Prison Inmates’ Right to Hunger Strike

Published date01 June 2014
Date01 June 2014
Subject MatterArticles
Prison Inmates’ Right to
Hunger Strike: Its Use
and Its Limits Under the
U.S. Constitution
Naoki Kanaboshi
Hunger strikes have long been used as a means of protest, as a last resort, especially by those in
prison. Recently, government officials have responded to hunger strikes with force-feeding, an
approach that has generated considerable international attention. The purpose of this article is to
analyze the nature and the scope of the right to hunger strike in prisons in the United States under
both the First Amendment and the Due Process Clause, and to provide a policy recommendation
for prison administrators based on a review of case law. This article stresses the nature of hunger
strikes as symbolic speech protected by the First Amendment, an analysis that has yet to be
extensively discussed by either criminal justice or law scholars. This article argues that retaliatory
force-feeding or punishment of hunger strikers generally violates the First Amendment, regardless
of the prison officials’ professed justification. This article further argues that, given the inherently
peaceful nature of hunger strikes, force-feeding for the supposed purpose of prison safety may lack
a reasonable basis and therefore may well violate the inmates’ right to refuse medical treatment.
Hunger strike policy recommendations are also provided.
courts/law, legal issues, institutional corrections, corrections
A hunger strike, though controversial, comprises one of the most effective methods of protest used
by inmates in prisons across the world. Although not limited to inmates, hunger strikes are often used
to focus attention on an issue, to force negotiations and to implement reforms (Scanlan, Stoll, &
Lumm, 2008). In the past two decades, inmates and detainees in various prisons in the United States
and in the detention camp in Guanta´namo Bay, Cuba, have staged hunger strikes to protest deplor-
able prison conditions, to highlight restrictive and harsh prison policies, and to call attention to
Grand Valley State University, Grand Rapids, MI, USA
Corresponding Author:
Naoki Kanaboshi, Grand Valley State University, 245C DeVos Center, 401 Fulton St. W, Grand Rapids, MI 49504, USA.
Criminal Justice Review
2014, Vol. 39(2) 121-139
ª2014 Georgia State University
Reprints and permission:
DOI: 10.1177/0734016814529964
various other issues. Most recently, inmates in Pelican Bay Prison in California held a hunger strike
to demand improvement of conditions of confinement (Dayan, 2011; Goode, 2011).
Recently, inmates’ hunger strikes and the decision to force-feed in Guanta´namo Bay have
received a considerable amount of international attention. An inmate filed a suit in the federal dis-
trict court, claiming force-feeding of hunger strikers in Guanta´namo was unconstitutional (Al-Adahi
v. Obama, 2009). This court held that it did not have preliminary jurisdiction, citing section 7 of
Military Commissions Act of 2006. But the court also made a substantive ruling, aside from the jur-
isdiction issue, that the government’s force-feeding policy did not violate the Eighth Amendment.
The government conceded in this case that the way to force-feed is ‘‘to strap a hunger-striking detai-
nee into a restraint-chair, with straps tightly restraining his arms, legs, chest, and forehead, and to
administer a nutritional formula via a feeding tube inserted through one nostril’’ (Al-Adahi, 2011,
p. 115. See also Schmitt & Golden, 2006). Aside from its constitutionality, some commentators sug-
gest that this practice violates Common Article 3 of Geneva Conventions (Annas, 2006, 2007;
Crosby, Apovian, & Grodin, 2007), which was held applicable to Guanta´namo detainees (Hamdan
v. Rumsfeld, 2006).
Recent hunger strikes by inmates and detainees in the United States have also occurred in Cali-
fornia, Connecticut, New York, Ohio, Texas, and Washington. In 2011, over 1,000 prison inmates in
California participated in a hunger strike to protest restrictive and harsh prison policies. The strikers
protested prolonged solitary confinement and conditions of such confinement (Dayan, 2011; Goode,
2011). Officials did not use force-feeding, but warned that a prisoner’s participation in hunger strike
would result in disciplinary actions (Goode, 2011). In Connecticut, a prisoner engaged in a pro-
longed hunger strike (Lantz v. Coleman, 2010). Also, immigrant detainees in New York staged a
hunger strike over jail conditions (Bernstein, 2010). In an Ohio hunger strike, the strike ended when
prison officials met some of the strikers’ demands for changing their visitation, recreation, and
phone policies (‘‘Hunger-striking inmates,’’ 2011). A number of inmates in Texas (Blumenthal,
2006) went on a hunger strike because of poor prison conditions in 2006.
Hunger strikes are, of course, not unique to the United States or limited to incarcerated persons.
The method has long been used as a way of protest. The historical origin of hunger strikes in the
Western world can be found in ancient Irish civil law, Senchus Mor. According to this law, when
a creditor demanded payment from a debtor who was of a chieftain rank, the creditor had to notify
him of the demand and fast in front of the door of the debtor. If the debtor refused to pay the debt in a
certain period of time, the creditor could collect twice the amount of the debt (Ginnell, 1894; Gor-
man, 1901).
Protests in a form of hunger strikes have been well known since the British Suffragettes’
well-known hunger strike in prison in the early 20th Century. Also Mohandas Gandhi’s hunger
strikes in a jail in 1932 in protest against British colonialism and his 1947 and 1948 strikes
demanding peace between Hindus and Muslims are well known (see Merriam, 1975, for the
list of Gandhi’s hunger strikes). One of the most notable hunger strikes in a prison outside
of the United States was the 1981 Irish hunger strike that resulted in the deaths of 10 inmates.
More recently in 2006 in Iraq, Saddam Hussein conducted a hunger strike but gave up after 19
days, due to the lack of popular support for his protest (Cave, 2006). In 2009, a Nobel Peace
Prize nominee, Aminatou Haidar, also engaged in a hunger strike at an airport in Lanzarote,
Spain. Her hunger strike was intended to protest Morocco’s refusal to recogniz e the indepen-
dence of West Sahara (Rice, 2009a). She was refused entry to her home country West Sahara
when she refused to write ‘‘Moroccan’’ as her nationality when returning from overseas. After
32 days, when she was admitted to hospital, Moroccans accepted her demands to enter Wes t
Sahara (Rice, 2009b). In 2010, an incarcerated human rights advocate conducted a hunger
strike in Cuba, demanding recognition as a prisoner of conscience and protestin g the require-
ment to wear a prisoner uniform. He died after 83 days (Nordlinger, 2010).
122 Criminal Justice Review 39(2)

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