Testing Cruzan: prisoners and the constitutional question of self-starvation.

• Author: Silver, Mara

INTRODUCTION I. HUNGER STRIKES IN THE UNITED STATES AND ABROAD: THE INTERNATIONAL PREVALENCE OF PRISONER FASTING II. METHODS OF FORCE-FEEDING: PROCEDURE AND PRACTICE III. FOUNDATIONS OF PRIVACY: THE SUPREME COURT AND THE CONSTITUTIONALITY OF THE RIGHT TO STARVE A. The Right To Be Free from Force-Feeding: Cruzan and Glucksberg B. The Implications of Prisoner Status on the "Right To Starve": Turner v. Safley IV. STATE INTERESTS IN FORCE-FEEDING PRISON INMATES A. The Preservation of Life and the Prevention of Suicide B. Effective Prison Administration C. The Ethical Integrity of the Medical Profession D. Fear of Manipulation of the Prison System V. THREE STAND ALONE, SORT OF: COURTS RECOGNIZING A PRISONER'S RIGHT TO REFUSE UNWANTED MEDICAL TREATMENT A. Zant, Thor, and Singletary B. Limitations on the Right Recognized CONCLUSION INTRODUCTION

In 1982, a New York court ordered the force-feeding of a prisoner who was attempting starvation to draw attention to the hungry children of the world. (1) Two years later, the Supreme Court of New Hampshire held that, despite inflicting great pain and discomfort, prison officials could continue to feed an inmate with a nasogastric tube. (2) In 1995, the Supreme Court of North Dakota determined that a sixty-four-year-old diabetic prisoner protesting the conditions of his confinement could be forced to undergo treatment after a hunger strike. (3) Soon after, the Second Circuit allowed the unwanted feeding of a civil contemnor in custody for refusing to testify before a grand jury. (4) In all, nearly fifteen state and federal courts have found that prison officials may force-feed a hunger-striking prisoner through highly invasive means.

Hunger strikes have become increasingly common in prisons across the United States and throughout the world. The practice represents one of few ways that inmates can protest the conditions of their incarceration or express political viewpoints. Fasting can also be the only plausible way for a prisoner to intentionally bring about his or her own death. Even so, from Massachusetts to Illinois to North Dakota, nearly every court that has addressed the issue has declined to recognize a prisoner's right to refuse invasive medical treatment--notwithstanding the grave health and safety risks involved. No federal court has ever recognized a prisoner's right to hunger strike, and the Federal Bureau of Prisons has even created detailed guidelines delineating the process for force-feeding inmates.

This state of affairs persists despite the Supreme Court's holdings in Cruzan v. Director, Missouri Department of Health (5) and Washington v. Glucksberg (6) that individuals necessarily possess a fundamental right to refuse lifesaving medical treatment. This Note argues that force-feeding a competent inmate necessarily violates that inmate's fundamental privacy rights, as established by Cruzan and reiterated in Glucksberg. Part I illustrates the prevalence of prison hunger strikes in the United States and abroad. While this Note addresses primarily United States law, an international context helps to demonstrate the frequency with which hunger strikes occur. Part II briefly explains the typical process of force-feeding and the related pain and health risks. This explanation is critical to understanding the extent of the physical intrusion involved, and therefore the extent of an inmate's liberty interest in avoiding involuntary treatment. Part III outlines Supreme Court jurisprudence establishing a right to refuse unwanted palliative care. Cruzan and Glucksberg create a substantive due process framework that emphasizes individual autonomy over involuntary treatment. No court that has sanctioned force-feeding has ever fully explained why hunger striking should fall outside this clear precedent. Nor has any court demonstrated that the practice serves "legitimate penological interests" and passes muster under Turner v. Safley. (7) Part IV analyzes governments' countervailing interests in force-feeding prison inmates. Case law requires that adequate interests be averred to justify the intrusions posed by force-feeding. The governmental interests generally asserted--including the preservation of life and effective prison administration--prove to be ill-articulated and unsatisfactory. Part V considers the few cases in which courts have recognized a prisoner's right to refuse treatment and explains why even those holdings may be limited.

1. HUNGER STRIKES IN THE UNITED STATES AND ABROAD: THE INTERNATIONAL PREVALENCE OF PRISONER FASTING

   Hunger strikes by prisoners are by no means a purely modern form of protest. The practice has persisted for hundreds of years. For example, hunger strikes were waged by the Fenians in the nineteenth century. (8) Since then, these strikes have occurred in prisons across the world. Varying in length, consequence, and severity, they are hardly rare today.

