compassionate release mechanisms" and a defendant's "best prospects [for release] lie in moving for a downward departure at the time of sentencing"). See also Kevin F. Sherry, AIDS-Infected Inmates, Kin Hurt by Wilson Veto, PRESS-ENTERPRISE (Riverside, CA), Oct. 18, 1995, at B1 (discussing the veto of a bill aimed at procuring the release of terminally ill prisoners, many of them HIV-infected).
347. Id. at 742-43. The difficulties in gaining release from prison once a sentence has been imposed are many and varied. For a general overview of compassionate release programs on both the federal and state level, see Russell, supra note 94, at 817, 836 (finding the federal system "essentially devoid of compassionate release mechanisms" and a defendant's "best prospects [for release] lie in moving for a downward departure at the time of sentencing"). See also Kevin F. Sherry, AIDS-Infected Inmates, Kin Hurt by Wilson Veto, PRESS-ENTERPRISE (Riverside, CA), Oct. 18, 1995, at B1 (discussing the veto of a bill aimed at procuring the release of terminally ill prisoners, many of them HIV-infected).
348. Rabins, 63 F.3d at 743-44. One of the issues the dissent focused on was the spread of tuberculosis among HIV-infected inmates and the cost to the prison system of treating these diseases. See supra notes 66-70 and accompanying text for a discussion of the problems tuberculosis poses to HIV-infected inmates. See generally Colangelo & Hogan, supra note 67, at 476 n.42 (finding the cost of treating a patient suffering from drug-resistant TB often exceeds $250,000).
349. Rabins, 63 F.3d at 743-44. One of the issues the dissent focused on was the spread of tuberculosis among HIV-infected inmates and the cost to the prison system of treating these diseases. See supra notes 66-70 and accompanying text for a discussion of the problems tuberculosis poses to HIV-infected inmates. See generally Colangelo & Hogan, supra note 67, at 476 n.42 (finding the cost of treating a patient suffering from drug-resistant TB often exceeds $250,000).
350. Rabins, 63 F.3d at 743-44. One of the issues the dissent focused on was the spread of tuberculosis among HIV-infected inmates and the cost to the prison system of treating these diseases. See supra notes 66-70 and accompanying text for a discussion of the problems tuberculosis poses to HIV-infected inmates. See generally Colangelo & Hogan, supra note 67, at 476 n.42 (finding the cost of treating a patient suffering from drug-resistant TB often exceeds $250,000).
351. Rabins, 63 F.3d at 744.
352. Id.
353. The different and idiosyncratic manifestations of HIV in individuals makes it impossible to say that all defendants suffering from the clinical definition of AIDS deserve departures while those only technically defined as HIV positive do not. See supra notes 71-74 and accompanying text.
354. This does not excuse the DePew court's lack of intelligent discussion concerning downward departures for HIV-infected defendants.
355. Italy attempted to resolve the problems of sentencing HIV-infected defendants by passing a law which barred authorities from keeping HIV-positive patients in jail, regardless of their criminal history. The outcome was predictable. In one instance three men infected with HIV repeatedly robbed banks in broad daylight and without disguises, knowing they would be released if caught. See Mary W. Walsh, Is Italian AIDS Law Spreading Crime?, L.A. TIMES, Aug. 28, 1995, at A1; Daniel Williams, In Italy, Rebels Without a Cure; Brazen Robberies Called Protest of AIDS Policy, WASH. POST, Aug. 15, 1995, at D1. An Italian court recently struck the law down and ordered judges to decide on a case-by-case basis whether an HIV-infected suspect or felon should be freed. As part of that analysis, judges were directed to check on prison conditions to make sure infected prisoners are being cared for properly. See Daniel Williams, Law Freeing Inmates with AIDS Rejected; Italian Court Orders Case-by-Case Studies, WASH. POST, Oct. 19, 1995, at A34.
356. Italy attempted to resolve the problems of sentencing HIV-infected defendants by passing a law which barred authorities from keeping HIV-positive patients in jail, regardless of their criminal history. The outcome was predictable. In one instance three men infected with HIV repeatedly robbed banks in broad daylight and without disguises, knowing they would be released if caught. See Mary W. Walsh, Is Italian AIDS Law Spreading Crime?, L.A. TIMES, Aug. 28, 1995, at A1; Daniel Williams, In Italy, Rebels Without a Cure; Brazen Robberies Called Protest of AIDS Policy, WASH. POST, Aug. 15, 1995, at D1. An Italian court recently struck the law down and ordered judges to decide on a case-by-case basis whether an HIV-infected suspect or felon should be freed. As part of that analysis, judges were directed to check on prison conditions to make sure infected prisoners are being cared for properly. See Daniel Williams, Law Freeing Inmates with AIDS Rejected; Italian Court Orders Case-by-Case Studies, WASH. POST, Oct. 19, 1995, at A34.
357. Italy attempted to resolve the problems of sentencing HIV-infected defendants by passing a law which barred authorities from keeping HIV-positive patients in jail, regardless of their criminal history. The outcome was predictable. In one instance three men infected with HIV repeatedly robbed banks in broad daylight and without disguises, knowing they would be released if caught. See Mary W. Walsh, Is Italian AIDS Law Spreading Crime?, L.A. TIMES, Aug. 28, 1995, at A1; Daniel Williams, In Italy, Rebels Without a Cure; Brazen Robberies Called Protest of AIDS Policy, WASH. POST, Aug. 15, 1995, at D1. An Italian court recently struck the law down and ordered judges to decide on a case-by-case basis whether an HIV-infected suspect or felon should be freed. As part of that analysis, judges were directed to check on prison conditions to make sure infected prisoners are being cared for properly. See Daniel Williams, Law Freeing Inmates with AIDS Rejected; Italian Court Orders Case-by-Case Studies, WASH. POST, Oct. 19, 1995, at A34.
358. A prime example would be the defendant in United States v. Schein, 31 F.3d 135 (3d Cir. 1994). The defendant was a first time offender whose Guideline range was from 18 to 24 months. Id. at 138. Additionally, the defendant had been convicted of the non-violent crime of mailing obscene materials. Similarly, the Washington Post recently reported on the case of an AIDS defendant convicted of cashing $250,000 in phony checks. The defendant had already spent 17 months in jail and could have been sentenced to an additional 7 to 13 months. But the sentencing judge departed to time served on the belief that the sentencing Guidelines did not take account of AIDS and that given the defendant's poor health, "'[a] sentence under the guidelines is one [the defendant] might not be able to serve.'" Steve Bates, Judge Frees Check Forger Who Has AIDS; Patients' Advocates, Some Lawyers Applaud 'Humanitarian' Decision, WASH. POST, Dec. 5, 1995, at B3 (quoting sentencing judge).
359. A prime example would be the defendant in United States v. Schein, 31 F.3d 135 (3d Cir. 1994). The defendant was a first time offender whose Guideline range was from 18 to 24 months. Id. at 138. Additionally, the defendant had been convicted of the non-violent crime of mailing obscene materials. Similarly, the Washington Post recently reported on the case of an AIDS defendant convicted of cashing $250,000 in phony checks. The defendant had already spent 17 months in jail and could have been sentenced to an additional 7 to 13 months. But the sentencing judge departed to time served on the belief that the sentencing Guidelines did not take account of AIDS and that given the defendant's poor health, "'[a] sentence under the guidelines is one [the defendant] might not be able to serve.'" Steve Bates, Judge Frees Check Forger Who Has AIDS; Patients' Advocates, Some Lawyers Applaud 'Humanitarian' Decision, WASH. POST, Dec. 5, 1995, at B3 (quoting sentencing judge).
360. A prime example would be the defendant in United States v. Schein, 31 F.3d 135 (3d Cir. 1994). The defendant was a first time offender whose Guideline range was from 18 to 24 months. Id. at 138. Additionally, the defendant had been convicted of the non-violent crime of mailing obscene materials. Similarly, the Washington Post recently reported on the case of an AIDS defendant convicted of cashing $250,000 in phony checks. The defendant had already spent 17 months in jail and could have been sentenced to an additional 7 to 13 months. But the sentencing judge departed to time served on the belief that the sentencing Guidelines did not take account of AIDS and that given the defendant's poor health, "'[a] sentence under the guidelines is one [the defendant] might not be able to serve.'" Steve Bates, Judge Frees Check Forger Who Has AIDS; Patients' Advocates, Some Lawyers Applaud 'Humanitarian' Decision, WASH. POST, Dec. 5, 1995, at B3 (quoting sentencing judge).
361. An Illinois state case highlights the prejudices and ignorance some courts have exhibited concerning HIV infection. See People v. Dempsey, 610 N.E.2d 208 (Ill. App. Ct. 1993). Dempsey involved a defendant sentenced to seven years imprisonment after being convicted of criminal transmission of HIV. The appellate court remanded the case for resentencing after finding the sentencing judge had let improper factors influence the sentence. Id. at 227. In abusing his discretion, the sentencing judge made the following comments about the defendant and HIV: You know, what did we do with a mad dog, dog that was alleged to be rabid, mad dog? He would probably be put in a cage, as I understand the way they're handled, for about ten days or two weeks to see if he acts kind of like he's got rabies to see if he really comes through with it. In the meantime, you're sitting there having been bitten, and you don't know what to do. But if he comes through and he has to be done away with because he exhibits a slobbering or whatever the reaction is of a rabid dog, they kill that dog and have his head examined. Then they start giving injections to the little boy, the little girl, man or woman that was bitten by that dog. So what they immediately do is put him in confinement, this dog that's running wild. I'm not saying you're [the defendant] a dog, but I'm saying - I'm thinking of a theory of something occurring where it is so serious they confine the animal or the life that's causing the problem until they make a determination as to whether or not the animal is rabid, and if so, he's - well, it gets worse and they destroy him or he dies of his own disease. So we've got a problem what we're going to do with you. Even if probation were available, I'd be highly reluctant to turn you loose on the public. . . . But with a virus, you can't discriminate. The law protects them. [Employers] can't even refuse to hire them. I suppose [HIV-infected individuals] can work in a restaurant and serve food to us, work as a cook. . . . I suppose there's been too many big wheels in this world who have had this virus. It may be sometimes called a political disease. Be it as it may, it has the publicity of being a very serious ailment, and I'm not a doctor, and I don't know how serious it is, but that's what I hear. . . . . But you have a conviction by a jury after a long trial and I'm trying to obey some of these rules that hide the evidence, hide the evidence, don't reveal to the public about your position [as HIV positive]. Let everybody be innocent bystanders while you run through the crowd at will, and wherever you find a possibility spread your sperm or body fluids maybe in a way to cause a spread of this horrible disease. Why, in the olden days we had the leprosy colony, but we don't have that today. We're more modern. We let people with the HIV just run around and don't tell anybody they've got it. . . . I hope that people who hear of this [decision] will think it's best if they have the HIV virus that they start protecting the public and not be like a mad dog out in the wilds biting anything that comes along or stands still or falls over backwards. Id. at 226. While this quote is an extreme case of prejudice and ignorance, it exemplifies why courts must develop a more thorough understanding of HIV. See also Lynn S. Branham, AIDS Before the Bench, 29 THE JUDGES' J. 47 (1990) (relating the story of a Florida judge who, upon finding that the defendant suffered from AIDS, cleared and left the courtroom, refused to return to the courtroom until the bench had been cleaned, and worried that she might be at risk of contracting HIV because she had hangnails). 212 893 F. Supp. 754 (N.D. Ohio 1995). See supra notes 164-69 and accompanying text. 213 63 F.3d 721, 729 (8th Cir. 1995) (Wilson, J., dissenting), cert. denied, 116 S. Ct. 1031 (1996). See supra notes 194-206 and accompanying text.
