FORCE-FEEDING PRETRIAL DETAINEES: A CONSTITUTIONAL VIOLATION.

AuthorClegg, Bryn L.

TABLE OF CONTENTS INTRODUCTION 685 I. HISTORY AND BACKGROUND 687 A. Development of a Fundamental Right 687 B. Hunger Strikes and the Practice of Force-Feeding 690 C. Constitutional Rights Within the Prison System 693 1. Courts Have Applied Rationality Standard of Review 694 2. Legal Distinctions Between Prisoners and Pretrial Detainees 695 II. ADOPTING A HEIGHTENED STANDARD OF SCRUTINY FOR INFRINGEMENTS UPON A PRETRIAL DETAINEE'S FUNDAMENTAL RIGHT NOT TO BE FORCE-FED 699 A. Force-Feeding Constitutes a Shocking Invasion of Pretrial Detainees' Fundamental Rights 699 B. The Government Should Be Required to Provide More Proof of Its Interests in Force-Feeding Under a Heightenecd Scrutiny Standard 702 1. Little Evidence Suggests that Force-Feeding Prevents Riots and Copycats 704 2. The Availability of Bond as an Alternative to Confinement Undermines the Government's Interest in Force-Feeding Detainees 706 3. Government Interest in Preserving a Detainee's Life to Trial 709 III. FORCE-FEEDING AS PUNISHMENT 711 A. Force-Feeding Meets Traditional Punishment Objectives, Displaying Government's Punitive Intent 711 1. Deterrence 712 2. Finding of Scienter 715 B. Excessive Nature of the Government Response Indicates that Force-Feeding Constitutes Punishment 717 C. Court Hearings as Adjudication 720 CONCLUSION 722 INTRODUCTION

On August 22, 2019, a federal judge granted United States Immigration and Customs Enforcement's (ICE) request for an Emergency Temporary Restraining Order to force-feed Evgenii Ivanov, a Russian detainee who had refused food for more than two weeks. (1) ICE did not disclose Ivanov's reasons for striking. (2) Instead, ICE proffered various reasons that Ivanov's hunger strike might result in serious injury and death, stating that the Government's interests "clearly outweigh whatever interest [Ivanov] has in pursuing a hunger strike." (3) After performing a cursory balancing test of Ivanov's rights, the court held that ICE was likely to succeed in proving this. (4)

Ivanov is one of many pretrial detainees who has gone on hunger strike only to find that the government response is force-feeding. A demonstration in El Paso, Texas, drew massive public pressure after ICE employees engaged in force-feeding detainees. (5) The Associated Press reported that the detainees in El Paso were experiencing nosebleeds and frequent vomiting as a result of the force-feeding. (6) During one hearing, an ICE doctor testified that the process was widely viewed as medically unethical and that "[t]here wouldn't be anyone in a hospital who would do it." (7) She then said ICE regulations required the practice. (8)

Furthermore, hunger strikes are on the rise. Between January and March of 2019, at least six hunger strikes were initiated at detention centers, which represents an unprecedented increase in frequency. (9) As most strikes were initiated because detainees were denied bond, (10) increasing bond denials in immigration cases may exacerbate the problem. (11)

ICE's response here is predictable--requesting a court order to force-feed. (12) However, whether a judge issues such an order should rely upon a nuanced balancing test acknowledging not only the detainee's constitutional right to refuse lifesaving hydration and nutrition, but also the individual's unique status as a pretrial detainee. Instead, pretrial detainees have been analyzed like convicted prisoners. (13) Although this is particularly relevant in the immigration detainment context, this argument is equally relevant for any pretrial detainee.

This Note argues that the status of all pretrial detainees (whether detained pretrial or for immigration purposes) cannot be ignored in this balancing framework. This status should afford detainees heightened scrutiny, not the bare rationality review that is ordinarily applied to convicted prisoners. Such heightened review would protect the detainees' due process rights--such as the fundamental right to die and the detainee's right not to be punished--while still affording jails and prisons the latitude to address real security threats. Part I will provide background regarding a person's fundamental right to refuse lifesaving hydration and nutrition, the history of force-feeding, the treatment of fundamental rights within prisons, and the distinctions between pretrial detainees and prisoners. Part II will argue for a heightened standard of review for the fundamental right when applied to pretrial detainees. Part III will argue that force-feeding punishes detainees in violation of their right not to be punished prior to adjudication of guilt. Under these arguments, force-feeding pretrial detainees is unconstitutional.

