Are We Punishing Diseases or Punishing People? An Interview With Trevor Hoppe

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Trevor Hoppe
Trevor Hoppe, Ph.D.
Mark Schmidt

The movement to end laws that criminalize people living with HIV for exposure or transmission has gained momentum in the U.S. in recent years. However, HIV is by no means the first disease to be used to target marginalized people who happen to be living with it. sat down with Trevor Hoppe, Ph.D., an assistant professor of sociology with the University at Albany, State University of New York (SUNY), to discuss his new book, Punishing Disease: HIV and the Criminalization of Sickness (University of California Press, 2017).

Kenyon Farrow: So, let's talk about your book. What's the central idea of Punishing Disease?

Trevor Hoppe: The big question of the book is: Should we use the criminal law to address infectious disease? That central question drives a lot of the book. It's to consider whether punishment is really the right response, or the appropriate response in a public health matter like HIV.

The conclusion of the book is to argue, no: Punishment is not the appropriate response, and there are other institutions better served to handle medical problems like HIV.

KF: One of the things that you demonstrate in Punishing Disease is that HIV was by no means the first infectious disease to be criminalized. If you could describe for our readers the connection between the history of disease criminalization in the U.S. and what we now see with HIV, specifically.

TH: The book opens with a history of infectious disease control, and that really requires going back to medieval Europe and the plague and quarantine policies. I'm interested in that moment when coercion in public health, forcing people to do something against their will, like getting vaccinated -- or, more extremely, being quarantined -- those moments when those coercive programs, the line between coercion and punishment gets blurred. That's what I call punitive disease control.

For example, I look at cases such as, in the 1940s, Seattle had a tuberculosis ward that was set up to quarantine, to isolate, tuberculosis patients who were considered highly noncompliant. That sounds like a reasonable notion, given that tuberculosis is so highly infectious and contagious when you have active TB. But what actually happened in practice was that they just rounded up poor alcoholics from one neighborhood and locked them up without due process in this ward, the tuberculosis ward.

It's moments like that when well-intentioned disease control programs go astray and start to single out marginalized communities and especially burden them with coercive programs. That's what I believe -- that the line between coercion and punishment gets blurred -- and I think that's a product of the fact that the people implementing these programs are actual people who have biases and prejudice and are informed by stigma.

That was true for HIV, but it was also true for TB and also true for influenza outbreaks. So, we've seen those moments throughout human history.

I will say that the extent to which HIV is criminalized under the law is new, in the sense that we haven't had a disease that had been so pervasively punished under the criminal law. But there have certainly been moments in time when it's hard to distinguish between a well-intentioned public health program and state-sanctioned punishments.

Related: What's the Future of HIV Criminalization Activism? An Interview With Trevor Hoppe

KF: You talk in the book about the relationship between AIDS in America -- the time into which we began to recognize HIV as an infectious disease -- and the war on drugs. Those are the two that I also talk about in my own work and speeches, that there is a direct correlation between the timing of both of these phenomena, right?

TH: Americans love to punish. I think that's really the consistent theme when you look at the criminal justice system, that when we see a social problem, our first reaction in so many cases is to lock people up and throw away the key. We see that as the most obvious and legitimate response.

We saw that with the war on drugs. Crack cocaine was singled out, particularly because it was associated with poor, urban, African-American communities that were highly stigmatized. And so, it was a political opportunity for lawmakers to capitalize on the public fear of black people in the U.S. and to market themselves to their constituents as being tough on crime by passing these very harsh, mandatory-minimum, and other kinds of policies, that disproportionately impacted black Americans.

I think we see the same thing happening with HIV. HIV emerges in the 1980s, right, in the belly of the beast, in terms of the birth of mass incarceration and the war on drugs. The lawmakers are already primed to punish. They already have -- you know, punishment is already at the top of their minds when HIV emerges. And so, I think we have to remember that when we think about why HIV gets criminalized in such a specific way that is unparalleled in modern American history. I think it was caught up in this wider net of punishment that Americans in the beginning of the 1980s, especially, became really addicted to.

That's how I see the connection. HIV is one example of a much bigger pattern of stigmatizing and punishing communities that Americans are afraid of and don't want to think too deeply about.

Punishing Disease: HIV and the Criminalization of Sickness
University of California Press

KF: One of the things you also talk about in Punishing Disease is that we're not talking just about criminal law. That is certainly one piece. But you also point us to some ways in which a kind of punitive response to HIV surfaces through the culture and other institutions, whether public health or other institutions, that are supposed to be responsive to the disease. If you could talk about some examples that you see of the kind of punitive disease control response happening, outside the courts and prisons and jails.

TH: Certainly. The first half of the book is really about the civil law, not the criminal law. It's looking at quarantine programs throughout history to see their application and understand them. There are lots of examples where quarantine starts to resemble punishment of marginalized communities.

For example, in World War II, tens of thousands of sex workers were arrested, and they were placed in civilian conservation camps (which effectively are concentration camps). This is a history that is not well documented. But what we know is that in many cases they were arrested for prostitution. They were sent to these conservation, quote-unquote, camps. And there was no appeal. There was no due process. There was no way that they could object to their detention because it was done allegedly on a public health basis, rather than a criminal law basis.

I'm interested, as a sociologist, in those moments when the civil law can become more intrusive and more extreme in its forms of detention, when it's driven -- especially by bias and prejudice -- against communities we are afraid to deal with.

