Do Prisoners Have a Right to Hunger Strike?
With the California prison hunger strike continuing into its second week and now involving thousands of inmates statewide, I thought I’d reprise a post from 2010 about the legal implications of hunger striking. Disclaimer: I haven’t updated my research since then, but am simply re-posting the information in case it’s of interest. Links may be broken or out-of-date.
If you’re on a hunger strike and someone force-feeds you, that sort of ends your strike, interfering with your First Amendment right to protest, but also with your Fifth/Fourteenth Amendment due process right to refuse medical treatment, as well as various state privacy rights you may have. In some cases, force-feeding could violate the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment. By analogy, across the Atlantic, the European Court of Human Rights has in some cases found force-feeding to violate Europe’s provision against “inhuman or degrading treatment or punishment” (see PDF p. 7).
On the other hand, in the United States, prisons have an Eighth Amendment obligation to keep prisoners alive — or at least, in legalese, not to demonstrate deliberate indifference to a substantial risk of serious harm — and may also have various obligations under state law. So, if you’re on a hunger strike and you’re in prison, can the prison staff force-feed you? A Connecticut state judge recently ruled that it’s OK for prison staff to continue force-feeding a prisoner who’s been on a hunger strike for over two years (see also this commentary, criticizing the decision, from the UConn student newspaper, and this AP report). In an amicus brief in support of the prisoner in this case, professors from the Yale, Northeastern, and Western New England law schools had argued that force-feeding could violate not only the Constitution but also international law, and noted that the World Medical Association has condemned force-feeding.
As the WMA’s Malta declaration begins, hunger strikes “are often a form of protest by people who lack other ways of making their demands known,” including prisoners wishing to call attention to an individual or collective grievance. There’s been some confusion lately about whether or not there’s a hunger strike on in California’s prisons to protest the Three Strikes Law. Terry Nichols, the (other) Oklahoma City bomber,announced a hunger strike back in February to demand more healthful food. Last year the “shoe bomber” Richard Reid was reportedly on a hunger strike in 2009. In Texas, immigration detainees have been hunger striking since January, protesting conditions at the Port Isabel Detention Center. Although the legal issues are technically distinct, force-feeding was also an issue for Guantanamo Bay detainees.