26-d-1 Involuntary Testing

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

26-D-1. Involuntary Testing

Mandatory testing policies vary widely among states. States may also have different policies for different diseases. For example, a state may require prisoners to take a TB test but not an HIV test. If you are outside New York State, you should check your state's laws to find out what its testing policies are. Because courts find that the prevention of disease is a legitimate state interest, courts generally allow prisons to test prisoners for infectious diseases, even without a prisoner's consent.⁵⁸

(a) HIV Testing

In New York State prisons, you normally cannot be tested for HIV without your consent (which means that you will not be tested unless you voluntarily agree).⁵⁹ But, if you are convicted of certain sex offenses, you can be tested for HIV against your will if the victim requests that you be tested.⁶⁰ You will learn your test results and the results will also be sent to the victim, and possibly to the victim's immediate family, guardian, physicians, attorneys, and medical or mental health providers. Past and future contacts of the victim may also be notified if there has been a risk of HIV transmission to that contact.⁶¹ Your test results cannot be used against you in a civil or criminal proceeding related to the events that were the basis of your conviction.⁶²

Federal prisons, unlike New York state prisons, can require a prisoner to undergo HIV testing, although federal prisons do not test all prisoners. If you have a sentence of six months or more, and if medical personnel think you might be infected with HIV, they may require you to take an HIV test.⁶³ If you refuse the test, you might receive an incident report for failing to follow an order.⁶⁴ Also, if you refuse HIV testing, you may not be able to file a claim for failure to receive adequate medical care for that condition.⁶⁵ Additionally, federal prisons conduct mandatory random testing once a year. If you test positive, the prison cannot subject you to disciplinary action based solely on your results, though you may be punished if you have performed an act that could transmit the disease.⁶⁶ Also, federal prisons test prisoners being considered for release, parole, good conduct time release, furlough, or placement in a community-based program. If you refuse to be tested, prison staff may result file an incident report for refusing an order.⁶⁷ If you test positive, the prison cannot deny you participation in activities and programs just because of the result.⁶⁸

Outside of New York, many states have involuntary HIV testing when you enter prison,⁶⁹ during custody, and/or upon your impending release.⁷⁰ Involuntary HIV testing has been challenged on the basis of the Eight Amendment's prohibition against cruel and unusual punishment, the Fourth Amendment's prohibition against unreasonable searches and seizures, the right to privacy, and the Equal Protection Clause of the Fourteenth Amendment. However, courts tend to uphold involuntary testing on the grounds that it is reasonably related to a legitimate penological interest.⁷¹

(b) TB Testing

While HIV cannot be passed from person to person by casual contact, TB is spread through the air. So, prison TB testing policies often differ from prison HIV testing policies. In New York State, Department of Corrections and Community Supervision ("DOCCS") policy requires all prisoners entering prison to be tested for TB. The TB screening includes a chest x-ray and a skin test, where a small amount of purified protein derivative ("PPD") is injected beneath your skin and observed for a reaction. After the initial test, you will be re-tested yearly. If you refuse testing, medical personnel will counsel you as to the benefits of the test. If you still refuse, then you will be placed in medical keeplock (also known as "tuberculin (TB) hold") for up to a year until you have received three negative chest x-rays or you agree to be tested. While in TB hold, you are only allowed one hour of solitary exercise per day and three showers a week. You lose your telephone privileges but can receive visits from lawyers.⁷²

Courts have generally upheld the New York State DOCCS TB testing policy against challenges claiming violation of the Fourth Amendment protection against unreasonable searches or the Eight Amendment prohibition against cruel and unusual punishment because they consider the policy to be reasonably related to preventing the spread of tuberculosis in correctional facilities.⁷³ Additionally, some courts have upheld mandatory TB testing or confinement in TB hold even if the test is against the prisoner's religious beliefs.⁷⁴ However, DOCCS TB policy states that "[a]ccommodations for those with religious objections to tuberculin skin test may be made if they can be done without putting the health of other inmates and staff at...