362. An Illinois state case highlights the prejudices and ignorance some courts have exhibited concerning HIV infection. See People v. Dempsey, 610 N.E.2d 208 (Ill. App. Ct. 1993). Dempsey involved a defendant sentenced to seven years imprisonment after being convicted of criminal transmission of HIV. The appellate court remanded the case for resentencing after finding the sentencing judge had let improper factors influence the sentence. Id. at 227. In abusing his discretion, the sentencing judge made the following comments about the defendant and HIV: You know, what did we do with a mad dog, dog that was alleged to be rabid, mad dog? He would probably be put in a cage, as I understand the way they're handled, for about ten days or two weeks to see if he acts kind of like he's got rabies to see if he really comes through with it. In the meantime, you're sitting there having been bitten, and you don't know what to do. But if he comes through and he has to be done away with because he exhibits a slobbering or whatever the reaction is of a rabid dog, they kill that dog and have his head examined. Then they start giving injections to the little boy, the little girl, man or woman that was bitten by that dog. So what they immediately do is put him in confinement, this dog that's running wild. I'm not saying you're [the defendant] a dog, but I'm saying -I'm thinking of a theory of something occurring where it is so serious they confine the animal or the life that's causing the problem until they make a determination as to whether or not the animal is rabid, and if so, he's - well, it gets worse and they destroy him or he dies of his own disease. So we've got a problem what we're going to do with you. Even if probation were available, I'd be highly reluctant to turn you loose on the public. . . . But with a virus, you can't discriminate. The law protects them. [Employers] can't even refuse to hire them. I suppose [HIV-infected individuals] can work in a restaurant and serve food to us, work as a cook. . . . I suppose there's been too many big wheels in this world who have had this virus. It may be sometimes called a political disease. Be it as it may, it has the publicity of being a very serious ailment, and I'm not a doctor, and I don't know how serious it is, but that's what I hear. . . . . But you have a conviction by a jury after a long trial and I'm trying to obey some of these rules that hide the evidence, hide the evidence, don't reveal to the public about your position [as HIV positive]. Let everybody be innocent bystanders while you run through the crowd at will, and wherever you find a possibility spread your sperm or body fluids maybe in a way to cause a spread of this horrible disease. Why, in the olden days we had the leprosy colony, but we don't have that today. We're more modern. We let people with the HIV just run around and don't tell anybody they've got it. . . . I hope that people who hear of this [decision] will think it's best if they have the HIV virus that they start protecting the public and not be like a mad dog out in the wilds biting anything that comes along or stands still or falls over backwards. Id. at 226. While this quote is an extreme case of prejudice and ignorance, it exemplifies why courts must develop a more thorough understanding of HIV. See also Lynn S. Branham, AIDS Before the Bench, 29 THE JUDGES' J. 47 (1990) (relating the story of a Florida judge who, upon finding that the defendant suffered from AIDS, cleared and left the courtroom, refused to return to the courtroom until the bench had been cleaned, and worried that she might be at risk of contracting HIV because she had hangnails). 212 893 F. Supp. 754 (N.D. Ohio 1995). See supra notes 164-69 and accompanying text. 213 63 F.3d 721, 729 (8th Cir. 1995) (Wilson, J., dissenting), cert. denied, 116 S. Ct. 1031 (1996). See supra notes 194-206 and accompanying text.
363. An Illinois state case highlights the prejudices and ignorance some courts have exhibited concerning HIV infection. See People v. Dempsey, 610 N.E.2d 208 (Ill. App. Ct. 1993). Dempsey involved a defendant sentenced to seven years imprisonment after being convicted of criminal transmission of HIV. The appellate court remanded the case for resentencing after finding the sentencing judge had let improper factors influence the sentence. Id. at 227. In abusing his discretion, the sentencing judge made the following comments about the defendant and HIV: You know, what did we do with a mad dog, dog that was alleged to be rabid, mad dog? He would probably be put in a cage, as I understand the way they're handled, for about ten days or two weeks to see if he acts kind of like he's got rabies to see if he really comes through with it. In the meantime, you're sitting there having been bitten, and you don't know what to do. But if he comes through and he has to be done away with because he exhibits a slobbering or whatever the reaction is of a rabid dog, they kill that dog and have his head examined. Then they start giving injections to the little boy, the little girl, man or woman that was bitten by that dog. So what they immediately do is put him in confinement, this dog that's running wild. I'm not saying you're [the defendant] a dog, but I'm saying - I'm thinking of a theory of something occurring where it is so serious they confine the animal or the life that's causing the problem until they make a determination as to whether or not the animal is rabid, and if so, he's - well, it gets worse and they destroy him or he dies of his own disease. So we've got a problem what we're going to do with you. Even if probation were available, I'd be highly reluctant to turn you loose on the public. . . . But with a virus, you can't discriminate. The law protects them. [Employers] can't even refuse to hire them. I suppose [HIV-infected individuals] can work in a restaurant and serve food to us, work as a cook. . . . I suppose there's been too many big wheels in this world who have had this virus. It may be sometimes called a political disease. Be it as it may, it has the publicity of being a very serious ailment, and I'm not a doctor, and I don't know how serious it is, but that's what I hear. . . . . But you have a conviction by a jury after a long trial and I'm trying to obey some of these rules that hide the evidence, hide the evidence, don't reveal to the public about your position [as HIV positive]. Let everybody be innocent bystanders while you run through the crowd at will, and wherever you find a possibility spread your sperm or body fluids maybe in a way to cause a spread of this horrible disease. Why, in the olden days we had the leprosy colony, but we don't have that today. We're more modern. We let people with the HIV just run around and don't tell anybody they've got it. . . . I hope that people who hear of this [decision] will think it's best if they have the HIV virus that they start protecting the public and not be like a mad dog out in the wilds biting anything that comes along or stands still or falls over backwards. Id. at 226. While this quote is an extreme case of prejudice and ignorance, it exemplifies why courts must develop a more thorough understanding of HIV. See also Lynn S. Branham, AIDS Before the Bench, 29 THE JUDGES' J. 47 (1990) (relating the story of a Florida judge who, upon finding that the defendant suffered from AIDS, cleared and left the courtroom, refused to return to the courtroom until the bench had been cleaned, and worried that she might be at risk of contracting HIV because she had hangnails). 212 893 F. Supp. 754 (N.D. Ohio 1995). See supra notes 164-69 and accompanying text. 213 63 F.3d 721, 729 (8th Cir. 1995) (Wilson, J., dissenting), cert. denied, 116 S. Ct. 1031 (1996). See supra notes 194-206 and accompanying text.
364. An Illinois state case highlights the prejudices and ignorance some courts have exhibited concerning HIV infection. See People v. Dempsey, 610 N.E.2d 208 (Ill. App. Ct. 1993). Dempsey involved a defendant sentenced to seven years imprisonment after being convicted of criminal transmission of HIV. The appellate court remanded the case for resentencing after finding the sentencing judge had let improper factors influence the sentence. Id. at 227. In abusing his discretion, the sentencing judge made the following comments about the defendant and HIV: You know, what did we do with a mad dog, dog that was alleged to be rabid, mad dog? He would probably be put in a cage, as I understand the way they're handled, for about ten days or two weeks to see if he acts kind of like he's got rabies to see if he really comes through with it. In the meantime, you're sitting there having been bitten, and you don't know what to do. But if he comes through and he has to be done away with because he exhibits a slobbering or whatever the reaction is of a rabid dog, they kill that dog and have his head examined. Then they start giving injections to the little boy, the little girl, man or woman that was bitten by that dog. So what they immediately do is put him in confinement, this dog that's running wild. I'm not saying you're [the defendant] a dog, but I'm saying - I'm thinking of a theory of something occurring where it is so serious they confine the animal or the life that's causing the problem until they make a determination as to whether or not the animal is rabid, and if so, he's - well, it gets worse and they destroy him or he dies of his own disease. So we've got a problem what we're going to do with you. Even if probation were available, I'd be highly reluctant to turn you loose on the public. . . . But with a virus, you can't discriminate. The law protects them. [Employers] can't even refuse to hire them. I suppose [HIV-infected individuals] can work in a restaurant and serve food to us, work as a cook. . . . I suppose there's been too many big wheels in this world who have had this virus. It may be sometimes called a political disease. Be it as it may, it has the publicity of being a very serious ailment, and I'm not a doctor, and I don't know how serious it is, but that's what I hear. . . . . But you have a conviction by a jury after a long trial and I'm trying to obey some of these rules that hide the evidence, hide the evidence, don't reveal to the public about your position [as HIV positive]. Let everybody be innocent bystanders while you run through the crowd at will, and wherever you find a possibility spread your sperm or body fluids maybe in a way to cause a spread of this horrible disease. Why, in the olden days we had the leprosy colony, but we don't have that today. We're more modern. We let people with the HIV just run around and don't tell anybody they've got it. . . . I hope that people who hear of this [decision] will think it's best if they have the HIV virus that they start protecting the public and not be like a mad dog out in the wilds biting anything that comes along or stands still or falls over backwards. Id. at 226. While this quote is an extreme case of prejudice and ignorance, it exemplifies why courts must develop a more thorough understanding of HIV. See also Lynn S. Branham, AIDS Before the Bench, 29 THE JUDGES' J. 47 (1990) (relating the story of a Florida judge who, upon finding that the defendant suffered from AIDS, cleared and left the courtroom, refused to return to the courtroom until the bench had been cleaned, and worried that she might be at risk of contracting HIV because she had hangnails). 212 893 F. Supp. 754 (N.D. Ohio 1995). See supra notes 164-69 and accompanying text. 213 63 F.3d 721, 729 (8th Cir. 1995) (Wilson, J., dissenting), cert. denied, 116 S. Ct. 1031 (1996). See supra notes 194-206 and accompanying text.
