Persons With AIDS in prison: A critical and phenomenological approach to suffering

Conclusions

There are many structural implications which help illuminate the bureaucratic and coercive nature of the contemporary criminal justice system, especially as it deals with IV drug users who may also be infected with the AIDS virus. The link between criminal justice and achieving social order is clear, and the current “war on drugs” is reminiscent of earlier criticisms of social control. Foucault, for instance, argued that formal control of the “mad” can be interpreted as a governmental response to the growing demands for order, responsibility and restraint.⁵¹ The nation's ongoing law enforcement campaign, as is the case with other moral and political crusades, focuses primarily on those who are unpopular and unable adequately to defend themselves, especially the poverty-stricken, urban IV drug users. The “war on drugs” further represents an ideological campaign that utilizes law enforcement to attack many forms of social conduct which are perhaps better addressed as health issues (i.e., substance abuse and AIDS). Considering this, the criminal justice system functions, therefore as the main vehicle by which the demands for order, responsibility and restraint are reinforced.

The emergence of AIDS in prison, which has been complicated by inadequate health care, demonstrates an ironic twist in the history of corrections and the demand for social order. In his analysis of the development of prisons and the early notions of rehabilitation, Rothman pointed out that traditional assumptions about criminality and punishment were couched in strict medical reasoning. That is, human improvement was possible if a criminal's unfortunate upbringing could be overcome in an antiseptic and healthy setting; prisons soon were constructed to serve as these “healthy” environments.⁵² However, considering the numerous problems in delivering adequate health care to PWAs, the so-called liberal and humane approach to incarceration is undermined by a bureaucratized prison system which has difficulty attending to inmates with special needs.

The prison system, as a formal organization, is guided by a rational, and seemingly detached, plan to deal with the huge number of inmates. Yet, in processing thousands of inmates through state and federal prisons, the ideals and principles of corrections are overshadowed by the organizational needs of the system. These bureaucratic priorities, which emphasize processing and warehousing inmates instead of attending to those with special needs, have created several unintentional consequences. Because over-bureaucratized prison systems are generally self-defeating (in terms of the failure to apply “corrective” principles), prisons have become unreasonably painful for most inmates, especially those suffering from AIDS.

My purpose in this essay was to explore the form of suffering endured by PWAs in prison by way of phenomenological assumptions and critical insights. However, at this point it is important to broaden the relevance of this discussion to include all inmates inflicted with terminal disease. The central idea of this analysis was based on the perspective that time is fundamentally altered for prisoners because their incarceration is marked by a temporary state of “futurelessness.” Prison life, in general, is often meaningless because the inmates experience emotional strains which emerge from the perception of not having a future. Moreover, the form of suffering sustained by PWAs and other inmates with terminal diseases is clearly more pronounced because they are forced to face a permanent state of “futurelessness.” The drastic shift in the temporal field also contributes to a heightened sense of self-consciousness insofar as they become alarmingly aware of their physical deterioration. In sum, their suffering involves a complex arrangement of emotional, psychosocial and physical problems which are exacerbated by inadequate health care in prisons.

As mentioned, compassionate release should be considered for PWAs, but this type of parole should also be extended to other inmates with terminal diseases. Such a proposal, however, requires a more detailed discussion of current social functions of prisons. That is, should prisons exist as institutions in which everyone convicted of a felony is incarcerated? Or should prisons be reserved only for the violent and dangerous? It is my opinion that prisons should serve the function of protecting society, and that the other strategies of retribution and restitution be made more available as alternatives to incarceration.

By way of decades of research, criminologists have identified many sources and forms of criminality, as well as the various degrees of severity. This accumulation of knowledge, now often regarded as common sense by criminal justice practitioners, does, in fact, influence decisions regarding prosecution and sentencing. Judges, often informally, take into consideration the severity of the crime (as well as other circumstances) in sentencing the offender to a particular length of time (whether the sentence involves incarceration, probation or both). These same circumstances, therefore, should be formalized to determine who is actually to be punished by incarceration, and who should be diverted from prison to such alternatives as house incarceration, treatment facilities, community service, etc.. Again, taking into consideration the many forms of criminality (and its range of severity) as they relate to sentencing, it is important to extend this concern to inmates suffering from terminal illnesses. Furthermore, it should be noted that compassionate release can be established. For example, dying inmates who do not pose a serious or imminent threat to society should be immediately eligible for either home incarceration or a suitable medical setting (depending on their current medical condition and level of recommended security).

These alternatives also must be examined in light of other pressing issues. Given the state of inadequate health care in prisons, it is unlikely that swift reforms will take place in time to properly treat terminally ill inmates currently incarcerated. To compound matters, it should be mentioned that one of the primary sources for inadequate health care is the prison's limited budget, and it is further unlikely that budgetary reforms for prisons will take place any time soon. Therefore, not only is it humane to release nonviolent and low-risk inmates suffering from terminal diseases, but it may also be cost-effective (due to soaring health care costs); especially considering the numerous class-action suits challenging the existing prison conditions involving health care.

To conclude, criminal justice agencies are currently at a juncture in which decision-makers need to include additional characteristics and circumstances (i.e., medical conditions of offenders and lack of adequate health care in prisons) in determining how offenders are to be punished. Criminal justice agencies also need to address the realities of punishment-for instance, whether society is best served by having terminally ill offenders incarcerated. Is it, perhaps, more practical and humane to utilize existing alternatives to incarceration? I suggest that difficult sentencing and parole decisions regarding the terminally ill should now benefit from social science models which further conceptualize, among other things, those who are both marginal and dying.