   The United States has seen its share of well-publicized hunger strikes. For example, five such strikes have been waged by detainees held by the United States in Guantanamo Bay, Cuba. (9) In 2005, for instance, more than a quarter of approximately 500 detainees fasted to protest the conditions and length of their confinement. Twenty were tube-fed. (10) The details were disturbing and included accounts that military medics were forcing "finger-thick" tubes into prisoners' noses without painkillers. (11) According to lawyers for the detainees, the medics were also recycling "dirty feeding tubes used on other prisoners." (12) In 2002, nearly 200 detainees refused meals in a rolling hunger strike that was triggered after a guard removed a turban from a praying inmate. (13) That same year, two others who refused food for a month--stating that "they wanted to go home"--were force-fed through stomach tubes. (14)

   Smaller-scale strikes have occurred throughout the country. In 2004, a Sikh priest from India starved himself to death in a California state prison without officials recognizing that he was on strike at all. (15) A Maryland prisoner convicted of burglary refused to eat solid food in protest of his lengthy sentence. The prisoner, Warren R. Stevenson, was rendered unconscious after his body weight dropped to 107 pounds. He was force-fed through a nasogastric tube. (16) Stevenson's forced treatment occurred just after a prisoner convicted of murder in Arizona died from a hunger strike while demanding access to a religious diet. Teshone Abate was also force-fed, but died after repeatedly pulling out his own feeding tubes. He weighed only seventy-five pounds at the time of his death. (17) Even Jack Kevorkian continuously threatened to starve himself to death in prison, though he later recanted his threats. (18)

   Accounts from abroad provide further illustration. During the summer of 2004, nearly 3000 Palestinian inmates from several prisons initiated a hunger strike, demanding better conditions in Israeli jails. They drafted an exhaustive list of 149 demands, ranging from an end to strip searches to more family visits. Israel's Public Security Minister, Tzachi Hanegbi, announced that the prisoners could starve themselves to death--the government simply would not yield to demands. (19) This was not the first time Israel had witnessed such an event. Eight years earlier, prisoner Uzi Meshulam and his followers waged a similar hunger strike. A High Court justice finally issued an order to force-feed one member of the group, though the inmate ultimately decided to end the protest. (20)

   Turkey has witnessed several waves of severe hunger strikes. In 2001, controversial, nationwide prison reforms sparked strikes that lasted for months. In Istanbul alone, more than twenty individuals died protesting the transfer of hundreds of prisoners to single-cell prisons. (21) By 2002, the death toll of those protesting prison conditions had risen to more than forty-five. (22) Several years earlier, more than 1900 Turkish inmates in thirty-three prisons participated in a similar hunger strike. Several prisoners died of starvation while demanding access to legal defense, medical treatment, and an end to in-prison torture. (23)

   Perhaps the most publicized prison hunger strikes were those that occurred more than twenty years ago in a Northern Ireland prison. On March 1, 1981, Irish Republican Army (IRA) prisoner Bobby Sands initiated a now-famous, seven-month hunger strike. Sands and his followers demanded that the British government officially recognize them as "prisoners of war" rather than "criminals." (24) The prisoners succeeded with some of the demands that they made--they were allowed to wear their own clothes and were no longer required to work in the prison. However, the strikers were never able to regain their desired political status. (25) Ten prisoners, including Sands, eventually starved to death in protest. (26)

   Unlike the United States, Great Britain has officially recognized a prisoner's legal right to starve. In 1994, the High Court of Justice's Family Division announced a landmark ruling that, so long as a prisoner can demonstrate sanity, he is free to refuse food and sustenance. (27) The right recognized has been tested with human life. For example, in 2001, Barry Home, a "dedicated animal rights terrorist," starved himself to death in the name of animal rights after he firebombed facilities associated with animal products. Because he was declared sane, the prison that held him had no choice but to abide by his refusal to eat. (28) Not every case has been so dramatic: In 1996, Gary Bland died following a ninety-eight-day hunger strike. (29) He was the longest survivor of a prison hunger strike and the first to starve himself in a British prison for nonpolitical reasons. (30)

   The prevalence and severity of hunger strikes during the past few decades demonstrate the importance of formulating a clear jurisprudence on the matter--the result literally would signify the difference between...