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Regina Walters-EL knows the value of keeping medical secrets. After she was screened for HIV while incarcerated in 1985, she made the mistake of telling a cellmate that she’d been tested. Within days, the news was out that she had the disease. Some inmates harassed and threatened her. Most others refused to take showers anywhere near her. No one wanted her to eat from the same institutional metal trays they did.
More than any physical threat, Walters-EL remembers constant emotional trauma. She says she grew angry and retreated into her cell, rarely leaving it for the next 90 days. Whenever she went to the infirmary, rumors would spread throughout Lortonher limbs had to be cut off, or she was dead.
The intensity of this segregation got to be too much. Sometimes she would cry herself into calm, but at other times the angry slurs caused her to go into grand-mal epileptic seizures, Walters-EL says. In 1994, when a nurse revealed her status to about 20 inmates, she went ballistic. A few years later, an inmate yelled out that Walters-EL should stay in her cell permanently since she was going to die anyway. This time, she trashed her room and broke a window.
When Walters-EL violated parole and landed back in the D.C. jail in 1996, she was determined not to repeat the experience of being outcast over something that’s supposed to be confidential. With her chronic heroin habit, Walters-EL was a jailhouse veteran. In and out of the prison systemmostly insince the mid-’70s, she knew the prison rumor mill was fierce and picked up on the subtlest behavior. A tall, thick-limbed woman, she took the time to make herself presentable. She felt strong. She thought she looked good.
Corrections officers saw a different woman. Whenever they attended to her, the officers put on rubber gloves. It was a gesture that every inmate picked up on. For Walters-EL, the gloves meant her secret was an open one: She was HIV-positive.
“[I felt] like a germ,” Walters-EL remembers, on a recent jaunt outside her Capitol Hill halfway house, Fairview, where she is finishing up her sentence. “Ignorance played a role. There was nothing open on me.”
Walters-EL says there’s no confidentiality among inmates and the prison staff, regardless of where she goes. When she did a short stint at an Alexandria correctional facility, Walters-EL says that prison officials made her take separate showers and scrub down the stall with chlorine and bleach after she was finished. At the halfway house, she notes, the medication log book sits on a counter for anybody to see.
“There’s no [confidentiality],” she ruminates. “I can’t imagine how that [would feel]. You always be put on display. Everybody always knew. Every time you get in here, they say, ‘You know she has AIDS. You know she’s sick.’”
Walters-EL has not gotten full-blown AIDS and says she is stronger than ever. She looks robust, with hands clasped against a healthy gut and nails polished a sharp shade of red. With less than a week to go on her sentence and, she says, having been sober for the past four years, Walters-EL, 46, is ready to move on. But she says she still can’t shake the confusion and hurt from the exposure of her HIV status.
Walters-EL says that she has hired a lawyer and hopes to sue the D.C. Department of Corrections for violating her privacy and confidentiality. She decided 18 months ago that the emotional stress of these incidents was enough. “I want my name back,” Walters-EL insists.
Yet even if all of her charges were bulletproof and she had Johnnie Cochran for a lawyer, she would likely be wasting her time, money, and breath. For that, she can thank folks like Bob Dole and Phil Gramm. In 1996, the two then-presidential candidates shepherded into law the Prison Litigation Reform Act (PLRA), which they said would rid the courts of frivolous cellblock lawsuits. The PLRA limits the amount of money lawyers receive, makes inmates pay a filing fee, andmost important for Walters-ELbars lawsuits over emotional or mental damages without evidence of physical injury.
According to Jonathan Smith, the executive director of the Baltimore-based Public Justice Center, legitimate cases are now being dismissedincluding privacy cases from HIV-positive inmates. They don’t even bother to take up those suits at the D.C. Prisoners’ Legal Services Project. The D.C. Corporation Counsel, the city’s legal arm, doesn’t take them seriously. And the courts throw them out.
“There’s a whole category of cases where tremendous injustices are going to occur,” Smith explains. “The physical injury is only part of the picture. On top of it, there’s this sense by corrections officials that anything goes now. That the courts are not going to be looking over their shoulders.”
Michael Davis sued D.C. over an HIV confidentiality violation in 1997. According to court records, Davis claimed that in November 1996, a corrections officer saw his sealed medical file and leaked his status to others. Davis claimed this action opened him up to emotional and mental distress. He couldn’t eat. He couldn’t sleep. He eventually had to see a Lorton psychiatrist.
Soon after Davis filed his lawsuit, in mid-
January of 1997, a judge dismissed his complaint. Davis wasn’t deterred; he appealed the same day. According to letters to the clerk of the court, he was moved to a prison in Youngstown, Ohio, run by the Corrections Corporation of America, where he had no access to law books or his legal papers. Davis claims that he was placed in the facility’s “segregation unit” that July, and he alleges that the placement was intended to prevent him from filing papers on time.
Still, Davis pressed forward with his suit. More than a year later, he finally got his day in court. Arguing before the U.S. Court of Appeals for the D.C. Circuit, the inmate and his lawyers laid out their casethe stress, the distress, and the violations of privacy. It might as well have been a show trial; the outcome was already determined.
