HIV Criminalization: Black Radicalism and Anti-Carceral Organizing as Hiv Prevention and Treatment

“One might have hoped that, by this hour, the very sight of chains on black flesh, or the very sight of chains, would be so intolerable a sight for the American people, and so unbearable a memory, that they would themselves spontaneously rise up and strike off the manacles. But, no, they appear to glory in their chains; now, more than ever, they appear to measure their safety in chains and corpses.” James Baldwin, “An Open Letter to My Sister, Miss Angela Davis” (New York Review of Books, 1971)

Blackness disorients AIDS discourse and narratives, staging a crisis for the normative understanding of HIV/AIDS activism in the United States, which centers on whiteness and queer liberalism. For Black people AIDS activism is always already a struggle against premature death. HIV criminalization extends the afterlife of slavery. The prison industrial complex (PIC) and the ongoing AIDS epidemic are tied together within a broader history of criminalization of and medical malign neglect towards our communities — of color, queer, transgender, gender non-conforming, poor and disabled. In the face of continued HIV criminalization, the War on Drugs and the rendering of political imagination captive to the carceral, PIC abolitionism speaks to HIV/AIDS prevention and treatment. Inside/outside organizing against homophobia and for medical services by ACT UP members such as Gregory Smith and Kiyoshi Kuromiya force us to rethink AIDS activist, black and queer liberationist and anti-prison activist social histories as interlaced. Queer and/or trans liberationist, AIDS activist and prison abolitionist critiques converge in the struggle for the decriminalization of HIV/AIDS as a crucial component of AIDS and abolitionist activism.

Frantz Fanon in his chapter of Black Skin, White Masks (1952) entitled “The Fact of Blackness” elucidates how the black becomes a “phobogenic object, a stimulus to anxiety” in the anti-black imaginary and how racial blackness functions as a repository for white racist projections of an anti-black libidinal economy. Fanon’s insights about the psychic life of racism are dramatized by the recent HIV criminalization of Michael Johnson, a gay black man.

Black cisgender masculinity continues to be figured, “the biological” and “as a penis” as Fanon theorizes in Black Skin, White Masks. In anti-queer and anti-black and AIDS phobic sensationalistic media, Michael Johnson is figured as a pathogenic threat. Within current biopolitical and neoliberal hegemonic representations of HIV/AIDS, HIV/AIDS has moved from a site of activism that throws into relief the structural violence that propels it — AIDS theory and cultural critics from Douglass Crimp to Cindy Patton to Cathy Cohen and most recently Adam Geary have written about it — to a more neoliberal HIV health subjectivity where HIV/AIDS is about personal responsibility and disclosure and AIDS “risk rhetoric.” This shift has meant that laws that criminalize the failure to disclose HIV status, which were installed in state criminal law since 1988 and with the Ryan White Act in 1990, have proliferated and there has been very little attention towards the social truth that homeless queer and/or trans people, people of color and sex workers (or any combination of those identities) bear the brunt of these punitive laws. The American Legislative Exchange Council, or ALEC, which in the wake of public outcry following the tragic death of Trayvon Martin, recently abandoned efforts to push for voter ID and stand your ground legislation, was also instrumental to the creation of HIV criminalization model legislation.

The U.S. are not only the most imprisoning nation, but also the nation with the most HIV criminalization laws. Ronald Reagan’s endorsement of HIV disclosure penalization statues coincided with his allegiance to the continuing racialized “War on Drugs,” which emerged during the Nixon administration and extended throughout the Reagan, as well as throughout the Clinton presidency, emblematized by the passing of “three Strikes” law and the 1994 Crime Bill. The growth of the prison industrial complex, the assemblage of laws criminalizing HIV and addiction, all overlapped with and was underpinned by neoliberal economic policy. The reflexive response of the State to AIDS has always been securitization/borders — from proposed quarantine to the Jesse Helms inspired HIV travel ban — lifted, except for many sex workers and drug users — criminalization and social abandonment. In the face of such a response, as well as death, loss and mourning AIDS activists continue to pose a radically different and in the tenor of Antonio Negri and Michael Hardt’s work, what we might call an “affirmative biopolitical question”: how can we create more AIDS resources in less oppressive ways?

