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Michael Johnson, HIV Disclosure, and the Coercive Nature of Plea Bargains

November 28, 2017

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Race and Place Matter

When considering whether to take a chance at trial or to accept a plea bargain, race and place matter.

Kaba of Project NIA has co-founded campaigns to support abuse survivors criminalized for self-defense. She points to the case of Ky Peterson, a black trans man incarcerated in Georgia for shooting the man who raped him. When he was taken to a clinic for a rape exam, the woman conducting the exam told him that he didn't look like a rape victim. The police and prosecutors didn't believe him either, instead accusing Peterson, whom they assumed to be a woman, of luring the man into a trailer with promises of sex and setting him up to be robbed by his brothers.

After a year in jail, Peterson signed a plea agreement for what he thought was involuntary manslaughter and a ten-year sentence. (According to the court transcripts, however, Peterson actually pled guilty to voluntary manslaughter and was sentenced to 20 years.) "He knew that people were not going to believe him, that as a black trans man he was raped," Kaba stated.

But it's not just race and place. There's also understanding -- or a lack of understanding -- about HIV. Suttle, a black man living in Shreveport, Louisiana, recalled that the prosecutor in his case was a black woman; the judge was a black man. "We have people in places of power prosecuting people based on their limited knowledge of HIV: that it is a death sentence," he explained. At the same time, he recalled, he didn't know anything about HIV criminalization -- or resources to help him fight the charges. "People now have resources -- the Sero Project, the Center for HIV Law and Policy, advocates to consult with, opportunities to reach out and get more information rather than relying on courts to be fair," he reflected. At the same time, he realizes that many people remain unaware that such resources exist and, like him, sit in court feeling alone and desperate. "That means there's a lot more work for us to do," he said.

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In Missouri, with the threat of a 100-year sentence hanging over his head, Michael Johnson, a black gay man living with HIV, might also have feared that a jury would not believe him.

"It takes a lot here for people to be open about their HIV status," said Devin Hursey, a member of the steering committee for the U.S. People Living With HIV caucus and a member of the Missouri HIV Justice Coalition. Hursey lives in Kansas City, a three-hour drive across the state from St. Charles, where Johnson was tried and convicted. "Prevention workers are very progressive, but the average Missourian, unless they know about public health and the way that HIV is transmitted, is not."

Hursey, now age 27, still remembers learning about HIV in 7th grade when the Dramatic Health Education Project through the Coterie Theater performed at his junior high. "They did two monologues," he recounted. "The actors told stories of people living with HIV." But, he acknowledges, that particular learning experience doesn't happen in every school.


Symptoms of the System

The white, conservative suburb of St. Charles is approximately 15 miles from the suburb of Ferguson, where the police killing of 18-year-old Michael Brown sparked protests both locally and nationwide. St. Charles is also less than 25 miles from St. Louis, where police officer Jason Stockley was recently acquitted in the 2011 fatal shooting of Anthony Lamar Smith. His acquittal triggered weeks of protest, which were often met by police violence.

Not that Missouri's racial tensions are restricted to St. Louis and its suburbs, Hursey reminded TheBody.com. Last year, the state passed a law allowing prosecutors to charge schoolchildren, regardless of age, with a class E felony for a school fight in which someone is injured. Class E felonies carry a penalty of up to four years in prison. Missouri already has a high suspension rate -- and the highest racial disparity among suspensions in the nation. During the 2011 to 2012 school year, the state suspended 14.3% of its black elementary schoolchildren at least once; in contrast, only 1.8% of white schoolchildren were suspended. Missouri elementary schools go from kindergarten to fifth grade, meaning that their students range from ages five to ten.

For Michael Johnson, pleading guilty means that parole is his next hope of an earlier release. But parole practices in Missouri have long been fraught with opportunities for parole board members to humiliate prisoners seeking early release. One parole commissioner, who was particularly known for humiliating and intimidating parole applicants, has since resigned, but Johnson will still face an uphill battle not only to obtain parole but also not to be returned to prison for a petty parole violation.

As they regroup and plan to continue supporting Johnson, HIV activists recognize that the struggle doesn't end with Johnson or even the repeal or modernization of HIV criminalization statutes. Charles Stephens, executive director of the The Counter Narrative Project, which advocates around issues that impact black gay men, told TheBody.com: "Racist sentencing practices in the criminal justice system have been a key tactic in the practice of white supremacy throughout history. Michael Johnson is very much a victim of this system. We must continue to recognize that the struggle against HIV criminalization is also connected to the struggle against mass incarceration and racism.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women. You can find more of her work at Victorialaw.net.

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