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.