Will the Federal FIRST STEP Act Help People With HIV Convictions?

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The FIRST STEP Act (short for "Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person") has been touted as a bipartisan criminal justice reform bill that may allow hundreds of people in federal prisons an earlier release date. This includes those criminalized for HIV-related crimes at the federal level.

Among its provisions, the Act would provide $50 million annually to the Bureau of Prisons for vocational and educational programming, as well as more mental health treatment; it also would allow incarcerated people to apply for "time credits," or time off their prison sentences, if they successfully complete these programs.

These time credits are not get-out-of-jail-free cards; credited time is simply transferred to the number of days that a person must spend in a halfway house before finally going home. Still, living in a halfway house and beginning the transition back to the outside world is preferable to being locked in a prison.

Not every federal prisoner would be eligible for these time credits: The Act contains a lengthy list of convictions, including "homicide," that exclude people from time off for good behavior. But it also contains a list of exceptions, meaning that people convicted of certain sections of the homicide statute would still be eligible for time off. Among those who could complete prison programming and apply for time credits are people with HIV who have been imprisoned for donating, selling, or attempting to donate or sell their blood, tissue, organs, semen, or other bodily fluids under 18 U.S. Code section 1122 ("protection against the human immunodeficiency virus"). (There is no federal law criminalizing HIV through sexual activity. Moreover, in 2013, the Obama administration lifted the ban on HIV-positive donors donating organs to other HIV-positive people, and such transplants are already ongoing).

It's unclear whether the time credits section of the FIRST STEP Act changes existing policy and practice in the federal prison system for those prosecuted under section 1122. In an email response to TheBody, an unnamed spokesperson for the Bureau of Prisons, the agency that operates federal prisons, wrote, "We did not find any provisions in law or Bureau of Prisons policy prohibiting individuals sentenced under 18 U.S.C. 1122 from participating in programs in prison or receiving good conduct time credit."

How many people criminalized for HIV might be affected by the bill? No one seems to be able to answer that question, in part because no one seems to know how many people are currently imprisoned under section 1122.

As of the beginning of June 2018, 3.2% (or 5,547 people) of the 184,039 serving federal prison sentences had been convicted of homicide, aggravated assault, or kidnapping. But it's not clear how many of these thousands were convicted and sentenced for homicide, let alone how many were convicted under the section that specifically criminalizes attempting to donate or sell bodily fluids while HIV positive. Neither the federal Bureau of Prisons nor the U.S. Sentencing Commission tracks these numbers.

In response to queries from TheBody, the Bureau of Justice Statistics analyzed data from 1994 to 2014 and found no cases in which section 1122 was listed as a charge. The data may not be complete; the analysis was limited to up to five charges per case, meaning that if a person was prosecuted for more than five separate charges, the additional charges did not appear in the Bureau's analyses. However, a spokesperson for the Bureau said that, from the analysis of those 20 years, it did not appear as if anyone had been admitted into the federal prison system specifically under section 1122.

The offices of sponsoring representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA) did not respond to requests for comment about the decision to ensure that people convicted of section 1122 were explicitly eligible for time credits.

This is what we do know: As of 2015, 1,536 people with HIV were incarcerated in federal prisons, a jump from the 1,066 held in 1998. But that doesn't mean that any of these 1,536 people were convicted under section 1122 or would see their time in prison dramatically shortened should this bill become law.

The FIRST STEP Act also expands the Bureau of Prisons' (little-used) compassionate release program, which allows elderly and terminally ill people to ask for the opportunity to spend their last months with family at home instead of dying alone in prison. It further prohibits the shackling of pregnant people during labor, delivery, and postpartum recovery -- a legal reform that has been the policy of the Bureau of Prison since 2008. Moreover, it requires that people sentenced to serve time in federal prisons not be placed more than 500 driving miles from home.

Trump has promised to sign this bill should it pass both houses of Congress. The Act has already passed the House of Representatives by a vote of 360 to 59. Now, its companion bill must make it through the Senate, where legislators are critical of its failure to address mandatory minimums, limits on judicial discretion in sentencing, and other overly harsh sentencing policies and to instead focus only persons who are already in prison. These absences may make it harder to pass in the Senate.

In addition, the Act only affects segments of the federal prison population: The nearly two million people in state prisons and local jails will remain unaffected. This includes those who have been arrested and/or convicted of state laws criminalizing HIV non-disclosure. In other words, whether or not the Act passes, those incarcerated under their state's (outdated and antiquated) HIV criminalization statutes or those advocating the modernization of such laws will continue to have a fight on their hands.