Illness = Increased Incarceration
Imagine putting someone in prison for a non-violent felony conviction for between 15 years and the rest of their life --- instead of, say, for between 3 1/2 and 7 years --- merely because the person had HIV/AIDS. Essentially, envision a judge ordering someone to die in prison, instead of possibly in their own home with their family or at a hospital. Only some rogue judge in some right-wing county would do such a thing, but not a judge in liberal New York City, right? Wrong.
Bronx Defenders recently represented someone convicted after a jury trial of burglary in the third degree, a non-violent felony offense. Since the client was a predicate felon --- he had at least one prior felony conviction within the past ten years --- he faced a maximum sentence of 3 1/2 to 7 years in prison (and a minimum of 2 to 4 years). However, because the client stood convicted of a felony while also having two prior felony convictions on his record, the District Attorney's Office requested that the judge classify the client as a "persistent felony offender" (as the DA was permitted to do, but not required). Under New York law, if a judge finds that a defendant is a "persistent felony offender", the defendant is subject to an increased term of imprisonment beyond the statutory maximum --- in this case, 15 years to life.
Such heightened sentences are not imposed automatically; rather, the sentencing judge must exercise discretion in deciding whether or not to impose them. An increased sentence can only be ordered if a judge finds that, after hearings are held and findings of fact are made, extended incarceration serves the public interest.
In this case, the judge was aware that our client was very ill, infected with HIV/AIDS and Hepatitis C. In addition, the judge conceded that our client was not a "criminal" threat to our society. Nonetheless, the judge held that "extended incarceration and life-time supervision will best serve the public interest" because of the client's potential to transmit the disease. The judge wrote:
"… as both defense counsel and the prosecutor point out, Defendant has pursued his life largely as a drug addict, to the point where he is now gravely ill. Extensive medical testimony and other evidence established that it is questionable whether, even if I sentence him merely as a second felony offender to the minimum of 2 to 4 years, he would still be alive at the expiration of his sentence. Given his weakened state, any assertion that Defendant is a serious threat to the public as a burglar is really not credible. However, if released, he may well return to the life of a street addict, thereby endangering the public through the exchange or sharing of dirty needles. … 15 years to life will ensure that [Defendant] gets the medical treatment he clearly needs, in a setting that will ensure that he takes his medications on schedule, and without resort to the use and sharing of dirty needles."
The judge acknowledged our client's grave illness, and held that he did not pose a substantial threat to the community. Yet, based on the possibility that at some future point our client might share a dirty needle, the judge felt justified in inflating our client's sentence astronomically to between 15 years and life.
In other words, the judge punished our client specifically because he has HIV/AIDS. Our client was not just treated differently, he was discriminated against. By the judge's reasoning, if someone else stood convicted of the same crime, and had the exact same criminal record as our client, but was healthy, or without a drug addiction, or suffered from a serious but non-transmittable disease, such as cancer, or from a transmittable but far less grave ailment, like the flu, the judge might have sentenced him to a prison term of 2 to 4 years (or, more likely, of 3 1/2 to 7 years). But because our client had HIV/AIDS, and for no other reason, the judge sentenced him, essentially, to the rest of his life in prison.
It is unconscionable to put people with HIV/AIDS in prison for greater periods of time because of their illness under the benign pretense of protecting the public or to "ensure" that people receive proper medical attention.
First, there are legitimate ways to protect the public from the spread of HIV/AIDS other than long-term imprisonment: needle exchange programs, drug treatment programs, and education, to name a few. Second, the judge, overconfident in prison medical care, seemed to think he was doing our client a favor, as if he was providing the client with long-term care at a hospital as opposed to punishing him with thousands of days in the cold confines of state prison. Third, HIV/AIDS can be spread inside as well as outside prison, through drug use and sex, so even if one adopts the judge's theory that our client is a threat by virtue of having HIV/AIDS, sending him upstate does not eliminate the risk he poses, it simply transfers those risks from the free population to the prison population.
I have represented hundreds of people with HIV/AIDS. I cannot fathom if other judges shared this judge's philosophy, sentencing people with HIV/AIDS more harshly to better protect the community, or keeping people at hellish Riker's Island to "ensure" that they receive treatment, or setting out-of-reach bail for people with HIV/AIDS to hold them in custody and prevent them from sharing dirty needles.
Discriminating against someone solely because he has HIV/AIDS by sentencing him to a longer prison term --- particularly between 15 years and life --- is itself a crime. Let us hope that other judges hold humanity in higher regard.