“In the absence of the governmental checks and balances… the only effective restraint upon executive policy and power… may be in an enlightened citizenry—in an informed and critical public opinion which alone can…protect the values of democratic government.”- Justice White and Stewart in New York Times Co. v. United States, 403 U.S. 713, 728 (1971)
On February 14, 2019, after organized pressure from community members, lawyers, and under orders of a U.S. district judge, U.S. Immigration and Customs Enforcement (ICE) stopped force-feeding nine detainees from India who were caged (in “la hieleras”) in El Paso and on hunger strikes. This came as more and more people held in immigration prisons joined the national hunger strike to protest and demand changes to the long-standing abusive and tortious conditions in detention centers (which even ICE has recognized exist). This was not the first time people caged by ICE were force-fed in an attempt to end their protest. In August 2018, people caged in ICE prisons across the country joined the national prison strike. As more people are caged in immigration prisons, we are likely to see more hunger strikes, raising questions about the legal and social movement strategies and constitutional arguments that advocates may use to end the immoral and inhuman tortious state practice of force-feeding. This piece seeks to provide some guidance.
Hunger Strikes and State Response
The use of the hunger strikes as non-violent political speech to bring about change stems back generations, from imprisoned suffragettes in 1909, to Gandhi’s 1930 hunger strikes, to Palestinian prisoners in Israel, and, recently, to the 2018 National Prisoners’ Strike calling for “immediate improvements to the conditions of prisons” and “an immediate end to prison slavery.” The U.S. response has been uniform: isolate, restrain, and force-feed the hunger striker to force them to end their non-violent protest. Notably, under the Obama Administration, people labelled by the state as “suspected terrorists” were subjected to tortious conditions and force-fed in Guantánamo Bay― a practice also used by the Bush administration. This prompted a U.S. district court to require the Obama Administration to release videotapes of the force-feeding under First Amendment grounds. Also, a 2014 Senate Investigatory report disclosed the CIA’s post-9/11 military’s program of torture and chronicled the agency’s lies to Congress, the White House, the media, and the public.
Recently, the UN announced that the United States could be violating the U.N. Convention Against Torture by force-feeding immigrant detainees on a hunger strike. The United Nations does provide “principles” that individuals in detention are entitled to a standard of medical care equivalent to that available in the general community, without discrimination based on their legal status. However, it is unlikely that the U.S government will be held accountable or be checked by the U.N because the U.S holds disproportionate power in the U.N, recently withdrew from the Human Rights council, and is a key actor in funding torture tactics and equipment internationally.
While there is some regulation of force-feeding in prisons, they are not applicable to immigration prisons (especially for-profit prisons). Rather there are a set of non-binding standards for immigration prisons and they address issues such as access to attorneys and conditions of detention. ICE has performance-based detention standards but they are also not legally binding. Specifically, Section 4.2 details the procedures for how to deal with hunger strikers. First, prison staff are required to immediately isolate and segregate hunger strikers from the general population and provide them with mental health and medical services. Then, medical staff “may recommend involuntary treatment when clinical assessment and laboratory results indicate the detainee’s weakening condition threatens the life or long-term health of the detainee.” If the detainee refuses involuntary treatment, ICE may “involuntarily feed the detainee if the hunger strike continues.” If the hunger striker refuses, ICE, in consultation with the ICE Chief Counsel and the U.S. Attorney’s Office, may pursue a court order to obtain authorization for involuntary medical treatment. Finally, “if a court determines that it does not have jurisdiction to issue such an order, or a hospital refuses to administer involuntary sustenance pursuant to a court order, ICE may consider other action if the hunger strike continues.”
Constitutional Arguments to End State Sanctioned Torture
In the February 14th case in El Paso, attorneys for hunger strikers intervened to obtain a court order to stop all involuntary treatment (i.e. force-feeding). In this case, the U.S. district court held that ICE detainees have a First Amendment right to protest (i.e. go on hunger strike) but also asked whether there were other ways that the detainees could protest. DHS was temporarily ordered to stop force feeding the hunger strikers.
Yet, a detainees’ constitutional arguments are limited, or sometimes even barred. Generally, the courts balance the rights, liberties, and personal dignity of the individual with the obligation of the state to provide medical treatment and to preserve the life of those in its custody while in prison. While the Court has generally given deference to prison officials to force-feed people, medical, human rights, and military groups have argued that such practices are a violation of a person’s free speech rights, bodily autonomy, and constitute a form of inhuman, immoral, and degrading treatment. There are several legal issues to consider when seeking a court order to stop force-feeding.
First, can federal courts intervene on issues of force-feeding in immigration detention centers? It is not clear because unlike U.S. prisons, there are no federal laws that regulate conditions in immigration prisons. Federal courts have limited power to intervene on behalf of the ICE detainees for two reasons. First, despite scholars, organizers, and detainees arguing that immigration detention (i.e. caging) is a form of punishment, the Supreme Court, since Wong Wing v. United States (1896), has not considered immigrant detention as punishment and thus has consistently held that the “Constitution does not apply to the conditions of immigrant detention.” Although the Court in Padilla v. Kentucky (2010) held that, as a matter of federal law, immigration detention (i.e. caging) was a type of penalty, the Court did not go as far to say that due process protections attach. Second, while the courts can authorize interventions, such as force-feeding, requested by the government, immigrant detainees have limited power to appeal and due process rights in order to contest the conditions of their detention.