The criminalization of HIV/AIDS did not simply occur under Reagan’s neoliberal regime, during which the President’s Commission on HIV/AIDS funded only those states with criminal disclosure laws, but occurs currently, in a continuum of violence, through the prosecution of black gay with AIDS as pathogenic and bio-terroristic threats, ranging from Gregory Smith to Daniel Allen. In the late 1990s Kuromiya, along with other ACT UP Philadelphia members organized a demonstration on behalf of Gregory Smith, a queer black incarcerated AIDS activist and ACT UP member who was involved in the Critical Path AIDS project while inside. While incarcerated, Smith organized PWAs, published a newsletter about prison and HIV/AIDS issues and also started writing a memoir. Smith was sentenced to an additional 25 years in prison for allegedly biting a guard; his “offence” was using saliva as a potentially lethal weapon, despite the fact that saliva is non-HIV transmissible. He remained public about his sexuality and his HIV positive status, despite the threat of institutional and personal, psychological and physical violence that this entailed. Gregory Smith passed away on November 10th, 2003 at the St. Francis Medical Center in Trenton, New Jersey. He was forty years old. “Greg did not have to die. AIDS bigotry and hysteria took his freedom, and now medical neglect has killed him,” Asia Russell, of ACT UP Philadelphia, stated following his untimely death.

In November of 2009, Daniel Allen, a black gay Michigan resident, was charged with “bio-terrorism” for the “use of a harmful biological device,” his own (non HIV transmissible) saliva and biting a neighbor in a fight. Until very recently, prisons in the South continued segregationist policies separating HIV positive incarcerated people from non-HIV positive people. The stigmatization of HIV positive incarcerated people, many of whom are queer and transgender of color is not a new feature of the carceral apparatus. Rather, it is a normative occurrence with a long and sordid history. From 1974-1989 lesbians and gays (and those presumed to be) incarcerated in Florida’s Polk County Jail were segregated from the general population and forced to wear pink bracelets

the symbolic violence of which links back to the Nazi pink triangle. How have we arrived at our present neoliberal sociopolitical moment — what Jasbir Puar calls “homonationalism” and what Lisa Duggan defines as “homonormativity” — as seen through the privileging of military and marriage by LGBT organizations?

I’ve been wondering about AIDS activism in our neoliberal era of hyper incarceration and hyper deportation. I recently read the Human Rights Watch report “HIV/AIDS Services for Immigrants Detained by the United States” (2008), which speaks to suffering endured and courageous resistance manifested by incarcerated undocumented queer and/or trans folks living with HIV/AIDS. The harrowing story of malign neglect and institutional violence that Victoria Arellano struggled to survive, the inspiring moment of solidarity where non trans incarcerated men took collective action to get her medical care and their disappearance and forced relocation to other detention centers after her death, made me think about incarceration as an instrument of social control and political repression. The history of the prison illustrates its use as a violent and destabilizing means to disrupt social movements, to rip apart loved ones and social networks on the large scale of communities and at the micro level of collectives and organizations dubbed “gangs” by the penal system. It also shows the ways in which supermax incarcerating sites that hold “political prisoners” (i.e. political organizers) in isolation from loved ones and deprive people of human contact aimin for any and all forms of death, destruction, despair, destitution and depoliticization.

I’ve been thinking about the limits of “safe sex” discourse and the radical potentiality of mobilizations for HIV prevention justice. What does “safe sex” mean in a context in which street sex workers are prosecuted for carrying condoms? We’ve already witnessed the traumatic violence of the HIV/AIDS intensifying War on Drugs and the needle exchange ban. Stigmatization and biopolitical regulation of legalized sex work (porn) is also happening in places such as California where there’s legislation on the ballot such as Prop 60 which, if passed, would mandate condoms for porn actors and in their absence, open up performers to a lawuits. This type of biopolitical regulation and AIDS phobia is not only controlling and opposed by many, especially queer and/or trans performers, it also works against AIDS activist and scientific pedagogy about HIV/AIDS. Even the Center for Disease and Prevention, with the pushing from the HIV Prevention Justice Alliance and other organisations has modified their language and stopped referring to sex without condoms as “unprotected” because that rhetoric obscures the range of ways that people protect themselves from transmission of HIV, such as Prep. How can we create more HIV/AIDS awareness and resources in less oppressive and stigmatizing ways? How can we inhabit an AIDS activism rooted in prison abolitionist politic(s)? In terms of critical genealogy: how is it that certain types of AIDS activism – philanthropy especially — have become normalized and institutionalized while other forms of AIDS activism have become marginalized or worse, monumentalized as a frozen remnant of a seemingly now transcended past of radical performance?