365. An Illinois state case highlights the prejudices and ignorance some courts have exhibited concerning HIV infection. See People v. Dempsey, 610 N.E.2d 208 (Ill. App. Ct. 1993). Dempsey involved a defendant sentenced to seven years imprisonment after being convicted of criminal transmission of HIV. The appellate court remanded the case for resentencing after finding the sentencing judge had let improper factors influence the sentence. Id. at 227. In abusing his discretion, the sentencing judge made the following comments about the defendant and HIV: You know, what did we do with a mad dog, dog that was alleged to be rabid, mad dog? He would probably be put in a cage, as I understand the way they're handled, for about ten days or two weeks to see if he acts kind of like he's got rabies to see if he really comes through with it. In the meantime, you're sitting there having been bitten, and you don't know what to do. But if he comes through and he has to be done away with because he exhibits a slobbering or whatever the reaction is of a rabid dog, they kill that dog and have his head examined. Then they start giving injections to the little boy, the little girl, man or woman that was bitten by that dog. So what they immediately do is put him in confinement, this dog that's running wild. I'm not saying you're [the defendant] a dog, but I'm saying - I'm thinking of a theory of something occurring where it is so serious they confine the animal or the life that's causing the problem until they make a determination as to whether or not the animal is rabid, and if so, he's - well, it gets worse and they destroy him or he dies of his own disease. So we've got a problem what we're going to do with you. Even if probation were available, I'd be highly reluctant to turn you loose on the public. . . . But with a virus, you can't discriminate. The law protects them. [Employers] can't even refuse to hire them. I suppose [HIV-infected individuals] can work in a restaurant and serve food to us, work as a cook. . . . I suppose there's been too many big wheels in this world who have had this virus. It may be sometimes called a political disease. Be it as it may, it has the publicity of being a very serious ailment, and I'm not a doctor, and I don't know how serious it is, but that's what I hear. . . . . But you have a conviction by a jury after a long trial and I'm trying to obey some of these rules that hide the evidence, hide the evidence, don't reveal to the public about your position [as HIV positive]. Let everybody be innocent bystanders while you run through the crowd at will, and wherever you find a possibility spread your sperm or body fluids maybe in a way to cause a spread of this horrible disease. Why, in the olden days we had the leprosy colony, but we don't have that today. We're more modern. We let people with the HIV just run around and don't tell anybody they've got it. . . . I hope that people who hear of this [decision] will think it's best if they have the HIV virus that they start protecting the public and not be like a mad dog out in the wilds biting anything that comes along or stands still or falls over backwards. Id. at 226. While this quote is an extreme case of prejudice and ignorance, it exemplifies why courts must develop a more thorough understanding of HIV. See also Lynn S. Branham, AIDS Before the Bench, 29 THE JUDGES' J. 47 (1990) (relating the story of a Florida judge who, upon finding that the defendant suffered from AIDS, cleared and left the courtroom, refused to return to the courtroom until the bench had been cleaned, and worried that she might be at risk of contracting HIV because she had hangnails). 212 893 F. Supp. 754 (N.D. Ohio 1995). See supra notes 164-69 and accompanying text. 213 63 F.3d 721, 729 (8th Cir. 1995) (Wilson, J., dissenting), cert. denied, 116 S. Ct. 1031 (1996). See supra notes 194-206 and accompanying text.
366. An Illinois state case highlights the prejudices and ignorance some courts have exhibited concerning HIV infection. See People v. Dempsey, 610 N.E.2d 208 (Ill. App. Ct. 1993). Dempsey involved a defendant sentenced to seven years imprisonment after being convicted of criminal transmission of HIV. The appellate court remanded the case for resentencing after finding the sentencing judge had let improper factors influence the sentence. Id. at 227. In abusing his discretion, the sentencing judge made the following comments about the defendant and HIV: You know, what did we do with a mad dog, dog that was alleged to be rabid, mad dog? He would probably be put in a cage, as I understand the way they're handled, for about ten days or two weeks to see if he acts kind of like he's got rabies to see if he really comes through with it. In the meantime, you're sitting there having been bitten, and you don't know what to do. But if he comes through and he has to be done away with because he exhibits a slobbering or whatever the reaction is of a rabid dog, they kill that dog and have his head examined. Then they start giving injections to the little boy, the little girl, man or woman that was bitten by that dog. So what they immediately do is put him in confinement, this dog that's running wild. I'm not saying you're [the defendant] a dog, but I'm saying - I'm thinking of a theory of something occurring where it is so serious they confine the animal or the life that's causing the problem until they make a determination as to whether or not the animal is rabid, and if so, he's - well, it gets worse and they destroy him or he dies of his own disease. So we've got a problem what we're going to do with you. Even if probation were available, I'd be highly reluctant to turn you loose on the public. . . . But with a virus, you can't discriminate. The law protects them. [Employers] can't even refuse to hire them. I suppose [HIV-infected individuals] can work in a restaurant and serve food to us, work as a cook. . . . I suppose there's been too many big wheels in this world who have had this virus. It may be sometimes called a political disease. Be it as it may, it has the publicity of being a very serious ailment, and I'm not a doctor, and I don't know how serious it is, but that's what I hear. . . . . But you have a conviction by a jury after a long trial and I'm trying to obey some of these rules that hide the evidence, hide the evidence, don't reveal to the public about your position [as HIV positive]. Let everybody be innocent bystanders while you run through the crowd at will, and wherever you find a possibility spread your sperm or body fluids maybe in a way to cause a spread of this horrible disease. Why, in the olden days we had the leprosy colony, but we don't have that today. We're more modern. We let people with the HIV just run around and don't tell anybody they've got it. . . . I hope that people who hear of this [decision] will think it's best if they have the HIV virus that they start protecting the public and not be like a mad dog out in the wilds biting anything that comes along or stands still or falls over backwards. Id. at 226. While this quote is an extreme case of prejudice and ignorance, it exemplifies why courts must develop a more thorough understanding of HIV. See also Lynn S. Branham, AIDS Before the Bench, 29 THE JUDGES' J. 47 (1990) (relating the story of a Florida judge who, upon finding that the defendant suffered from AIDS, cleared and left the courtroom, refused to return to the courtroom until the bench had been cleaned, and worried that she might be at risk of contracting HIV because she had hangnails). 212 893 F. Supp. 754 (N.D. Ohio 1995). See supra notes 164-69 and accompanying text. 213 63 F.3d 721, 729 (8th Cir. 1995) (Wilson, J., dissenting), cert. denied, 116 S. Ct. 1031 (1996). See supra notes 194-206 and accompanying text.
367. An Illinois state case highlights the prejudices and ignorance some courts have exhibited concerning HIV infection. See People v. Dempsey, 610 N.E.2d 208 (Ill. App. Ct. 1993). Dempsey involved a defendant sentenced to seven years imprisonment after being convicted of criminal transmission of HIV. The appellate court remanded the case for resentencing after finding the sentencing judge had let improper factors influence the sentence. Id. at 227. In abusing his discretion, the sentencing judge made the following comments about the defendant and HIV: You know, what did we do with a mad dog, dog that was alleged to be rabid, mad dog? He would probably be put in a cage, as I understand the way they're handled, for about ten days or two weeks to see if he acts kind of like he's got rabies to see if he really comes through with it. In the meantime, you're sitting there having been bitten, and you don't know what to do. But if he comes through and he has to be done away with because he exhibits a slobbering or whatever the reaction is of a rabid dog, they kill that dog and have his head examined. Then they start giving injections to the little boy, the little girl, man or woman that was bitten by that dog. So what they immediately do is put him in confinement, this dog that's running wild. I'm not saying you're [the defendant] a dog, but I'm saying - I'm thinking of a theory of something occurring where it is so serious they confine the animal or the life that's causing the problem until they make a determination as to whether or not the animal is rabid, and if so, he's - well, it gets worse and they destroy him or he dies of his own disease. So we've got a problem what we're going to do with you. Even if probation were available, I'd be highly reluctant to turn you loose on the public. . . . But with a virus, you can't discriminate. The law protects them. [Employers] can't even refuse to hire them. I suppose [HIV-infected individuals] can work in a restaurant and serve food to us, work as a cook. . . . I suppose there's been too many big wheels in this world who have had this virus. It may be sometimes called a political disease. Be it as it may, it has the publicity of being a very serious ailment, and I'm not a doctor, and I don't know how serious it is, but that's what I hear. . . . . But you have a conviction by a jury after a long trial and I'm trying to obey some of these rules that hide the evidence, hide the evidence, don't reveal to the public about your position [as HIV positive]. Let everybody be innocent bystanders while you run through the crowd at will, and wherever you find a possibility spread your sperm or body fluids maybe in a way to cause a spread of this horrible disease. Why, in the olden days we had the leprosy colony, but we don't have that today. We're more modern. We let people with the HIV just run around and don't tell anybody they've got it. . . . I hope that people who hear of this [decision] will think it's best if they have the HIV virus that they start protecting the public and not be like a mad dog out in the wilds biting anything that comes along or stands still or falls over backwards. Id. at 226. While this quote is an extreme case of prejudice and ignorance, it exemplifies why courts must develop a more thorough understanding of HIV. See also Lynn S. Branham, AIDS Before the Bench, 29 THE JUDGES' J. 47 (1990) (relating the story of a Florida judge who, upon finding that the defendant suffered from AIDS, cleared and left the courtroom, refused to return to the courtroom until the bench had been cleaned, and worried that she might be at risk of contracting HIV because she had hangnails). 212 893 F. Supp. 754 (N.D. Ohio 1995). See supra notes 164-69 and accompanying text. 213 63 F.3d 721, 729 (8th Cir. 1995) (Wilson, J., dissenting), cert. denied, 116 S. Ct. 1031 (1996). See supra notes 194-206 and accompanying text.
368. An Illinois state case highlights the prejudices and ignorance some courts have exhibited concerning HIV infection. See People v. Dempsey, 610 N.E.2d 208 (Ill. App. Ct. 1993). Dempsey involved a defendant sentenced to seven years imprisonment after being convicted of criminal transmission of HIV. The appellate court remanded the case for resentencing after finding the sentencing judge had let improper factors influence the sentence. Id. at 227. In abusing his discretion, the sentencing judge made the following comments about the defendant and HIV: You know, what did we do with a mad dog, dog that was alleged to be rabid, mad dog? He would probably be put in a cage, as I understand the way they're handled, for about ten days or two weeks to see if he acts kind of like he's got rabies to see if he really comes through with it. In the meantime, you're sitting there having been bitten, and you don't know what to do. But if he comes through and he has to be done away with because he exhibits a slobbering or whatever the reaction is of a rabid dog, they kill that dog and have his head examined. Then they start giving injections to the little boy, the little girl, man or woman that was bitten by that dog. So what they immediately do is put him in confinement, this dog that's running wild. I'm not saying you're [the defendant] a dog, but I'm saying - I'm thinking of a theory of something occurring where it is so serious they confine the animal or the life that's causing the problem until they make a determination as to whether or not the animal is rabid, and if so, he's - well, it gets worse and they destroy him or he dies of his own disease. So we've got a problem what we're going to do with you. Even if probation were available, I'd be highly reluctant to turn you loose on the public. . . . But with a virus, you can't discriminate. The law protects them. [Employers] can't even refuse to hire them. I suppose [HIV-infected individuals] can work in a restaurant and serve food to us, work as a cook. . . . I suppose there's been too many big wheels in this world who have had this virus. It may be sometimes called a political disease. Be it as it may, it has the publicity of being a very serious ailment, and I'm not a doctor, and I don't know how serious it is, but that's what I hear. . . . . But you have a conviction by a jury after a long trial and I'm trying to obey some of these rules that hide the evidence, hide the evidence, don't reveal to the public about your position [as HIV positive]. Let everybody be innocent bystanders while you run through the crowd at will, and wherever you find a possibility spread your sperm or body fluids maybe in a way to cause a spread of this horrible disease. Why, in the olden days we had the leprosy colony, but we don't have that today. We're more modern. We let people with the HIV just run around and don't tell anybody they've got it. . . . I hope that people who hear of this [decision] will think it's best if they have the HIV virus that they start protecting the public and not be like a mad dog out in the wilds biting anything that comes along or stands still or falls over backwards. Id. at 226. While this quote is an extreme case of prejudice and ignorance, it exemplifies why courts must develop a more thorough understanding of HIV. See also Lynn S. Branham, AIDS Before the Bench, 29 THE JUDGES' J. 47 (1990) (relating the story of a Florida judge who, upon finding that the defendant suffered from AIDS, cleared and left the courtroom, refused to return to the courtroom until the bench had been cleaned, and worried that she might be at risk of contracting HIV because she had hangnails). 212 893 F. Supp. 754 (N.D. Ohio 1995). See supra notes 164-69 and accompanying text. 213 63 F.3d 721, 729 (8th Cir. 1995) (Wilson, J., dissenting), cert. denied, 116 S. Ct. 1031 (1996). See supra notes 194-206 and accompanying text.