We see that in World War II with sex workers, and we see that with HIV today in my interviews with health officials in Michigan. I think that when I went into this project, I really expected public health officials to describe a pretty compassionate response. I think that's how we imagine public health, as being the more benevolent institution. And there are definitely great people in public health, many people in public health who are living with HIV.

But what I found in Michigan, in these small towns, [was that] the local health officials who are tasked with responding and controlling clients that are HIV positive and that they believe are a potential health threat, really use a kind of policing strategy rather than a public health strategy. They devised all these strategies essentially to catch people and to hold them legally accountable for their actions. Oftentimes, they seemed intent on finding ways to punish their clients rather than to help them.

I think, again, these are moments when the line between, for example, a public health official and a police officer becomes really blurry. In Michigan, this didn't happen often. But in one case, for example, the local health department sent a memo to the prosecutor's office, telling him: "This is a client we have. We believe that he is spreading HIV. Here's where he hangs out. You should set up a sting operation to try to catch him."

I think that's when public health becomes a version of the police.

KF: Absolutely. Yeah. Oh, my God. I said that. In New York state, before I was in my previous job at Treatment Action Group, I was on a panel discussion about what an end-the-epidemic plan would look like for the state. I was on a criminal justice panel. And I said to people in the health department and [who] live in New York City that [when] contact-tracing and partner notification practices stop looking like the NYPD, they might actually have better outcomes.

TH: Yeah, exactly. This is anecdotal. It's not in the book, but I think it represents so much. I have a friend who is living with HIV in Michigan. He tested positive for -- or believed that he might have been infected with -- syphilis. So, he called the health department to try to schedule testing and treatment. He's doing the right thing.

The nurse who was answering the phone essentially looked up his file and said: "Well, we know that you're living with HIV. We know that you've been going around having sex with other people and not telling your status. We could really call the police and have you arrested."

And it's, like, what public health outcome is that serving, other than deterring this individual from ever seeking treatment or testing from you again in the future? I think in New York City -- I hope -- that it's a little bit better. I would imagine it is. But there are probably less extreme versions of that story, where either you get judgment, or you get suspicion at the very least.

But in these small towns in America, really, the gloves are off when it comes to dealing with people living with HIV, for a local health department.

KF: In Punishing Disease, you talk a lot about punitive disease control through public health, but then you also shift the focus to the criminalization of sickness as a specific frame. If you could talk a little bit about the beginning of the epidemic and the way in which we started to see the specific kind of criminal law come into being.

TH: Well, right at the very beginning of the epidemic, there was really this free-for-all at the local level for prosecutors and police to try to figure out ways to punish people living with HIV, using existing law. There were cases around the country where people living with HIV would be charged with crimes such as assault with a deadly weapon or attempted murder. And pretty consistently, those attempts failed, because they could not prove that the defendant had an intent to harm their partner. It is just unusual that you can show intent in these cases. So, those attempts failed.

Now, those failures received a great deal of media attention. You had a growing sense, among police and prosecutors, that they needed new laws that did not have that problem of intent built in, [so] they could punish people without having to prove intent, because that posed a problem. So, there was that general thirst, that general sense that we needed new laws.

Then, you have a series of high-profile arrests in states around the country of sex workers living with HIV, all women. Police were pissed. They were furious that they could not put these women behind bars for more than 30 days or so, because prosecution was a misdemeanor under most state codes at the time. And so, police actively began lobbying lawmakers in their states to pass new HIV-specific felony laws.

In some states, such as Colorado, we got HIV-specific felony prostitution laws. But in other states, such as New Jersey, we got broader felony laws introduced, targeting people living with HIV -- but all driven by a fear of sex workers in particular and the threat that they allegedly posed. We know now that they did not pose this threat. But, allegedly, they posed the threat that they were going to provide a bridge from high-risk communities to the general public. That's how they were described. You know, a John was going to get HIV from a prostitute [and] go home and infect his wife, who was then going to have a baby and infect their baby. That was the great fear.

To my knowledge, that never happened or, if it did, it wasn't reported. But that's how it was depicted in the media.

So, it's really sex workers, and fear of sex work, that drove the early efforts. And then, it kind of transformed in some states into homophobia and, in particular, debates about whether or not states should repeal their sodomy laws. In most states, it was a crime to have sex if you were a gay man at that time.

As states debated whether they should repeal their sodomy laws, in some cases, such as Nevada, they decided: "Well, if we're going to repeal the sodomy law, we have to criminalize HIV. Otherwise there will be this huge outbreak." You know, allegedly, that was, at least on paper, their concern.

Really, it's a story that plays out at the state level, mostly. As I argue, the federal law really has a very minimal role to play. It's more of a disseminator of ideas, rather than an impetus, you know. By the time the presidential commission [on the HIV epidemic] comes out with the recommendation that states consider adopting criminal statutes targeting people living with HIV in 1988, dozens of states had already introduced legislation that would criminalize people living with HIV.

So, it's really a state story, I think -- which is true for the criminal laws, in general, mostly because most people behind bars are behind bars at the state level or the local level -- because the police power is the power of the state, not of the federal government. That makes it really hard for reformers. It's not something that can happen at the federal level; it's something that happens at the state level.

This interview has been lightly edited for clarity.