In communities in the United States already disproportionally affected by high rates of HIV and incarceration, evidence suggests that mass incarceration also furthers the spread of HIV. According to some estimates, 14% (or 1 in 7) of all people living with HIV in the US, and 20% (1 in 5) of Black Americans living with HIV, will pass through a jail or prison every year. Though there is variation from state to state, the prevalence of HIV in state and federal prisons in the US is nearly five times greater than that of the general population. The factors associated with disproportionate rates of incarceration—drug use, non-conforming sexual or gender identity, mental illness, poverty, or being a person of color—also increase a person’s risk of contracting HIV.
More than 30 states have laws in place that criminalize alleged HIV exposure, non-disclosure or transmission. Many states also apply harsher penalties to sex workers and people who inject drugs on the basis of HIV status. These laws disproportionately affect women, people of color and other marginalized communities. The authors argue that while HIV criminal laws must be reformed to address the overrepresentation of PLHIV in the criminal legal system, it is also essential to consider broader drivers of incarceration for PLHIV, including the war on drugs and discrimination against people of color and LGBTQ people in housing, employment and education. Advocacy efforts seeking to reform HIV criminal laws without attention to broader community-level factors affecting risk of incarceration for PLHIV, they suggest, are incomplete.