369. See Nolley v. County of Erie, 776 F. Supp. 715 (W.D.N.Y. 1991); Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988).
370. See Nolley v. County of Erie, 776 F. Supp. 715 (W.D.N.Y. 1991); Doe v. Dolton Elementary Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988).
371. See supra notes 71-74 and accompanying text.
372. For an explanation of the B-1 designation, see supra note 58.
373. The defendant in Rabins had already had a bout of Herpes Zoster, a symptomatic disease often associated as an ARC. 63 F.3d at 741.
374. See supra note 108.
375. Lawyers would also be wise to attempt to provide the sentencing judge with as much information on HIV illness and their clients' conditions as possible. A lawyer's presentation of experts and medical records can only help. Unfortunately, the cost of doing so may be prohibitive for many poor defendants, again presenting a dichotomy often highlighted in the legal system: a wealthy defendant can produce evidence which convinces a judge that a departure is warranted while a poor defendant in a similar health situation cannot. This further emphasizes the need of courts to self-educate themselves about HIV in order to provide equal justice for all. See Hugh Aynesworth, Prosecutors did Little to Contest Tucker's Sentence; Doctor's Testimony for Defense Wasn't Countered, WASH. TIMES, Aug. 21, 1996, at A10 (finding testimony of defendant's doctors regarding defendant's need for a liver transplant influential in gaining downward departure).
376. The Rabins court was told the defendant's CD4 cell count was 643 but had no idea what the CD4 count meant, making a valuable piece of medical information effectively useless. 63 F.3d at 739.
377. See supra notes 28-34 and accompanying text.
378. See supra notes 58-65 and accompanying text.
379. Researchers have noted that "[s]ome patients remain problem-free for several years despite extremely low [CD4] cell counts (sometimes less than fifty)." Brett-Smith & Friedland, supra note 20, at 38.
380. Numerous cases have challenged and continue to challenge deplorable prison conditions as cruel and unusual under the Eighth Amendment of the Constitution. See McCord v. Maggio, 927 F.2d 844, 846-47 (5th Cir. 1991) (finding an Eighth Amendment violation because prisoner had to live and sleep in a cell flooded with sewage and foul water); French v. Owens, 777 F.2d 1250 (7th Cir. 1985) (finding cruel and unusual punishment due to double-celling of inmates, inadequate ventilation, poor lighting, a lack of hot water, and unsanitary kitchen conditions), cert. denied, 479 U.S. 817 (1986); Ramos v. Lamm, 639 F.2d 559 (10th Cir.) (finding Eighth Amendment violation due to excessive mold and fungus growth, extensive rodent and insect infestation, unsanitary kitchen conditions, and inadequate medical care), cert. denied, 450 U.S. 1041 (1981); Women Prisoners v. District of Columbia, 877 F. Supp. 634, 670 (D.D.C. 1994) (finding an Eighth Amendment violation due to overcrowding, infestation of roaches, inadequate bathing and toilet facilities, and uncovered dumpsters).
381. Numerous cases have challenged and continue to challenge deplorable prison conditions as cruel and unusual under the Eighth Amendment of the Constitution. See McCord v. Maggio, 927 F.2d 844, 846-47 (5th Cir. 1991) (finding an Eighth Amendment violation because prisoner had to live and sleep in a cell flooded with sewage and foul water); French v. Owens, 777 F.2d 1250 (7th Cir. 1985) (finding cruel and unusual punishment due to double-celling of inmates, inadequate ventilation, poor lighting, a lack of hot water, and unsanitary kitchen conditions), cert. denied, 479 U.S. 817 (1986); Ramos v. Lamm, 639 F.2d 559 (10th Cir.) (finding Eighth Amendment violation due to excessive mold and fungus growth, extensive rodent and insect infestation, unsanitary kitchen conditions, and inadequate medical care), cert. denied, 450 U.S. 1041 (1981); Women Prisoners v. District of Columbia, 877 F. Supp. 634, 670 (D.D.C. 1994) (finding an Eighth Amendment violation due to overcrowding, infestation of roaches, inadequate bathing and toilet facilities, and uncovered dumpsters).
382. Numerous cases have challenged and continue to challenge deplorable prison conditions as cruel and unusual under the Eighth Amendment of the Constitution. See McCord v. Maggio, 927 F.2d 844, 846-47 (5th Cir. 1991) (finding an Eighth Amendment violation because prisoner had to live and sleep in a cell flooded with sewage and foul water); French v. Owens, 777 F.2d 1250 (7th Cir. 1985) (finding cruel and unusual punishment due to double-celling of inmates, inadequate ventilation, poor lighting, a lack of hot water, and unsanitary kitchen conditions), cert. denied, 479 U.S. 817 (1986); Ramos v. Lamm, 639 F.2d 559 (10th Cir.) (finding Eighth Amendment violation due to excessive mold and fungus growth, extensive rodent and insect infestation, unsanitary kitchen conditions, and inadequate medical care), cert. denied, 450 U.S. 1041 (1981); Women Prisoners v. District of Columbia, 877 F. Supp. 634, 670 (D.D.C. 1994) (finding an Eighth Amendment violation due to overcrowding, infestation of roaches, inadequate bathing and toilet facilities, and uncovered dumpsters).
383. Numerous cases have challenged and continue to challenge deplorable prison conditions as cruel and unusual under the Eighth Amendment of the Constitution. See McCord v. Maggio, 927 F.2d 844, 846-47 (5th Cir. 1991) (finding an Eighth Amendment violation because prisoner had to live and sleep in a cell flooded with sewage and foul water); French v. Owens, 777 F.2d 1250 (7th Cir. 1985) (finding cruel and unusual punishment due to double-celling of inmates, inadequate ventilation, poor lighting, a lack of hot water, and unsanitary kitchen conditions), cert. denied, 479 U.S. 817 (1986); Ramos v. Lamm, 639 F.2d 559 (10th Cir.) (finding Eighth Amendment violation due to excessive mold and fungus growth, extensive rodent and insect infestation, unsanitary kitchen conditions, and inadequate medical care), cert. denied, 450 U.S. 1041 (1981); Women Prisoners v. District of Columbia, 877 F. Supp. 634, 670 (D.D.C. 1994) (finding an Eighth Amendment violation due to overcrowding, infestation of roaches, inadequate bathing and toilet facilities, and uncovered dumpsters).
384. See Nancy N. Dubler & Victor W. Sidel, AIDS and the Prison System, in A DISEASE OF SOCIETY: CULTURAL AND INSTITUTIONAL RESPONSES TO AIDS 71, 72-75 (Dorothy Nelkin et al. eds., 1991) ("AIDS has flourished in [the prison] environment so ripe for the spread of infectious disease."); see also Burns, supra note 68 (finding prisons contain high risk populations for HIV, TB, and other communicable diseases); Colangelo & Hogan, supra note 67, at 467 (finding "[l]ock-up facilities, jails and prisons are TB breeding grounds").
385. See Nancy N. Dubler & Victor W. Sidel, AIDS and the Prison System, in A DISEASE OF SOCIETY: CULTURAL AND INSTITUTIONAL RESPONSES TO AIDS 71, 72-75
386. See Nancy N. Dubler & Victor W. Sidel, AIDS and the Prison System, in A DISEASE OF SOCIETY: CULTURAL AND INSTITUTIONAL RESPONSES TO AIDS 71, 72-75 (Dorothy Nelkin et al. eds., 1991) ("AIDS has flourished in [the prison] environment so ripe for the spread of infectious disease."); see also Burns, supra note 68 (finding prisons contain high risk populations for HIV, TB, and other communicable diseases); Colangelo & Hogan, supra note 67, at 467 (finding "[l]ock-up facilities, jails and prisons are TB breeding grounds").
387. Colangelo & Hogan, supra note 67, at 476.
388. AIDS has become the leading killer of inmates in Texas prisons, more than doubling the second leading cause of death (heart disease). Richard Steward & Patty Reinert, Execution isn't the No. 1 Killer in Texas Prisons: AIDS Is, Hous. CHRON., Aug. 18, 1996, at 1.
389. See Harris v. Thigpen, 727 F. Supp. 1564, 1577-78 (M.D. Ala. 1990) ("AIDS infected inmates are not constitutionally entitled to the best treatment, rather, they are entitled to what is reasonable."), aff'd in part, vacated in part, 941 F.2d 1495 (11th Cir. 1991); see AIDS PRACTICE MANUAL: A LEGAL & EDUCATIONAL GUIDE § 13.5, at 29 & n.114 (Paul Albert et al. eds., 3d ed. 1992) (citing a study which found that in New York State prisons "over twenty-five percent of the [AIDS] cases, the diagnosis of AIDS was first made at autopsy"); Dubler & Sidel, supra note 225, at 74 (finding that "in January 1990 forty-one states (plus the District of Columbia, Puerto Rico, and the Virgin Islands) were ordered to . . . improve . . . medical care."); See also THEODORE M. HAMMETT ET AL., U.S. DEP'T OF JUSTICE, 1992 UPDATE: AIDS IN CORRECTIONAL FACILITIES 67 (1994) (citing testimony that indicated impediments to proper care for HIV-infected inmates includes "inadequate facilities, poorly trained staff, high costs of medication and care, and severe budget constraints"). But see United States v. Streat, 893 F. Supp. 754 (N.D. Ohio 1995). In Streat, a defendant was not released because he had no medical insurance or relatives to care for him. His care while in prison was better than that available to him if released. Id. at 757.
390. See Harris v. Thigpen, 727 F. Supp. 1564, 1577-78 (M.D. Ala. 1990) ("AIDS infected inmates are not constitutionally entitled to the best treatment, rather, they are entitled to what is reasonable."), aff'd in part, vacated in part, 941 F.2d 1495 (11th Cir. 1991); see AIDS PRACTICE MANUAL: A LEGAL & EDUCATIONAL GUIDE § 13.5, at 29 & n.114 (Paul Albert et al. eds., 3d ed. 1992) (citing a study which found that in New York State prisons "over twenty-five percent of the [AIDS] cases, the diagnosis of AIDS was first made at autopsy"); Dubler & Sidel, supra note 225, at 74 (finding that "in January 1990 forty-one states (plus the District of Columbia, Puerto Rico, and the Virgin Islands) were ordered to . . . improve . . . medical care."); See also THEODORE M. HAMMETT ET AL., U.S. DEP'T OF JUSTICE, 1992 UPDATE: AIDS IN CORRECTIONAL FACILITIES 67 (1994) (citing testimony that indicated impediments to proper care for HIV-infected inmates includes "inadequate facilities, poorly trained staff, high costs of medication and care, and severe budget constraints"). But see United States v. Streat, 893 F. Supp. 754 (N.D. Ohio 1995). In Streat, a defendant was not released because he had no medical insurance or relatives to care for him. His care while in prison was better than that available to him if released. Id. at 757.
