Prison Inmates’ Right to Hunger Strike

Abstract

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.

The Right to Hunger Strike

“…Sympathetic observers and human rights advocates often paint the hunger strike as a desperate cry from voiceless people. Understanding the hunger strike as symbolic speech, legal scholars (Sneed and Stonecipher 1989; Kanaboshi 2014; Silver 2010) have appealed to the constitutional right to free speech—a widely accepted, fundamental right of liberal societies—to ground the right to hunger strike. In this view, coercive interferences with hunger strikes are wrong because they silence the hunger striker.…”

“…While restrictions on First Amendment rights are normally reviewed through strict scrutiny, the Supreme Court ruled in the 1987 case of Turner v. Safley that a rational basis standard of review was sufficient with respect to incarcerated persons’ constitutional rights and that judges should show deference to prison officials in the management of their institutions. Kanaboshi (2014, 128) argues instead that a heightened scrutiny test should apply to restrictions on incarcerated persons’ free speech. Prisons’ bans on hunger strikes would then not pass constitutional muster, as they are not “neutral” but purport to “suppress the message itself”: they function to censor dissent.…”

“…Second, it conceives of the hunger strike as merely symbolic speech. Kanaboshi (2014, 128) contends that “hunger strikes are passive, peaceful acts, which are unlikely to provoke violence or some other security breach” and that the burden to prove that hunger strikes pose a threat should fall on authorities. Vicaro’s (2015) conception of hunger strike as a type of “embodied argumentation,” “a means of persuasion,” and “a human cry and a plea” fits well with the constitutional argument.…”

“…Sympathetic observers and human rights advocates often paint the hunger strike as a desperate cry from voiceless people. Understanding the hunger strike as symbolic speech, legal scholars (Sneed and Stonecipher 1989;Kanaboshi 2014;Silver 2010) American federal courts have held since the 1930s that the First Amendment protects symbolic speechthat is, an activity that is essentially communicative in character. The Supreme Court established in Spence v. Washington (1974) a two-part test to determine when conduct becomes symbolic speech and thus falls under the First Amendment protection: (1) "[a]n intent to convey a particularized message must be present" and (2) "in the surrounding circumstances the likelihood must be great that the message would be understood by those who viewed it."…”

“…On Sneed and Stonecipher's (1989) account, the hunger strike is a kind of "speech-plus" conduct consisting of both expression and action, like sit-ins and flag desecration. Kanaboshi (2014) also derives the right to hunger strike from First Amendment rights. This approach is promising, both in the domestic and international contexts.…”