Saturday, October 1, 2011

May the State Force Feed Hunger Strikers?

The CDCR memos did not provide a clear answer as to whether the authorities will seek a court order to force-feed striking inmates should the strike last long enough to jeopardize their health. During the July strike

I got to think about this a bit this week when I got a phone call from a reporter from the Examiner, resulting in this story. The man in question is not taking part in the Pelican Bay solidarity hunger strike, and apparently this is the last in a long series of hunger strikes he has undetaken individually. I am unclear on the extent to which hospital personnel felt comfortable force-feeding him, but apparently the sheriff is seeking a court order to do so.

Apparently, there is no clear answer as to whether, legally, hospital personnel may force-feed a hunger-striking inmate, and under which conditions. This has come up in the context of a large-scale hunger strike in Ireland in 1981, and later in the context of Guantanamo in 2005. A 2007 note by Tracey Ohm provides a concise summary of the law in the matter. In the early 1980s, the courts had ruled that the state had no right to intervene with a hunger-striking inmate, and it could allow him/her to starve him/herself to death; however, just a few years later the court tried to draw a distinction between a strike aimed at death and a strike aimed at a manipulation of the correctional system, with a right to intervene in the latter. Ohm suggests that correctional institutions adopt a four-part standardized test, based on the principles in Turner v. Safley (1987):
  1. A "valid, rational connection" between the prison regulation and the legitimate governmental interest put forward to justify it;
  2. the existence of "alternative means of exercising the right that remain open to prison inmates";
  3. the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and
  4. the absence of ready alternatives is evidence of the reasonableness of a prison regulation. 
Cases decided after the publication of Ohm's note, such as this Connecticut decision, this Illinois decision, and this Pennsylvania decision (also see this summary) have tended to allow prison authorities to force-feed inmates when there was imminent danger to their health or life. All decisions emphasize the need to grant a court order on a case-by-case basis. There doesn't seem to be any California case law on the matter. This case may be the first time such an issue is tackled by California courts, and it's worth following up not only because of the fate of the individual defendant, but because of the possible implications for Pelican Bay strikers and their supporters in other institutions.

1 comment:

Julie Tackett said...

As the emergency contact of a Short Corridor (PBSP) hunger striker (Bryan), I have firm marching orders from the July hunger strike...should I get a call from CDCR requesting permission to force feed or provide any medical care in defiance of the Advance Directive (DNR) that the CDCR had my friend fill out, my answer is to be NO.

It is his opinion that once any inmate has reached a point of diminished capacity the CDCR will call the family requesting permission. And many families I have spoken with will be giving their consent. At his request,I will not.

My question is this, if CDCR defies his wishes and also defies my right to reject these measures, have they opened themselves up to a lawsuit? My guess is yes. And if so, what will happen when dozens/hundreds of families whose hunger strikers are being force-fed all file lawsuits?

In WA state, it has been financial threats to state coffers due to legitimate legal action that resulted in some of the most sweeping reforms in WA DOC.

Would this work with regard to the issues at hand in California?