391. See Harris v. Thigpen, 727 F. Supp. 1564, 1577-78 (M.D. Ala. 1990) ("AIDS infected inmates are not constitutionally entitled to the best treatment, rather, they are entitled to what is reasonable."), aff'd in part, vacated in part, 941 F.2d 1495 (11th Cir. 1991); see AIDS PRACTICE MANUAL: A LEGAL & EDUCATIONAL GUIDE § 13.5, at 29 & n.114 (Paul Albert et al. eds., 3d ed. 1992) (citing a study which found that in New York State prisons "over twenty-five percent of the [AIDS] cases, the diagnosis of AIDS was first made at autopsy"); Dubler & Sidel, supra note 225, at 74 (finding that "in January 1990 forty-one states (plus the District of Columbia, Puerto Rico, and the Virgin Islands) were ordered to . . . improve . . . medical care."); See also THEODORE M. HAMMETT ET AL., U.S. DEP'T OF JUSTICE, 1992 UPDATE: AIDS IN CORRECTIONAL FACILITIES 67 (1994) (citing testimony that indicated impediments to proper care for HIV-infected inmates includes "inadequate facilities, poorly trained staff, high costs of medication and care, and severe budget constraints"). But see United States v. Streat, 893 F. Supp. 754 (N.D. Ohio 1995). In Streat, a defendant was not released because he had no medical insurance or relatives to care for him. His care while in prison was better than that available to him if released. Id. at 757.
392. See Harris v. Thigpen, 727 F. Supp. 1564, 1577-78 (M.D. Ala. 1990) ("AIDS infected inmates are not constitutionally entitled to the best treatment, rather, they are entitled to what is reasonable."), aff'd in part, vacated in part, 941 F.2d 1495 (11th Cir. 1991); see AIDS PRACTICE MANUAL: A LEGAL & EDUCATIONAL GUIDE § 13.5, at 29 & n.114 (Paul Albert et al. eds., 3d ed. 1992) (citing a study which found that in New York State prisons "over twenty-five percent of the [AIDS] cases, the diagnosis of AIDS was first made at autopsy"); Dubler & Sidel, supra note 225, at 74 (finding that "in January 1990 forty-one states (plus the District of Columbia, Puerto Rico, and the Virgin Islands) were ordered to . . . improve . . . medical care."); See also THEODORE M. HAMMETT ET AL., U.S. DEP'T OF JUSTICE, 1992 UPDATE: AIDS IN CORRECTIONAL FACILITIES 67 (1994) (citing testimony that indicated impediments to proper care for HIV-infected inmates includes "inadequate facilities, poorly trained staff, high costs of medication and care, and severe budget constraints"). But see United States v. Streat, 893 F. Supp. 754 (N.D. Ohio 1995). In Streat, a defendant was not released because he had no medical insurance or relatives to care for him. His care while in prison was better than that available to him if released. Id. at 757.
393. See Harris v. Thigpen, 727 F. Supp. 1564, 1577-78 (M.D. Ala. 1990) ("AIDS infected inmates are not constitutionally entitled to the best treatment, rather, they are entitled to what is reasonable."), aff'd in part, vacated in part, 941 F.2d 1495 (11th Cir. 1991); see AIDS PRACTICE MANUAL: A LEGAL & EDUCATIONAL GUIDE § 13.5, at 29 & n.114 (Paul Albert et al. eds., 3d ed. 1992) (citing a study which found that in New York State prisons "over twenty-five percent of the [AIDS] cases, the diagnosis of AIDS was first made at autopsy"); Dubler & Sidel, supra note 225, at 74 (finding that "in January 1990 forty-one states (plus the District of Columbia, Puerto Rico, and the Virgin Islands) were ordered to . . . improve . . . medical care."); See also THEODORE M. HAMMETT ET AL., U.S. DEP'T OF JUSTICE, 1992 UPDATE: AIDS IN CORRECTIONAL FACILITIES 67 (1994) (citing testimony that indicated impediments to proper care for HIV-infected inmates includes "inadequate facilities, poorly trained staff, high costs of medication and care, and severe budget constraints"). But see United States v. Streat, 893 F. Supp. 754 (N.D. Ohio 1995). In Streat, a defendant was not released because he had no medical insurance or relatives to care for him. His care while in prison was better than that available to him if released. Id. at 757.
394. See Harris v. Thigpen, 727 F. Supp. 1564, 1577-78 (M.D. Ala. 1990) ("AIDS infected inmates are not constitutionally entitled to the best treatment, rather, they are entitled to what is reasonable."), aff'd in part, vacated in part, 941 F.2d 1495 (11th Cir. 1991); see AIDS PRACTICE MANUAL: A LEGAL & EDUCATIONAL GUIDE § 13.5, at 29 & n.114 (Paul Albert et al. eds., 3d ed. 1992) (citing a study which found that in New York State prisons "over twenty-five percent of the [AIDS] cases, the diagnosis of AIDS was first made at autopsy"); Dubler & Sidel, supra note 225, at 74 (finding that "in January 1990 forty-one states (plus the District of Columbia, Puerto Rico, and the Virgin Islands) were ordered to . . . improve . . . medical care."); See also THEODORE M. HAMMETT ET AL., U.S. DEP'T OF JUSTICE, 1992 UPDATE: AIDS IN CORRECTIONAL FACILITIES 67 (1994) (citing testimony that indicated impediments to proper care for HIV-infected inmates includes "inadequate facilities, poorly trained staff, high costs of medication and care, and severe budget constraints"). But see United States v. Streat, 893 F. Supp. 754 (N.D. Ohio 1995). In Streat, a defendant was not released because he had no medical insurance or relatives to care for him. His care while in prison was better than that available to him if released. Id. at 757.
395. Gomez v. United States, 725 F. Supp. 526, 527 (S.D. Fla. 1989), rev'd on other grounds, 899 F.2d 1124 (11th Cir. 1990). The district court in Gomez found that the federal prison in Miami had an infirmary but not a hospital, and certain drugs necessary to prolong the petitioner's life were unavailable. Id. An AIDS expert testified at a hearing that the federal prison's AIDS treatment plan was inadequate and that the prison had actually misdiagnosed the level of progression of the prisoner's AIDS. Id. The appellate court reversed the district court's holding because the grant of bail pending consideration of the habeas corpus petition gave the prisoner "more relief on a preliminary basis than he would be entitled to if he ultimately prevail[ed] on his constitutional claims." 899 F.2d at 1127. The appellate court also found that the federal facility in Springfield, Missouri, could treat the prisoner adequately and that if there was an Eighth Amendment violation the proper remedy was discontinuance of any improper practices, but not release from confinement. Id. at 1126. How a prisoner continually in court in Miami and housed in a Miami correctional facility will benefit from the proper medical procedures offered in Springfield, Missouri, was never explained. Additionally, recent attacks on the quality of medicine at the medical facility at Springfield render the Eleventh Circuit's reasoning poorly founded. See infra note 230.
396. Gomez v. United States, 725 F. Supp. 526, 527 (S.D. Fla. 1989), rev'd on other grounds, 899 F.2d 1124 (11th Cir. 1990). The district court in Gomez found that the federal prison in Miami had an infirmary but not a hospital, and certain drugs necessary to prolong the petitioner's life were unavailable. Id. An AIDS expert testified at a hearing that the federal prison's AIDS treatment plan was inadequate and that the prison had actually misdiagnosed the level of progression of the prisoner's AIDS. Id. The appellate court reversed the district court's holding because the grant of bail pending consideration of the habeas corpus petition gave the prisoner "more relief on a preliminary basis than he would be entitled to if he ultimately prevail[ed] on his constitutional claims." 899 F.2d at 1127. The appellate court also found that the federal facility in Springfield, Missouri, could treat the prisoner adequately and that if there was an Eighth Amendment violation the proper remedy was discontinuance of any improper practices, but not release from confinement. Id. at 1126. How a prisoner continually in court in Miami and housed in a Miami correctional facility will benefit from the proper medical procedures offered in Springfield, Missouri, was never explained. Additionally, recent attacks on the quality of medicine at the medical facility at Springfield render the Eleventh Circuit's reasoning poorly founded. See infra note 230.
397. Gomez v. United States, 725 F. Supp. 526, 527 (S.D. Fla. 1989), rev'd on other grounds, 899 F.2d 1124 (11th Cir. 1990). The district court in Gomez found that the federal prison in Miami had an infirmary but not a hospital, and certain drugs necessary to prolong the petitioner's life were unavailable. Id. An AIDS expert testified at a hearing that the federal prison's AIDS treatment plan was inadequate and that the prison had actually misdiagnosed the level of progression of the prisoner's AIDS. Id. The appellate court reversed the district court's holding because the grant of bail pending consideration of the habeas corpus petition gave the prisoner "more relief on a preliminary basis than he would be entitled to if he ultimately prevail[ed] on his constitutional claims." 899 F.2d at 1127. The appellate court also found that the federal facility in Springfield, Missouri, could treat the prisoner adequately and that if there was an Eighth Amendment violation the proper remedy was discontinuance of any improper practices, but not release from confinement. Id. at 1126. How a prisoner continually in court in Miami and housed in a Miami correctional facility will benefit from the proper medical procedures offered in Springfield, Missouri, was never explained. Additionally, recent attacks on the quality of medicine at the medical facility at Springfield render the Eleventh Circuit's reasoning poorly founded. See infra note 230.
398. Gomez v. United States, 725 F. Supp. 526, 527 (S.D. Fla. 1989), rev'd on other grounds, 899 F.2d 1124 (11th Cir. 1990). The district court in Gomez found that the federal prison in Miami had an infirmary but not a hospital, and certain drugs necessary to prolong the petitioner's life were unavailable. Id. An AIDS expert testified at a hearing that the federal prison's AIDS treatment plan was inadequate and that the prison had actually misdiagnosed the level of progression of the prisoner's AIDS. Id. The appellate court reversed the district court's holding because the grant of bail pending consideration of the habeas corpus petition gave the prisoner "more relief on a preliminary basis than he would be entitled to if he ultimately prevail[ed] on his constitutional claims." 899 F.2d at 1127. The appellate court also found that the federal facility in Springfield, Missouri, could treat the prisoner adequately and that if there was an Eighth Amendment violation the proper remedy was discontinuance of any improper practices, but not release from confinement. Id. at 1126. How a prisoner continually in court in Miami and housed in a Miami correctional facility will benefit from the proper medical procedures offered in Springfield, Missouri, was never explained. Additionally, recent attacks on the quality of medicine at the medical facility at Springfield render the Eleventh Circuit's reasoning poorly founded. See infra note 230.
399. Gomez v. United States, 725 F. Supp. 526, 527 (S.D. Fla. 1989), rev'd on other grounds, 899 F.2d 1124 (11th Cir. 1990). The district court in Gomez found that the federal prison in Miami had an infirmary but not a hospital, and certain drugs necessary to prolong the petitioner's life were unavailable. Id. An AIDS expert testified at a hearing that the federal prison's AIDS treatment plan was inadequate and that the prison had actually misdiagnosed the level of progression of the prisoner's AIDS. Id. The appellate court reversed the district court's holding because the grant of bail pending consideration of the habeas corpus petition gave the prisoner "more relief on a preliminary basis than he would be entitled to if he ultimately prevail[ed] on his constitutional claims." 899 F.2d at 1127. The appellate court also found that the federal facility in Springfield, Missouri, could treat the prisoner adequately and that if there was an Eighth Amendment violation the proper remedy was discontinuance of any improper practices, but not release from confinement. Id. at 1126. How a prisoner continually in court in Miami and housed in a Miami correctional facility will benefit from the proper medical procedures offered in Springfield, Missouri, was never explained. Additionally, recent attacks on the quality of medicine at the medical facility at Springfield render the Eleventh Circuit's reasoning poorly founded. See infra note 230.