  1. HISTORY AND BACKGROUND

    Colloquially referred to as the "right to die," individuals have the right to exert control over their own medical care when they have become incapacitated. (14) Studying the origin of this right--as well as the history of constitutional rights and hunger striking within prisons--lays the foundation for understanding why force-feeding pretrial detainees is problematic.

    1. Development of a Fundamental Right

      In Cruzan v. Director, Missouri Department of Health, (15) and Washington v. Glucksberg, (16) the Supreme Court addressed the constitutional parameters of an individual's right to act in a way that will cause death. (17) The Supreme Court rooted this right in the Fourteenth Amendment's substantive due process guarantees. (18) Both Cruzan and Glucksberg follow a trend of using due process to protect unenumerated fundamental rights. (19) These rights are found in the "traditions and conscience of our people." (20) In order to find the existence of the right, therefore, the Court had to find that there was a traditional right worth protecting and that it could be articulated. (21)

      Because substantive due process was used to protect unenumerated rights, the road to protecting the right to die started much earlier than Cruzan. Although each aspect of the right to die debate (22) has its own history and justifications, (23) the right for an individual to refuse medical treatment arises out of the common law doctrine of battery. (24) The tort of battery itself is rooted in the plaintiff's dignitary interests and personal autonomy, (25) and prior to the Court's holding in Cruzan, lower courts analyzed prisoner starvation cases under similar rationales. (26) Force-feeding policies trace back to 1909, (27) but there were no reported decisions regarding prisoner's rights until 1982. (28) However, the strongest arguments regarding a prisoner's right to die came after Cruzan. (29)

      In Cruzan, the Supreme Court did not explicitly hold that a fundamental right to refuse lifesaving medical treatment existed. Instead, the Court "assume[d] that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." (30) Nancy Cruzan was not competent." After a car accident left Cruzan in a permanent vegetative state, (32) her parents requested the hospital cease providing her with artificial hydration and nutrition. (33) While Missouri recognized that a surrogate could choose to withdraw lifesaving hydration and nutrition, the state had established safeguards to ensure that such withdrawal conformed with the patient's wishes. (34) The Supreme Court held that such safeguards did not violate the U.S. Constitution. (35)

      Although Nancy Cruzan's parents did not obtain a court order granting the termination of medical treatment, (36) the Court confirmed that "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment." (37) Thus, one can infer such a right from the Court's other cases. (38) The dissent in Cruzan argued that this acknowledgment did not reach far enough, emphasizing that self-autonomy rationales meant the right was fundamental (39) (a holding the Court would not reach until Glucksberg). (40) Severe consequences never vitiate fundamental rights:

      It is "a well-established rule of general law... that it is the patient, not the physician, who ultimately decides if treatment--any treatment--is to be given at all.... The rule has never been qualified in its application by either the nature or purpose of the treatment, or the gravity of the consequences of acceding to or foregoing it." (41) Traditionally, therefore, surrounding circumstances could not curtail the patient's ability to refuse medical treatment.

      The Court articulated the standard more readily in Glucksberg. After examining a Washington statute prohibiting physician-assisted suicide, the Court held that the act of refusing medical treatment and that of committing assisted suicide were distinct. (42) In explaining how, the Court stated that "[t]he right assumed in Cruzan... was not simply deduced from abstract concepts of personal autonomy.... [O]ur assumption was entirely consistent with this Nation's history and constitutional traditions." (43) As Glucksberg reinforced, Cruzan therefore established a broad substantive due process right to refuse unwanted medical care, specifically lifesaving hydration and nutrition.

    2. Hunger Strikes and the Practice of Force-Feeding

      One of the most common reasons a person might refuse food and water is participation in a hunger strike. (44) Hunger striking has long been used to protest perceived injustices, (45) perhaps beginning as far back as the ancient Celts, when people wronged by the wealthy would fast on their doorsteps in order to shame them. (46) In more modern times, political actors (such as the suffragettes) have utilized hunger strikes. (47) The hunger strike at Guantanamo Bay, which has been the source of much continued controversy, included up to 106 detainees. (48) Pretrial detainees are now using hunger strikes to protest their immigration detainment. (49)

      But what is a hunger strike? "Colloquial definitions" focus on two aspects: (1) refusal of food and...

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