Second, if federal courts can intervene, is there an argument for Eighth Amendment protection against cruel and unusual punishment? Not likely. In Fuentes v. Wagner (2000), the Third Circuit held, as did other circuits, that the use of restraint chairs (also used in ICE force-feeding) does not constitute a violation of the Eighth Amendment against cruel and unusual punishment because administrators “are acting out of a need to preserve the life of the Petitioners rather than letting them die.” Regarding Guantanamo Bay, the Supreme Court held in Mohammed v. Obama (2009), that it did not have jurisdiction and could not grant petitioners an injunction to stop force-feeding based on the Military Commissions Act of 2006 (related to the first issue above). Moreover, the Court went on to find that even if it did have jurisdiction over the matter, the petitioners would not be likely to show that they were treated with “deliberate indifference.” Petitioners have to show that “[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” And the Court gave deference to prison officials when evaluating their decisions to force-feed inmates. Specifically, the Court has held that force-feeding, which “impinges on inmates’ constitutional rights,” may still be valid if “it is reasonably related to legitimate penological interests.”
Third, are there a First Amendment protections? As was recently argued in the U.S. district court, ICE detainees have a First Amendment right to speech, protest (i.e. go on hunger strike), and privacy and force-feeding violates these rights. However, courts have grappled with the extent of these rights. In Zant v Prevatte (1982) and Thor v Superior Court (1993), the Court upheld such claims by allowing hunger-striking prisoners to continue fasting. However, in determining whether violating a prisoner’s first amendment rights is constitutional, the Supreme Court considers whether the prisoner could exercise this right by “alternative means.” Accordingly, the Court found in Pell v. Procunier (1974) that if the hunger striker can express their protest in other ways (i.e. letter writing), then the hunger striker is not protected from force-feeding or state sanctioned violations of their privacy to keep them alive. However, there is no bright-line rule, and various courts have found in favor of the state’s interests to force-feed while others have found in favor of the hunger strikers. In all, it seems that the First Amendment freedom of speech clause protects a prisoner’s hunger strike, and thus, force-feeding a prisoner would violate their constitutional right to privacy.
The strongest argument may be that the detainees are invoking their right to privacy via their hunger strike. According to Roe v. Wade (1973), the right of privacy is a fundamental right and may it may not be abrogated unless the government shows a compelling interest. Force-feeding, which is done by forcing greased tubes down the throat into the stomach, unquestionably violates bodily integrity━ which is central to the right to privacy (i.e. the right to be let alone from government interference). The Supreme Court has declared the right to bodily integrity as a basic liberty in society. Accordingly, Government conduct which violates an individual’s basic liberty to privacy and bodily autonomy, without due process, is conduct that “shocks the conscience.” Notably, the Supreme Court has limited this basic right to the point where the hunger striker is on the verge of committing suicide. However, the right to privacy and bodily autonomy exists independently of the right to commit suicide and separate from the government’s interests for violating an individual’s right to privacy. Therefore, rather than make the claim that the government does not have an interest to intervene to prevent the hunger striker from preventing suicide, a court should determine whether the government has the right to intrude upon the bodily integrity of the prisoner. If a court finds that the government does have an interest in intervening, it can then find that it cannot do so in such a repugnant manner that “shocks the conscience” of the Constitution. Therefore, because force-feeding is conduct that “shocks the conscience” and violates a person’s fundamental right to privacy and bodily integrity, the state will have a difficult time demonstrating a compelling interest to overcome that fundamental, constitutional right.
Community Organizing to End Force-Feeding
In the end, as was demonstrated in the recent court orders, the most effective mechanism to stop the state-sanctioned torture of force-feeding is movement lawyering in support of grassroots organizing. In El Paso, organizers, which included family members of the detainees, stood outside the ICE prisons (“la hieleras”) and chanted “‘Free El Paso Nine’” with red and white kites painted with forks fashioned to look like prison bars being grasped by human hands, a symbol, organizers said, of people being force-fed.” As more ICE detainees across the country join the hunger strike, organizers and lawyers across the country can look to the community-led actions (often under the banner of #AbolishICE) in Boston, El Paso, and California as effective tactics to draw media attention, support attorneys, amplify the demands of people held in la hieleras, and bolster critical public opinion to end state-sanctioned torture. As long as the U.S. maintains this racist system of torture, organizing within and outside of prisons will not stop. It will only grow stronger until State legislatures and Congress abolish state sanctioned torture in the form of force-feeding as well as abolish the practice of human caging (i.e. prisons). This includes challenging all elite capitalist, including universities like Harvard as well as banks, who are deeply invested in preserving the for-profit human caging machine. Community organizers are increasingly recognizing, the struggle to abolish prisons is inextricably linked to the struggle for black and brown immigrant liberation. Lawyers must support these efforts.
 Hunger Strikes, Inmate, 28 C.F.R. §§ 549.60-.66 (1982). These sections provide guidelines promulgated by the Bureau of Prisons regarding the medical care and administrative procedures relating to inmates who hunger strike. The Bureau of Prisons is responsible for the health and welfare of federal inmates. Id. § 549.60.
See State ex rel. White v Narick, 292 SE 2d 54 (W. Va 1982), Von Holden v Chapman, 87 A.D. 2d 66, 450 N.Y.S. 2d 623 (1982); In re Sanchez, 577 F. Supp.7 (S.D.N.Y. 1983), In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984).