400. The medical problems of the Federal Bureau of Prisons were severe enough that Congress held hearings on the matter. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. (1991) . At one point in 1990, the Springfield facility reported that 40% of its physician positions were vacant. Id. at 70 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). Prisoners reported that terminal patients were not receiving pain relievers (to the point that one patient attempted suicide) and surgical operations were being performed by doctors whose hands continually shook. Id. at 42, 48 (statement of Sidney Mayley, prison inmate, and statement of Herbert Blitzstein, prison inmate). Another witness at the hearings reported the case of a prisoner suffering from AIDS who was supposed to be transported with a high fever and diarrhea by bus from a mid-Atlantic area to the Springfield facility. The prisoner was shackled to a bus seat for hours without access to a bathroom, but was never transported to Springfield. Instead, he ended up in Danbury, Connecticut, and later had to be flown to the Springfield facility for treatment. Id. at 68-69 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). The incidence of AIDS patients dying after relatively minor surgical operations is higher in the Springfield facility than the community at large. Id. at 86. A former doctor at the Springfield facility reported that doctors would often spend only about 10 minutes doing rounds in a room with up to 20 patients. Additionally, sometimes only one doctor would be on evening call for both medical and psychiatric patients. Id. at 126-28 (statement of Dante Landucci, former Medical Officer at the U.S. Medical Center for Federal Prisoners, Springfield, Missouri). Possibly most horrifying was the testimony of a prisoner who also happened to be a doctor and was sent to the Springfield facility to be treated for Hodgkin's disease. Id. at 199 (statement of Alan Berkman, M.D.). The prisoner/doctor reported specific instances of Springfield doctors not telling patients of options for treatment of illnesses or the side-effects of particular treatments. He also reported the saga of a Spanish-speaking prisoner who came to Springfield for a bullet wound and was asked to sign a consent/release form written in English that gave permission for the removal of a lymph node. Another doctor informed a prisoner suffering from hepatitis that his liver abnormalities were caused by winter weather and depression. Id. at 201-04. The entire statement of Dr. Berkman and his travails through the Bureau of Prison's medical system is worthy of reading. Id. at 195-221. If only half of the accounts before the Subcommittee are accurate, any court that believes the Springfield facility's medical care is adequate and consequently makes sentencing decisions under this assumption should do some serious rethinking.
401. The medical problems of the Federal Bureau of Prisons were severe enough that Congress held hearings on the matter. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. (1991) . At one point in 1990, the Springfield facility reported that 40% of its physician positions were vacant. Id. at 70 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). Prisoners reported that terminal patients were not receiving pain relievers (to the point that one patient attempted suicide) and surgical operations were being performed by doctors whose hands continually shook. Id. at 42, 48 (statement of Sidney Mayley, prison inmate, and statement of Herbert Blitzstein, prison inmate). Another witness at the hearings reported the case of a prisoner suffering from AIDS who was supposed to be transported with a high fever and diarrhea by bus from a mid-Atlantic area to the Springfield facility. The prisoner was shackled to a bus seat for hours without access to a bathroom, but was never transported to Springfield. Instead, he ended up in Danbury, Connecticut, and later had to be flown to the Springfield facility for treatment. Id. at 68-69 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). The incidence of AIDS patients dying after relatively minor surgical operations is higher in the Springfield facility than the community at large. Id. at 86. A former doctor at the Springfield facility reported that doctors would often spend only about 10 minutes doing rounds in a room with up to 20 patients. Additionally, sometimes only one doctor would be on evening call for both medical and psychiatric patients. Id. at 126-28 (statement of Dante Landucci, former Medical Officer at the U.S. Medical Center for Federal Prisoners, Springfield, Missouri). Possibly most horrifying was the testimony of a prisoner who also happened to be a doctor and was sent to the Springfield facility to be treated for Hodgkin's disease. Id. at 199 (statement of Alan Berkman, M.D.). The prisoner/doctor reported specific instances of Springfield doctors not telling patients of options for treatment of illnesses or the side-effects of particular treatments. He also reported the saga of a Spanish-speaking prisoner who came to Springfield for a bullet wound and was asked to sign a consent/release form written in English that gave permission for the removal of a lymph node. Another doctor informed a prisoner suffering from hepatitis that his liver abnormalities were caused by winter weather and depression. Id. at 201-04. The entire statement of Dr. Berkman and his travails through the Bureau of Prison's medical system is worthy of reading. Id. at 195-221. If only half of the accounts before the Subcommittee are accurate, any court that believes the Springfield facility's medical care is adequate and consequently makes sentencing decisions under this assumption should do some serious rethinking.
402. The medical problems of the Federal Bureau of Prisons were severe enough that Congress held hearings on the matter. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. (1991) . At one point in 1990, the Springfield facility reported that 40% of its physician positions were vacant. Id. at 70 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). Prisoners reported that terminal patients were not receiving pain relievers (to the point that one patient attempted suicide) and surgical operations were being performed by doctors whose hands continually shook. Id. at 42, 48 (statement of Sidney Mayley, prison inmate, and statement of Herbert Blitzstein, prison inmate). Another witness at the hearings reported the case of a prisoner suffering from AIDS who was supposed to be transported with a high fever and diarrhea by bus from a mid-Atlantic area to the Springfield facility. The prisoner was shackled to a bus seat for hours without access to a bathroom, but was never transported to Springfield. Instead, he ended up in Danbury, Connecticut, and later had to be flown to the Springfield facility for treatment. Id. at 68-69 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). The incidence of AIDS patients dying after relatively minor surgical operations is higher in the Springfield facility than the community at large. Id. at 86. A former doctor at the Springfield facility reported that doctors would often spend only about 10 minutes doing rounds in a room with up to 20 patients. Additionally, sometimes only one doctor would be on evening call for both medical and psychiatric patients. Id. at 126-28 (statement of Dante Landucci, former Medical Officer at the U.S. Medical Center for Federal Prisoners, Springfield, Missouri). Possibly most horrifying was the testimony of a prisoner who also happened to be a doctor and was sent to the Springfield facility to be treated for Hodgkin's disease. Id. at 199 (statement of Alan Berkman, M.D.). The prisoner/doctor reported specific instances of Springfield doctors not telling patients of options for treatment of illnesses or the side-effects of particular treatments. He also reported the saga of a Spanish-speaking prisoner who came to Springfield for a bullet wound and was asked to sign a consent/release form written in English that gave permission for the removal of a lymph node. Another doctor informed a prisoner suffering from hepatitis that his liver abnormalities were caused by winter weather and depression. Id. at 201-04. The entire statement of Dr. Berkman and his travails through the Bureau of Prison's medical system is worthy of reading. Id. at 195-221. If only half of the accounts before the Subcommittee are accurate, any court that believes the Springfield facility's medical care is adequate and consequently makes sentencing decisions under this assumption should do some serious rethinking.
403. The medical problems of the Federal Bureau of Prisons were severe enough that Congress held hearings on the matter. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. (1991) . At one point in 1990, the Springfield facility reported that 40% of its physician positions were vacant. Id. at 70 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). Prisoners reported that terminal patients were not receiving pain relievers (to the point that one patient attempted suicide) and surgical operations were being performed by doctors whose hands continually shook. Id. at 42, 48 (statement of Sidney Mayley, prison inmate, and statement of Herbert Blitzstein, prison inmate). Another witness at the hearings reported the case of a prisoner suffering from AIDS who was supposed to be transported with a high fever and diarrhea by bus from a mid-Atlantic area to the Springfield facility. The prisoner was shackled to a bus seat for hours without access to a bathroom, but was never transported to Springfield. Instead, he ended up in Danbury, Connecticut, and later had to be flown to the Springfield facility for treatment. Id. at 68-69 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). The incidence of AIDS patients dying after relatively minor surgical operations is higher in the Springfield facility than the community at large. Id. at 86. A former doctor at the Springfield facility reported that doctors would often spend only about 10 minutes doing rounds in a room with up to 20 patients. Additionally, sometimes only one doctor would be on evening call for both medical and psychiatric patients. Id. at 126-28 (statement of Dante Landucci, former Medical Officer at the U.S. Medical Center for Federal Prisoners, Springfield, Missouri). Possibly most horrifying was the testimony of a prisoner who also happened to be a doctor and was sent to the Springfield facility to be treated for Hodgkin's disease. Id. at 199 (statement of Alan Berkman, M.D.). The prisoner/doctor reported specific instances of Springfield doctors not telling patients of options for treatment of illnesses or the side-effects of particular treatments. He also reported the saga of a Spanish-speaking prisoner who came to Springfield for a bullet wound and was asked to sign a consent/release form written in English that gave permission for the removal of a lymph node. Another doctor informed a prisoner suffering from hepatitis that his liver abnormalities were caused by winter weather and depression. Id. at 201-04. The entire statement of Dr. Berkman and his travails through the Bureau of Prison's medical system is worthy of reading. Id. at 195-221. If only half of the accounts before the Subcommittee are accurate, any court that believes the Springfield facility's medical care is adequate and consequently makes sentencing decisions under this assumption should do some serious rethinking.
404. The medical problems of the Federal Bureau of Prisons were severe enough that Congress held hearings on the matter. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. (1991) . At one point in 1990, the Springfield facility reported that 40% of its physician positions were vacant. Id. at 70 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). Prisoners reported that terminal patients were not receiving pain relievers (to the point that one patient attempted suicide) and surgical operations were being performed by doctors whose hands continually shook. Id. at 42, 48 (statement of Sidney Mayley, prison inmate, and statement of Herbert Blitzstein, prison inmate). Another witness at the hearings reported the case of a prisoner suffering from AIDS who was supposed to be transported with a high fever and diarrhea by bus from a mid-Atlantic area to the Springfield facility. The prisoner was shackled to a bus seat for hours without access to a bathroom, but was never transported to Springfield. Instead, he ended up in Danbury, Connecticut, and later had to be flown to the Springfield facility for treatment. Id. at 68-69 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). The incidence of AIDS patients dying after relatively minor surgical operations is higher in the Springfield facility than the community at large. Id. at 86. A former doctor at the Springfield facility reported that doctors would often spend only about 10 minutes doing rounds in a room with up to 20 patients. Additionally, sometimes only one doctor would be on evening call for both medical and psychiatric patients. Id. at 126-28 (statement of Dante Landucci, former Medical Officer at the U.S. Medical Center for Federal Prisoners, Springfield, Missouri). Possibly most horrifying was the testimony of a prisoner who also happened to be a doctor and was sent to the Springfield facility to be treated for Hodgkin's disease. Id. at 199 (statement of Alan Berkman, M.D.). The prisoner/doctor reported specific instances of Springfield doctors not telling patients of options for treatment of illnesses or the side-effects of particular treatments. He also reported the saga of a Spanish-speaking prisoner who came to Springfield for a bullet wound and was asked to sign a consent/release form written in English that gave permission for the removal of a lymph node. Another doctor informed a prisoner suffering from hepatitis that his liver abnormalities were caused by winter weather and depression. Id. at 201-04. The entire statement of Dr. Berkman and his travails through the Bureau of Prison's medical system is worthy of reading. Id. at 195-221. If only half of the accounts before the Subcommittee are accurate, any court that believes the Springfield facility's medical care is adequate and consequently makes sentencing decisions under this assumption should do some serious rethinking.
