People Living with HIV (PLWH) are, on average, living longer due to the revolutions in available treatment, while grappling with a system that is inadequate to address the needs of the general aging population, let alone the specific needs of People Living and Aging With HIV (PLAWH). PLAWH who are aging with a criminal record face greater difficulty getting the healthcare and support they need. For this reason, it is urgent that advocates increase awareness of the issues faced by this particularly vulnerable population and work to mitigate the ways involvement in the criminal legal system limits the ability for PLAWH to age with safety and dignity.
Why Do PLAWH Have Criminal Records?
More people are incarcerated in America today than in any other country or at any other time. The population of incarcerated Americans is also getting older. By 2030, more than a third of incarcerated people will be classified as older adults. About a fourth of the U.S. population has a criminal record.
Yet, even after someone has “done their time”—completed any sentence of incarceration, parole, and/or probation—they are still limited by the criminal legal system. Every state (and the federal government) imposes a host of “collateral consequences” upon those who have a prior criminal record, impacting their ability to access public benefits, housing, licensure for jobs, etc., for years after their release.
Incarceration has been shown to be strongly linked to higher vulnerability for acquiring HIV. While it is difficult to tell if the systemic barriers that lead to incarceration or the incarceration itself are at the “root” of this correlation, it is important to recognize that the correlation exists. PLWH also are targeted by the criminal legal system for engaging in activities, such as consensual sex, for which a person not living with HIV would not be penalized or would receive a lesser penalty. Thirty-two states have these criminal laws, enforcement of which is primarily against Black PLWH.
‘A large percentage of people living with HIV also struggle with housing security at some point in their lives.’
Groups that are hyper-policed by the criminal legal system are also groups that are particularly vulnerable to acquiring HIV. Since its inception in the 1960s, the “War on Crime” has targeted Black people, who also represent one of the fastest-growing populations acquiring HIV. Similarly, LGBTQ+ folks, particularly Black and brown LGBTQ+ folks, make up a disproportionate number of HIV cases and are more likely to be incarcerated in their lifetimes.
Impact on Aging with a Criminal Record
Even after completing the terms of their sentence, people face many challenges due to their interaction with the criminal legal system, including getting a job, finding stable housing, and difficulty affording higher education due to being cut off from loans. While collateral consequences vary from state to state, they consistently constrain the choices available to people during and after incarceration. And for people living and aging with HIV, the limitations can be compounded in many ways.
Take housing, for example. Experts nationwide agree that homelessness among older Americans is on the rise and will only worsen and in some cities, such as Los Angeles and Boston, rates are expected to triple by 2030. Overall, a large percentage of PLWH also struggle with housing security at some point in their lives. As PLWH age, previous coping mechanisms like couch surfing may become unsustainable due to increased needs for physical accommodations.
Although private landlords are forbidden under the Fair Housing Act from having a blanket ban against renting to people with criminal records, unless a jurisdiction has proactively passed legislation to ban the conduct, landlords can, and do, take one’s prior criminal record into account when choosing to rent to someone. At the same time, PLWH who have been incarcerated are more likely to have a spotty credit or employment history, which further alienates landlords. A PLAWH may find themselves with increased need for accommodations, while simultaneously being unable to rent any decent housing on the private market. Similarly, PLAWH may find themselves turned away from assisted living facilities on the basis of that same record.
For people living and aging with HIV, enduring consequences of incarceration represents yet another obstacle to obtaining necessary services.
At least 57% of male and 71% of female PLAHIV live below the poverty line, which means that they likely rely upon government services for their basic needs, such as subsidized housing. There are few absolute bars set at the federal level that would exclude a person from subsidized housing: 1) being a lifetime enlistment on a sex offense registry; 2) having been convicted of manufacturing meth on public housing property; or 3) having within the previous 3 years been convicted of a drug offense.
In practice, however, most local housing authorities have much stricter restrictions, some going so far as to allow eviction prior to any conviction. These policies of exclusion are likely to become even worse under the Trump administration based on their slashing of funds for subsidized housing and “tough on crime” stances, which may lead to the renaissance of such policies as the “one strike rule” and incentivizing local housing authorities to evict tenants/deny admission to tenants with criminal records.
Collateral consequences mean a person is never entirely free from the impact of the criminal legal system, even after they have completed their sentence. For PLAWH, these enduring consequences represent yet another obstacle to obtaining necessary services.
What Can Be Done?
There are ways that PLAWH can mitigate the impact of a criminal record. Various jurisdictions offer legal mechanisms that allow individuals to clear their records—removing charges and, in some cases, convictions. As a result, portions of the record are no longer visible to the public, and in most cases, are not required to be shared.
Advocates also can push for the repeal of laws that impose collateral consequences. Simultaneously, there is movement nationally for “fair chance legislation,” which would prohibit landlords from using criminal records in housing decisions, and “clean slate” legislation, aimed at expanding eligibility for record clearance.
You can find more information about other policy areas that impact People Living and Aging with HIV in CHLP’s legal primer, available for download here: An Introduction to Legal Issues Facing People Living and Aging with HIV.
Kae Greenberg is a staff attorney at The Center for HIV Law and Policy in Brooklyn, New York.
Photo credit: Shutterstock/Tish1
