University of California Press

From the very beginning of the epidemic, AIDS was linked to punishment. For evangelical Americans, AIDS represented divine punishment for the moral depravity sweeping America—namely, what conservatives derisively termed the “homosexual lifestyle.”

According to a 1987 Gallup poll, 61 percent of American evangelicals and 50 percent of nonevangelicals agreed with the statement “I sometimes think AIDS is a punishment for the decline in moral standards.”

Televangelists like Jimmy Swaggart and Pat Robertson took to the airways to publicly condemn homosexuality as the cause of AIDS. Their like-minded political counterparts, activists such as William F. Buckley and Lyndon LaRouche, spearheaded campaigns aimed at getting states to pass punitive laws: to criminalize homosexuality, to tattoo newly diagnosed patients, to raid gay establishments.

AIDS activists fiercely resisted these policies as draconian efforts to trample on civil liberties—policies that they argued were stigmatizing and thus likely to be counterproductive in the fight against AIDS. Activists argued that freedom and privacy, not coercion and intrusive surveillance, were the keys to a successful disease control strategy.

Despite their efforts, in the late 1980s state lawmakers around the country began to introduce criminal legislation targeting people living with HIV, whom they viewed as recklessly exposing their sexual partners to the disease. Echoing the sentiments of many Americans, a California newspaper editorial argued in 1987 that these laws were needed “to prevent unstable AIDS victims from passing on a death sentence to others.”

Although they are sometimes mislabeled as “HIV transmission laws,” most criminal laws enacted in the United States governing HIV exposure and/or disclosure make no mention of transmission or even the risk of that outcome. Instead, these new offenses resemble what prosecutors call a “crime of omission”: by failing to reveal their HIV status to their partners, HIV-positive people in dozens of states can now face stiff prison penalties if charged under these felony statutes.

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Although AIDS crystallized a specific set of social anxieties about sex, drugs and death, the brand of punitive rhetoric and policies it spirited was not unique to AIDS in the 1980s. While President Reagan’s administration is notorious for its callous indifference to the epidemic, First Lady Nancy Reagan is equally notorious for her Just Say No campaign against drugs.

President Nixon first announced a war on drugs in 1971, but it was ratcheted up to new heights in the 1980s as federal and state authorities instituted a swath of new policies aimed at keeping drug users behind bars for as long as possible. In the midst of these heated policy debates, some authorities even made extremely sensational calls for drug dealers to be put to death.

In 1986, for example, Vice President George Bush told reporters that he would probably support the death penalty for large-scale drug dealers. Four years later, Los Angeles Police Chief Daryl Gates (founder of the D.A.R.E. school program) testified before Congress that he believed casual drug users were treasonous and “ought to be taken out and shot.”

There are striking similarities between the conservative backlash to AIDS and the crackdown on drugs. While conservatives promoted policies that targeted homosexuality in the face of AIDS, so too did they promote policies that stigmatized minorities in their war on drugs. The racism underlying the Reagan-era drug war was belied by its special focus on a drug that was disproportionately used by poor Black Americans: crack cocaine.

Indeed, Congress enacted the Anti-Drug Abuse Act of 1986 that mandated extremely different sentences for crack cocaine (five years for five grams) and its powdered cousin more commonly used by whites (five years for five hundred grams); while this one-hundred-to-one disparity was on its face “color-blind,” critics nonetheless viewed it as racist because of its devastatingly disparate impact on Black men.

By the end of the decade, America’s jail and prison population had doubled to over one million inmates; while African Americans constituted just 12.1 percent of the American population in 1990, they made up a lopsided 48.4 percent of its booming prison population. Like the homophobia that haunted the conservative backlash to AIDS in America, racism drove America’s obsession with punishing crack cocaine.

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The story of mass incarceration is now well known to social scientists. However, scholars have recently pointed out that the war on drugs is but one of many theaters in the American war on crime. For example, experts argue that an undeclared war on sex simmered and eventually erupted just as Americans had begun to lose confidence in the war on drugs.

Even as the number of Americans under correctional supervision (including those in jail, in prison, on probation, and on parole) flattened and declined slightly between 2006 and 2013, the rolls of state sex offender registries ballooned 35 percent to include nearly 750,000 Americans. A recent study found that Black Americans are registered at rates twice that of white Americans—reflecting the broader racialized dynamic of American criminal justice.

Because HIV is sexually transmitted and was immediately linked to homosexuality, it may be tempting to view efforts to criminalize HIV as merely another example of efforts to criminalize nonnormative sexuality. However, Punishing Disease reveals that punitive policies toward people living with HIV are not driven solely by an interest in policing sexual morality.

The book reveals instead that the criminalization of HIV is but one of the more recent examples in public health history of an effort to control disease by coercion and punishment—what this book terms “punitive disease control.”

Although calls for punitive HIV control measures quickly became intertwined with (and at times nearly indistinguishable from) calls to police sexual norms, these two social projects are not the same. As this book reveals, the impetus to control, segregate, and punish the sick has a long history that stretches back to plagues such as smallpox and the Spanish flu, epidemics whose spread had little to do with sex.