405. The medical problems of the Federal Bureau of Prisons were severe enough that Congress held hearings on the matter. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. (1991) . At one point in 1990, the Springfield facility reported that 40% of its physician positions were vacant. Id. at 70 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). Prisoners reported that terminal patients were not receiving pain relievers (to the point that one patient attempted suicide) and surgical operations were being performed by doctors whose hands continually shook. Id. at 42, 48 (statement of Sidney Mayley, prison inmate, and statement of Herbert Blitzstein, prison inmate). Another witness at the hearings reported the case of a prisoner suffering from AIDS who was supposed to be transported with a high fever and diarrhea by bus from a mid-Atlantic area to the Springfield facility. The prisoner was shackled to a bus seat for hours without access to a bathroom, but was never transported to Springfield. Instead, he ended up in Danbury, Connecticut, and later had to be flown to the Springfield facility for treatment. Id. at 68-69 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). The incidence of AIDS patients dying after relatively minor surgical operations is higher in the Springfield facility than the community at large. Id. at 86. A former doctor at the Springfield facility reported that doctors would often spend only about 10 minutes doing rounds in a room with up to 20 patients. Additionally, sometimes only one doctor would be on evening call for both medical and psychiatric patients. Id. at 126-28 (statement of Dante Landucci, former Medical Officer at the U.S. Medical Center for Federal Prisoners, Springfield, Missouri). Possibly most horrifying was the testimony of a prisoner who also happened to be a doctor and was sent to the Springfield facility to be treated for Hodgkin's disease. Id. at 199 (statement of Alan Berkman, M.D.). The prisoner/doctor reported specific instances of Springfield doctors not telling patients of options for treatment of illnesses or the side-effects of particular treatments. He also reported the saga of a Spanish-speaking prisoner who came to Springfield for a bullet wound and was asked to sign a consent/release form written in English that gave permission for the removal of a lymph node. Another doctor informed a prisoner suffering from hepatitis that his liver abnormalities were caused by winter weather and depression. Id. at 201-04. The entire statement of Dr. Berkman and his travails through the Bureau of Prison's medical system is worthy of reading. Id. at 195-221. If only half of the accounts before the Subcommittee are accurate, any court that believes the Springfield facility's medical care is adequate and consequently makes sentencing decisions under this assumption should do some serious rethinking.
406. The medical problems of the Federal Bureau of Prisons were severe enough that Congress held hearings on the matter. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. (1991) . At one point in 1990, the Springfield facility reported that 40% of its physician positions were vacant. Id. at 70 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). Prisoners reported that terminal patients were not receiving pain relievers (to the point that one patient attempted suicide) and surgical operations were being performed by doctors whose hands continually shook. Id. at 42, 48 (statement of Sidney Mayley, prison inmate, and statement of Herbert Blitzstein, prison inmate). Another witness at the hearings reported the case of a prisoner suffering from AIDS who was supposed to be transported with a high fever and diarrhea by bus from a mid-Atlantic area to the Springfield facility. The prisoner was shackled to a bus seat for hours without access to a bathroom, but was never transported to Springfield. Instead, he ended up in Danbury, Connecticut, and later had to be flown to the Springfield facility for treatment. Id. at 68-69 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). The incidence of AIDS patients dying after relatively minor surgical operations is higher in the Springfield facility than the community at large. Id. at 86. A former doctor at the Springfield facility reported that doctors would often spend only about 10 minutes doing rounds in a room with up to 20 patients. Additionally, sometimes only one doctor would be on evening call for both medical and psychiatric patients. Id. at 126-28 (statement of Dante Landucci, former Medical Officer at the U.S. Medical Center for Federal Prisoners, Springfield, Missouri). Possibly most horrifying was the testimony of a prisoner who also happened to be a doctor and was sent to the Springfield facility to be treated for Hodgkin's disease. Id. at 199 (statement of Alan Berkman, M.D.). The prisoner/doctor reported specific instances of Springfield doctors not telling patients of options for treatment of illnesses or the side-effects of particular treatments. He also reported the saga of a Spanish-speaking prisoner who came to Springfield for a bullet wound and was asked to sign a consent/release form written in English that gave permission for the removal of a lymph node. Another doctor informed a prisoner suffering from hepatitis that his liver abnormalities were caused by winter weather and depression. Id. at 201-04. The entire statement of Dr. Berkman and his travails through the Bureau of Prison's medical system is worthy of reading. Id. at 195-221. If only half of the accounts before the Subcommittee are accurate, any court that believes the Springfield facility's medical care is adequate and consequently makes sentencing decisions under this assumption should do some serious rethinking.
407. The medical problems of the Federal Bureau of Prisons were severe enough that Congress held hearings on the matter. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. (1991) . At one point in 1990, the Springfield facility reported that 40% of its physician positions were vacant. Id. at 70 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). Prisoners reported that terminal patients were not receiving pain relievers (to the point that one patient attempted suicide) and surgical operations were being performed by doctors whose hands continually shook. Id. at 42, 48 (statement of Sidney Mayley, prison inmate, and statement of Herbert Blitzstein, prison inmate). Another witness at the hearings reported the case of a prisoner suffering from AIDS who was supposed to be transported with a high fever and diarrhea by bus from a mid-Atlantic area to the Springfield facility. The prisoner was shackled to a bus seat for hours without access to a bathroom, but was never transported to Springfield. Instead, he ended up in Danbury, Connecticut, and later had to be flown to the Springfield facility for treatment. Id. at 68-69 (statement of Elizabeth Alexander, Associate Director for Litigation, National Prison Project, ACLU). The incidence of AIDS patients dying after relatively minor surgical operations is higher in the Springfield facility than the community at large. Id. at 86. A former doctor at the Springfield facility reported that doctors would often spend only about 10 minutes doing rounds in a room with up to 20 patients. Additionally, sometimes only one doctor would be on evening call for both medical and psychiatric patients. Id. at 126-28 (statement of Dante Landucci, former Medical Officer at the U.S. Medical Center for Federal Prisoners, Springfield, Missouri). Possibly most horrifying was the testimony of a prisoner who also happened to be a doctor and was sent to the Springfield facility to be treated for Hodgkin's disease. Id. at 199 (statement of Alan Berkman, M.D.). The prisoner/doctor reported specific instances of Springfield doctors not telling patients of options for treatment of illnesses or the side-effects of particular treatments. He also reported the saga of a Spanish-speaking prisoner who came to Springfield for a bullet wound and was asked to sign a consent/release form written in English that gave permission for the removal of a lymph node. Another doctor informed a prisoner suffering from hepatitis that his liver abnormalities were caused by winter weather and depression. Id. at 201-04. The entire statement of Dr. Berkman and his travails through the Bureau of Prison's medical system is worthy of reading. Id. at 195-221. If only half of the accounts before the Subcommittee are accurate, any court that believes the Springfield facility's medical care is adequate and consequently makes sentencing decisions under this assumption should do some serious rethinking.
408. AZT "has been shown to increase survival time and decrease the frequency and severity of opportunistic infections." AMERICAN MEDICAL ASSOCIATION, HIV: EARLY INTERVENTION 12 (1994). Studies have found that treatment with AZT on asymptomatic patients delays deterioration of the immune system and the clinical progression to AIDS. Id.
409. AZT "has been shown to increase survival time and decrease the frequency and severity of opportunistic infections." AMERICAN MEDICAL ASSOCIATION, HIV: EARLY INTERVENTION 12 (1994). Studies have found that treatment with AZT on asymptomatic patients delays deterioration of the immune system and the clinical progression to AIDS. Id.
410. See Nolley v. County of Erie, 776 F. Supp. 715, 740 (W.D.N.Y. 1991) (noting that prisoner's AZT "was either not delivered or was delivered late," on several occasions); Hawley v. Evans, 716 F. Supp. 601 (N.D. Ga. 1989) (upholding prison policy which denied AZT to prisoners unless their CD4 cell count was less than 200).
411. See Nolley v. County of Erie, 776 F. Supp. 715, 740 (W.D.N.Y. 1991) (noting that prisoner's AZT "was either not delivered or was delivered late," on several occasions); Hawley v. Evans, 716 F. Supp. 601 (N.D. Ga. 1989) (upholding prison policy which denied AZT to prisoners unless their CD4 cell count was less than 200).
412. One researcher found that some HIV treatment drugs are available in fewer than 50% of state and federal prisons while other drugs may be available in up to 84% of the state and federal prisons. HAMMETT ET AL., supra note 228, at 70 (Table 21).
413. The side effects of the HIV drug ddl include pancreatitis and peripheral neuropathy, which are fatal in 6% of cases. JOHN G. BARTLETT, THE JOHNS HOPKINS HOSPITAL GUIDE TO MEDICAL CARE OF PATIENTS WITH HIV INFECTION 46 (4th ed. 1994).
414. Only 18% of state and federal prisons offer experimental drugs and only 12% allow inmates access to clinical trials of drugs. HAMMETT ET AL., supra note 228, at 70-71 (noting that the Federal Bureau of Prisons is among those allowing access to clinical trials in the community). See also United States v. Borkowski, Nos. 95-10480, 95-1-481, 1996 WL 534043 (9th Cir. Sept. 19, 1996) (unpublished disposition) (finding the defendant's argument that he had become intolerant to the FDA-approved drug treatment available through the Bureau of Prisons and required experimental drugs and a downward departure was not proved during sentencing and thus unpersuasive); State v. Gamberella, 633 So. 2d 595, 606-07 (La. Ct. App. 1993) (upholding prison sentence for HIV-infected defendant although it meant defendant would have to discontinue participation in a program at the Tulane-LSU AIDS Clinical Trials Unit in which the defendant received certain medications); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 192-93 (Albert R. Jonsen & Jeff Stryker eds., 1993) (noting regulations which make it harder to conduct clinical research with prisoners and finding prisoners should be permitted to volunteer for clinical trials).
415. Only 18% of state and federal prisons offer experimental drugs and only 12% allow inmates access to clinical trials of drugs. HAMMETT ET AL., supra note 228, at 70-71 (noting that the Federal Bureau of Prisons is among those allowing access to clinical trials in the community). See also United States v. Borkowski, Nos. 95-10480, 95-1-481, 1996 WL 534043 (9th Cir. Sept. 19, 1996) (unpublished disposition) (finding the defendant's argument that he had become intolerant to the FDA-approved drug treatment available through the Bureau of Prisons and required experimental drugs and a downward departure was not proved during sentencing and thus unpersuasive); State v. Gamberella, 633 So. 2d 595, 606-07 (La. Ct. App. 1993) (upholding prison sentence for HIV-infected defendant although it meant defendant would have to discontinue participation in a program at the Tulane-LSU AIDS Clinical Trials Unit in which the defendant received certain medications); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 192-93 (Albert R. Jonsen & Jeff Stryker eds., 1993) (noting regulations which make it harder to conduct clinical research with prisoners and finding prisoners should be permitted to volunteer for clinical trials).
416. Only 18% of state and federal prisons offer experimental drugs and only 12% allow inmates access to clinical trials of drugs. HAMMETT ET AL., supra note 228, at 70-71 (noting that the Federal Bureau of Prisons is among those allowing access to clinical trials in the community). See also United States v. Borkowski, Nos. 95-10480, 95-1-481, 1996 WL 534043 (9th Cir. Sept. 19, 1996) (unpublished disposition) (finding the defendant's argument that he had become intolerant to the FDA-approved drug treatment available through the Bureau of Prisons and required experimental drugs and a downward departure was not proved during sentencing and thus unpersuasive); State v. Gamberella, 633 So. 2d 595, 606-07 (La. Ct. App. 1993) (upholding prison sentence for HIV-infected defendant although it meant defendant would have to discontinue participation in a program at the Tulane-LSU AIDS Clinical Trials Unit in which the defendant received certain medications); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 192-93 (Albert R. Jonsen & Jeff Stryker eds., 1993) (noting regulations which make it harder to conduct clinical research with prisoners and finding prisoners should be permitted to volunteer for clinical trials).