The prison officials and the D.C. Corporation Counsel never disputed Davis’ version of events. “Certainly what happened there was against their policy,” says Walter Smith, the Corporation Counsel’s spokesperson. “We are agreeing that his status should not have been disclosed….Everyone assumed for the sake of the case that it was improper.”
Unfortunately for Davis, who could not be reached for comment, he never proved physical injury, as the PLRA requires. In late October 1998, the Court of Appeals used this lack of injury to rule against Davis under the PLRA. The other facts of Davis’ claim were irrelevant.
“You have to remember that was not the issue in the case,” Walter Smith explains. “The real issue was not whether or not this should have been disclosed, but whether he should have received damages.”
In 1992before the law limiting prisoner lawsuits took effectJonathan Smith, the then-executive director of the D.C. Prisoners Legal Services Project, says he brought a similar lawsuit against the D.C. Department of Corrections. Seven HIV-positive prisoners sued over breaches in confidentiality. Their complaints ranged from correctional officers’ improperly reading inmates’ medical files out loud and within earshot of other inmates to threats by officers. An officer allegedly called one of the prisoners a “smart-mouthed faggot” and cuffed him to a railing. A few days later, the same officer called the same inmate an “AIDS-carrying freak”; prisoners began shunning him and threatened to kill him if he got near them.
The Department of Corrections feared the case enough to settle for thousands of dollars. According to Smith, each inmate won between $3,000 and $7,000. The agency also agreed to seal all personal medical files. The PLRA, Smith says, now makes cases like his class-action lawsuit losers.
Marie-Ann Sennett, the litigation director for the Legal Services Project, says she receives roughly one complaint a month from an HIV-positive inmate. Sennett says there’s nothing she can do for such prisoners. “We haven’t filed any lawsuits on that,” Sennett admits. “With the PLRA decision, it’s ‘What lawsuit is left?’ We’ve been trying to find administrative ways of dealing with it….There isn’t anything we can advise people to do.”
It’s no small matter. According to Department of Justice figures, in 1995the most recent year for which statistics are available2.3 percent of federal inmates were HIV-positive. In District-run correctional facilities, the picture is even darker: According to Michael Du Bose, a public health educator with the Department of Corrections, at least 5 percent of the roughly 7,000 inmates are HIV-positive or have AIDS. Some local HIV activists claim the figures may be higher.
Without the threat of litigation, inmate confidentiality is routinely breached. And it could be worse: Prison systems in Alabama, Mississippi, and South Carolina segregate HIV-positive prisoners. Jackie Walker, the AIDS information coordinator at the ACLU National Prison Project, says that beyond dealing with the possibility of dying alone in prison, HIV-positive inmates have to live daily with threats from those around them. “There’s harassment, name callingpeople have been burned out of their cells,” Walker explains. “There’s verbal harassment and actual physical harassment leading to death.”
Du Bose admits breaches occur. “In any correctional environment, confidentiality is a major issue,” he explains. “We strive to maintain the patients’ medical confidentiality on issues relating to their health care….There’s no way I can say with 100 percent certainty that [breaches] haven’t occurred. I would be erroneous to say that has never occurred.”
Du Bose suggests that it is sometimes the inmates themselves who reveal their own HIV status. “Inmates have gotten smoked out or they’ve gotten beat up because they’ve disclosed [their status]. That’s beyond the control of the administration. If an inmate chooses to tell somebody, we don’t have control over that.”
Du Bose says D.C. plans to implement a new education program for correctional staff and prisoners in April, aimed at cutting down HIV harassment. “You can never provide too much information,” he says.
Sensitivity training would certainly have helped Cochise Robertson-EL (no relation). When he found out he had AIDS, it almost drove him to suicide. “I’m in the bed,” he remembers. “I’m screaming from within. I couldn’t verbalize it. I knew no one I could verbalize it with….I had a whole head full of death and dying. I could see no redemption.”
A resident of Lorton’s maximum-security prison in the early ’90s for distribution of heroin, Robertson-EL says his new secret was exposed by a guard who read his medical file and inmates who spied his pills during sick call. They found out he was taking AZT.
Inmates disinfected his shower stall. When he got extra rations to keep his weight up, the other inmates would steal his food. Before he had a chance to use the telephone, the other inmates would dismantle itpresumably preventing the phone from being used to transmit AIDS. Sometimes, they would disinfect the telephone.
Inmates had verbal confrontations with him at the treatment facility. “AIDS-carrying motherfucker!” they screamed. All in all, they treated Robertson-EL the way they treated child molestersas a pariah. Racked with guilt and low self-esteem, Robertson-EL dumped all his pills on his bed two days before he was paroled, he says. He was ready to take them all. An officer caught him and convinced him not to take his own life.
Today, Robertson-EL is using his experience to lead Blind Faith, an outreach group of former inmates who are HIV-positive or have AIDS. They meet every Wednesday night at the HIV Community Coalition office. With the PLRA in effect and the Department of Corrections still business as usual, he thought former prisoners like himself could use some solidarity. Discussions about confidentiality, even outside, still preoccupy the meetings.
“The stress factor of being in jail with any terminal illness is unbelievable,” Robertson-EL explains. “The confidentiality is invaluable. Nothing succeeds confidentiality….That’s the bottom line: It does keep you safe.”CP