The history of punitive disease control stretches back centuries, but no disease in modern American history has been met with a similarly systemic campaign to criminalize people living with an infectious disease. The book examines how a social problem typically perceived as medical—in this case, infectious disease—became a target for criminalization.

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Punishing Disease looks at how HIV was transformed from sickness to badness under the criminal law, or what this book terms the “criminalization of sickness.”

Under what circumstances do police and prosecutors claim jurisdiction over social problems typically thought of as medical problems? How is HIV litigated in a criminal court? And what are the effects of criminalizing sickness?

It is no mistake that authorities responded to the HIV epidemic with a new punitiveness. Three historical factors helped to shape the punitive response to AIDS.

First, the coincidence of HIV’s emergence with the birth of mass incarceration as a social institution meant that lawmakers were already in the habit of proposing handcuffs and prisons as solutions to social problems.

Second, HIV was immediately linked to stigmatized social groups that were, at that historical moment, particularly hated and, in many cases, already viewed as suspected criminals.

Third, during the early 1980s, there was widespread uncertainty and fear over the cause and effects of AIDS. This uncertainty created an opportunity for alternative theories to emerge, particularly the theory that AIDS was caused not by a virus but by a deviant lifestyle (namely, drug use and promiscuous homosexual sex).

Taken together, these three historical factors created a perfect storm for punitive rhetoric and criminalization on a level not seen before in the modern history of American disease control.

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Although many readers are likely to associate punishment most readily with the criminal justice system, the analysis contained in the book is not limited to that institution. The book examines how institutions of public health shaped punitive policies toward infectious disease historically and, more recently, toward AIDS.

Although some readers may view public health as a comparatively benevolent institution, this book does not view either public health or criminal justice as inherently good or bad. Instead, this book adopts the classic sociological approach to examining how public health and the law label and control “deviance”—defined by sociologists as behavior perceived as violating social expectations.

Punitive disease control and the criminalization of sickness represent two sides of the same coin; they share an interest in enforcing social norms and sanctioning behavior labeled deviant but differ in their institutional contexts (for example, public health versus criminal justice).

While criminal justice and public health policies may determine how authorities ought to respond to such norm violations, their enforcement is not automated; legal and health authorities (prosecutors, judges, health officials, nurses, and others) must investigate rule breakers and decide how to proceed in each case.

Punishing Disease examines the gap between the law on the books and the law in action. However, as this books shows, punishment is more than just the sum of state laws and policies and the actions of state authorities who enforce them.

Stigma and ignorance often serve as invisible hands guiding the wheel as lawmakers draft statutes and authorities determine how they are applied. Stigma—against HIV, against gay men, against prostitution—can lubricate the transition from “sickness to badness,” while ignorance about how HIV is transmitted can facilitate punitive responses to scenarios that involve little or no risk of transmitting the disease.

Each chapter of Punishing Disease examines a different facet of a social problem that is collectively referred to as “the criminalization of HIV.” While that moniker implies a unidirectional and monolithic social process, the reality is far less tidy; it involves a wide array of players operating in different institutional contexts and is dependent on numerous cultural and political variables.

Moreover, the pathways to criminalization and end products vary tremendously by state and sometimes even by county. Laws might be passed but never enforced. Or lawmakers may have shunned HIV-specific criminal laws, but creative prosecutors nonetheless find ways to punish under general statutes (typically felony assault). Nor is criminalization a dichotomous state, with HIV being “criminalized” in some states and “not criminalized” in others; punitive approaches to HIV instead fall along a spectrum of possibilities.

The goals of Punishing Disease are to examine under what conditions an impulse to punish becomes fused to the social project of controlling disease, and to analyze the effects of this marriage.

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At the heart of Punishing Disease is a central question: Why punishment? Although public health and medical institutions are designed to manage epidemics and viruses, punishment as an institution is built to manage crime.

The tools designed for one job—pills versus handcuffs, hospitals versus prisons—are not effective for the other. The tool for punishing deviance is a hammer ill-suited for managing disease.

In criminalizing sickness, HIV exposure and disclosure laws threaten to erode the boundary between sickness and crime, paving the way for a new era of criminalization that targets disease.

Punishing Disease reveals that criminalization has predictable effects. It reproduces stigma. It does not prevent disease. And it codifies outdated and deeply flawed ideas about HIV into law.

Now that the door to criminalizing sickness is open, what other ailments will follow? When our colleague shows up to work with the flu in the future, will we wonder whether we should call the police?

While we cannot predict what will happen tomorrow, moves in several state legislatures to extend their HIV-specific criminal laws to include new diseases such as hepatitis and meningitis demonstrate that this possibility is more than academic.

Trevor HoppeMark Schmidt

Excerpt reprinted with permission from the University of California Press. The book won in the category of LGBTQ Studies at the 2018 Lambda Literary Awards (a.k.a. the Lammys).

Trevor Hoppe is an assistant professor of sociology at The University at Albany, State University of New York (SUNY). His research examines how punishment came to be a legitimate response to controlling HIV and disease more generally. He is also co-editor of The War on Sex.