417. Only 18% of state and federal prisons offer experimental drugs and only 12% allow inmates access to clinical trials of drugs. HAMMETT ET AL., supra note 228, at 70-71 (noting that the Federal Bureau of Prisons is among those allowing access to clinical trials in the community). See also United States v. Borkowski, Nos. 95-10480, 95-1-481, 1996 WL 534043 (9th Cir. Sept. 19, 1996) (unpublished disposition) (finding the defendant's argument that he had become intolerant to the FDA-approved drug treatment available through the Bureau of Prisons and required experimental drugs and a downward departure was not proved during sentencing and thus unpersuasive); State v. Gamberella, 633 So. 2d 595, 606-07 (La. Ct. App. 1993) (upholding prison sentence for HIV-infected defendant although it meant defendant would have to discontinue participation in a program at the Tulane-LSU AIDS Clinical Trials Unit in which the defendant received certain medications); NATIONAL RESEARCH COUNCIL, THE SOCIAL IMPACT OF AIDS IN THE UNITED STATES 192-93 (Albert R. Jonsen & Jeff Stryker eds., 1993) (noting regulations which make it harder to conduct clinical research with prisoners and finding prisoners should be permitted to volunteer for clinical trials).
418. Estelle v. Gamble, 429 U.S. 97, 106 (1976). For an overview of some of the cases challenging the level of medical care for HIV-infected inmates, see Burris, supra note 68, at 307-14, and Knepper, supra note 4, at 78.
419. Estelle v. Gamble, 429 U.S. 97, 106 (1976). For an overview of some of the cases challenging the level of medical care for HIV-infected inmates, see Burris, supra note 68, at 307-14, and Knepper, supra note 4, at 78.
420. Estelle v. Gamble, 429 U.S. 97, 106 (1976). For an overview of some of the cases challenging the level of medical care for HIV-infected inmates, see Burris, supra note 68, at 307-14, and Knepper, supra note 4, at 78.
421. Perhaps an increase in downward departures would highlight the problem of prison medical facilities and supply the impetus the Bureau of Prisons needs to provide adequate medical care for HIV-infected defendants.
422. U.S. SENTENCING GUIDELINES MANUAL § 5H1.4 (policy statement); see, e.g., United States v. Maltese, No. CR 87-19, 1993 WL 222350, at *10 (N.D. Ill. June 22, 1993) (granting a motion for a downward departure given the defendant's poor prognosis and the costs of treating and housing the defendant). In a more recent case, a judge sentenced an HIV-infected defendant to time served and noted the high cost to the federal government should the defendant remain in prison and require medical treatment. Steve Bates, Judge Frees Check Forger Who Has AIDS, WASH. POST, Dec. 5, 1995, at B3.
423. U.S. SENTENCING GUIDELINES MANUAL § 5H1.4 (policy statement); see, e.g., United States v. Maltese, No. CR 87-19, 1993 WL 222350, at *10 (N.D. Ill. June 22, 1993) (granting a motion for a downward departure given the defendant's poor prognosis and the costs of treating and housing the defendant). In a more recent case, a judge sentenced an HIV-infected defendant to time served and noted the high cost to the federal government should the defendant remain in prison and require medical treatment. Steve Bates, Judge Frees Check Forger Who Has AIDS, WASH. POST, Dec. 5, 1995, at B3.
424. U.S. SENTENCING GUIDELINES MANUAL § 5H1.4 (policy statement); see, e.g., United States v. Maltese, No. CR 87-19, 1993 WL 222350, at *10 (N.D. Ill. June 22, 1993) (granting a motion for a downward departure given the defendant's poor prognosis and the costs of treating and housing the defendant). In a more recent case, a judge sentenced an HIV-infected defendant to time served and noted the high cost to the federal government should the defendant remain in prison and require medical treatment. Steve Bates, Judge Frees Check Forger Who Has AIDS, WASH. POST, Dec. 5, 1995, at B3.
425. THEODORE M. HAMMETT, U.S. DEP'T OF JUSTICE, AIDS IN CORRECTIONAL FACILITIES: ISSUES AND OPTIONS 81 (3d ed. 1988).
426. Colangelo & Hogan, supra note 67, at 468, 476 n.42.
427. See supra notes 66-70 and accompanying text. See also supra note 224.
428. See supra notes 66-70 and accompanying text. See also supra note 224.
429. HAMMETT, supra note 239, at 82.
430. Id.
431. United States v. Rabins, 63 F.3d 721, 744 (8th Cir. 1995) (Wilson, J., dissenting), cert. denied, 116 S. Ct. 1031 (1996).
432. HAMMETT, supra note 239, at 82.
433. See, e.g., United States v. Vaughan, No. 92 CR 575-04, 1993 WL 119704, at *1 (S.D.N.Y. Apr. 15, 1993) (sentencing opinion). The Vaughan court noted that the defendant was suffering from a fatal form of lymphoma cancer but was still expected to live for eight years. The court determined that this extraordinary physical impairment along with the facts that the defendant was a first-time offender, was not likely to be involved in further crime, and was the sole care provider for his ill wife, warranted a departure from a minimum prison term of 87 months to a 12-month incarceration.
434. For a discussion of segregation cases, see supra note 7.
435. HAMMETT ET AL., supra note 228, at 72.
436. See Cordero v. Coughlin, 607 F. Supp. 9, 10 (S.D.N.Y. 1984). The Coughlin court found the segregation of HIV-infected prisoners constitutional and noted that the HIV condition produced fear and ostracism from fellow inmates. This ostracism formed the basis for segregation because the prison could claim segregation was necessary for security and health care reasons. Id.
437. See Cordero v. Coughlin, 607 F. Supp. 9, 10 (S.D.N.Y. 1984). The Coughlin court found the segregation of HIV-infected prisoners constitutional and noted that the HIV condition produced fear and ostracism from fellow inmates. This ostracism formed the basis for segregation because the prison could claim segregation was necessary for security and health care reasons. Id.
438. See Farmer v. Moritsugu, 742 F. Supp. 525 (W.D. Wis. 1990). The Farmer court upheld a policy that HIV-infected inmates could not work in the food service or hospital sections of the prison. Although the court recognized there were no known cases of the transfer of HIV in a casual setting, it found that "[t]here remains a perception among the uninformed and unconvinced that the virus is transmitted by ingesting or administering a product or substance that might have been handled by a person with HIV." Id. at 527.
439. See Farmer v. Moritsugu, 742 F. Supp. 525 (W.D. Wis. 1990). The Farmer court upheld a policy that HIV-infected inmates could not work in the food service or hospital sections of the prison. Although the court recognized there were no known cases of the transfer of HIV in a casual setting, it found that "[t]here remains a perception among the uninformed and unconvinced that the virus is transmitted by ingesting or administering a product or substance that might have been handled by a person with HIV." Id. at 527.
440. See supra note 224 for a discussion of prison conditions; see also Nolley v. County of Erie, 776 F. Supp. 715 (W.D.N.Y. 1991). In Nolley, the HIV-infected prisoner was housed in a unit with five cells, three of which were occupied by inmates who were suicidal or had severe psychiatric problems. Id. at 723. The prisoner was continually housed with inmates convicted of murder who talked frequently and in gruesome detail about the killings. Id. at 723-24.
441. See supra note 224 for a discussion of prison conditions; see also Nolley v. County of Erie, 776 F. Supp. 715 (W.D.N.Y. 1991). In Nolley, the HIV-infected prisoner was housed in a unit with five cells, three of which were occupied by inmates who were suicidal or had severe psychiatric problems. Id. at 723. The prisoner was continually housed with inmates convicted of murder who talked frequently and in gruesome detail about the killings. Id. at 723-24.
442. See supra note 224 for a discussion of prison conditions; see also Nolley v. County of Erie, 776 F. Supp. 715 (W.D.N.Y. 1991). In Nolley, the HIV-infected prisoner was housed in a unit with five cells, three of which were occupied by inmates who were suicidal or had severe psychiatric problems. Id. at 723. The prisoner was continually housed with inmates convicted of murder who talked frequently and in gruesome detail about the killings. Id. at 723-24.
443. See supra note 224 for a discussion of prison conditions; see also Nolley v. County of Erie, 776 F. Supp. 715 (W.D.N.Y. 1991). In Nolley, the HIV-infected prisoner was housed in a unit with five cells, three of which were occupied by inmates who were suicidal or had severe psychiatric problems. Id. at 723. The prisoner was continually housed with inmates convicted of murder who talked frequently and in gruesome detail about the killings. Id. at 723-24.
444. For some HIV-infected prisoners in Texas jails, "[t]rips to the infectious-disease clinic . . . in Galveston are feats of endurance, starting with breakfast at 2 a.m. and ending about 20 hours later. A bus goes unit-to-unit, picking up inmates who ride handcuffed in pairs. By the time every inmate has seen a doctor, it's late in the day." Leigh Hopper, A Killer in Texas Prisons; AIDS Takes Toll on Inmates, Costs, AUSTIN AM.-STATESMAN, Oct. 11, 1995, at A1.
445. At one point in 1991, six of seven psychiatric positions were vacant in the Bureau of Prison's flagship medical facility in Springfield, Missouri. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. 29 (1991) (statement of J. Michael Quinlan, Director, Federal Bureau of Prisons). In one case, an AIDS patient's request for psychological counseling was "met with referral to the prison's drug [treatment] counselor." Gomez v. United States, 725 F. Supp. 526, 527 (S.D. Fla. 1989), rev'd on other grounds, 899 F.2d 1124 (11th Cir. 1990). The lack of proper psychological counseling is problematic enough for the patient first learning to live with HIV and the realization he has an incurable disease, but could be devastating for those patients starting to suffer from AIDS dementia. See supra notes 53-57 and accompanying text.
446. At one point in 1991, six of seven psychiatric positions were vacant in the Bureau of Prison's flagship medical facility in Springfield, Missouri. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. 29 (1991) (statement of J. Michael Quinlan, Director, Federal Bureau of Prisons). In one case, an AIDS patient's request for psychological counseling was "met with referral to the prison's drug [treatment] counselor." Gomez v. United States, 725 F. Supp. 526, 527 (S.D. Fla. 1989), rev'd on other grounds, 899 F.2d 1124 (11th Cir. 1990). The lack of proper psychological counseling is problematic enough for the patient first learning to live with HIV and the realization he has an incurable disease, but could be devastating for those patients starting to suffer from AIDS dementia. See supra notes 53-57 and accompanying text.
447. At one point in 1991, six of seven psychiatric positions were vacant in the Bureau of Prison's flagship medical facility in Springfield, Missouri. Medical Care for the Prison Population: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102d Cong., 1st Sess. 29 (1991) (statement of J. Michael Quinlan, Director, Federal Bureau of Prisons). In one case, an AIDS patient's request for psychological counseling was "met with referral to the prison's drug [treatment] counselor." Gomez v. United States, 725 F. Supp. 526, 527 (S.D. Fla. 1989), rev'd on other grounds, 899 F.2d 1124 (11th Cir. 1990). The lack of proper psychological counseling is problematic enough for the patient first learning to live with HIV and the realization he has an incurable disease, but could be devastating for those patients starting to suffer from AIDS dementia. See supra notes 53-57 and accompanying text.