The Eighth Amendment is meant to protect incarcerated individuals against harm from the state, including state inaction in the face of a known risk of harm. While the Eighth Amendment’s protection prohibits certain prison disciplinary measures and conditions of confinement, the constitutional ambit should arguably encompass protection from the serious risk of harm of sexual assault, as well as a corollary to sexual violence: the likelihood of contracting a deadly sexually transmitted infection like HIV. Yet Eighth Amendment scholars frequently question the degree to which the constitutional provision actually protects incarcerated individuals.
This Note draws on previous scholarship on cruel and unusual punishment and proposes a novel method for bringing an Eighth Amendment claim. This claim centers on advocating for access to preventative HIV medication in the form of a daily pill known as PrEP, utilizing a model litigant to ground the constitutional analysis and anticipate potential pitfalls. Through this novel claim, the Note joins the global movement to end the spread of HIV by protecting incarcerated communities from contracting the virus during their sentences.