Introduction
The United Nations report on the basic principles for the treatment of prisoners states that “all prisoners shall be treated with the respect due to their inherent dignity and value as human beings.”Footnote 1 Even those who doubt the coherence of the term and/or existence of “human dignity”Footnote 2 would find this statement uncontroversial. Unfortunately, this dictum is not adhered to in at least some prison environments, and cruel and degrading treatments do occur.Footnote 3
In this paper, we focus on two specific practices that we believe are incongruent with the dictum mentioned above: solitary confinement (SC) and force feeding (FF). The use of SC is established within the literature as a common occurrence of cruel and inhuman practice within the prison system, and many international and national human rights organizations have called for its abolishment.Footnote 4, Footnote 5 A somewhat more contentious topic in the literature is the practice of FF of hunger-striking prisoners. This paper aims to make a case against FF. We do this by establishing a parity argument that states the following: If SC is considered a cruel and inhuman practice, it should follow that FF is a cruel and inhuman practice as well. This argument will be established in two parts: first by reviewing the morally relevant factors of SC and FF and second through establishing a normative case against FF of prisoners.
Although FF has been discussed in the bioethics and medical literature, especially lately, SC has received little, if any, attention. However, we believe that both are a worthy and legitimate topic of interest for bioethicists, and, in fact, we urge that they ought to be areas of acute concern. Before proceeding, we pause to explain why SC and FF are bioethical issues.
Solitary Confinement and Force Feeding—Bioethical Issues?
The use of SC in prisons has been inadequately discussed in the bioethics literature. There may be two reasons for this. First, its moral impermissibility might seem so trivial as to prove intellectually unchallenging for the theoretical ethicist. Second, it may not seem a bioethical issue, as it does not include patients or medical professionals. We tend to agree with the first point but disagree with the second, as we argue below (see the “Accountability” section)—particularly if long-term SC often leads to cognitive impairment and mental illness, meaning that it creates patients and, as such, may be framed as a bioethical issue. Similarly, wars and violent conflicts do not immediately raise bioethical issues, unless they negatively affect public health and create patients. Only then do they become bioethical issues—and since they invariably adversely affect public and individual health, they indeed should be defined as bioethical issues.
Along the same lines, FF of prisoners is a bioethical issue for at least three reasons. First, it often, if not always, requires the participation of a medical professional, be it a medic, nurse, physician assistant, or physician.Footnote 6 Second, victims of FF often, if not always, suffer physical and psychological harm, consequently becoming patients. Third, it has been heavily discussed in the medical and bioethical literature in the past two decades.Footnote 7, Footnote 8, Footnote 9, Footnote 10, Footnote 11, Footnote 12
What Is Wrong About Solitary Confinement and Force Feeding?
SC is the practice of forced physical and social isolation of an individual, usually in the context of formal punitive institutions. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) identifies four common situations in which SC is commonly used: as a result of a court decision, as a disciplinary sanction, for preventive purposes, or for protective purposes.Footnote 13 For our discussion, the distinction between the latter two situations is of moral significance. SC that is used for preventive reasons is often used to prevent the individual from causing harm to themselves or others in the prison, whereas SC for protective purposes is used to prevent harm to the individual by others.
Scholars and international human rights organizations commonly concur that SC amounts to cruel, inhumane, or degrading treatment, thus constituting a violation of basic human rights.Footnote 14, Footnote 15, Footnote 16 The use of SC has been found to cause profound adverse mental health consequences, such as depression, perceptual distortions, paranoia, and psychosis, which often lead to increased self-harming and suicidal tendencies.Footnote 17 In 2016, former President Barack Obama spoke out against the use of SC, characterizing its use as “an affront to our common humanity.”Footnote 18
FF involves the use of force to feed a person against their will. It may be done through a nasogastric or orogastric tube, intravenously, or anally. The nasogastric tube is the most common approach in a prison context. The individual is usually strapped into a chair and restrained by personnel while the tube is passed through their nose, past the throat, and down into the stomach. Often throughout this process, the individual is pleading for the personnel to stop. Even when an individual does not resist and is being coached by healthcare professionals, being fed with a nasogastric tube is unquestionably degrading and uncomfortable.Footnote 19, Footnote 20
FF is often used in prisoners who embark on a hunger strike. Although several definitions of hunger strike exist, here we restrict our use of the term to scenarios in which a prisoner formally and publicly agrees to receive fluids and vitamins but not solid foods.Footnote 21 Prisoners use the refusal of food as a means of nonviolent protest against a specific treatment or policy.Footnote 22 These individuals are not suicidal nor can their decision be considered analogous to an imminently dying patient deciding to refuse food, as the aim of their action is not death. Hunger-striking is a method of expression for a population that is disenfranchised with State-imposed restrictions on their liberty.Footnote 23, Footnote 24, Footnote 25
This brief discussion of FF surely awakens intuitions among readers regarding the moral impermissibility of the practice. Indeed, it is commonly agreed among authors that FF is immoral in most, if not all, cases, and that medical professionals should not participate in FF.Footnote 26 The prisoners’ autonomy, (legal and ethical) right to refuse treatment, (legal and ethical) right to refuse food, and (legal) right to free expression are often used to articulate and defend such intuitions.Footnote 27, Footnote 28, Footnote 29, Footnote 30 Our strategy here is different. We aim to argue against FF by making a parity argument between FF and SC. Such an argument first requires a comparison between the two practices, highlighting the ethical factors that make them morally analogous. Next, a parity argument will allow the adoption of an authoritative set of criteria that has been used to ethically analyze SC and apply it to FF. By demonstrating that SC and FF invariably fail to fulfill these criteria, a parity argument will allow us to conclude that both SC and FF are immoral, and that if SC is deemed to be immoral, then FF is immoral to a larger extent. Below, we identify some of the main ethical factors that allow us to equate FF with SC (Table 1).
Relevant Ethical Factors Comparing FF with SC
Are Force Feeding and Solitary Confinement Morally Analogous?
The first part of our overall argument aims to examine whether FF and SC are analogous in morally relevant ways. We do so by focusing on four potential arguments that have been used, or may be used, against FF and SC: violation of moral autonomy, violation of bodily sovereignty, effects on mental health, and effects on physical health.
Other, perhaps more trivial, similarities exist as well; they are, in fact, necessary for our discussion here. In both cases, we assume the victim to be a prisonerFootnote 31 and that what Hernán Reyes et al. call “custodial authorities” are the ones responsible for the execution of either SC or FF.Footnote 32, Footnote 33 We also assume that the victim is cognitively competent enough to be able to make an autonomous decision that (s)he does not wish to be force fed or placed in SC.
Violation of Moral Autonomy
Moral autonomy requires unimpaired moral agency and understanding. It does not necessarily require the physical liberty to execute one’s wishes. Thus, prisoners may still be defined as morally autonomous. Liberty is a necessary condition for personal autonomy, and thus prisoners may be perceived as not having personal autonomy.Footnote 34 Here, we mostly focus on moral autonomy. However, moral and personal autonomy are clearly intertwined: Moral autonomy is a necessary condition for personal autonomy, whereas personal autonomy enables the execution of moral autonomy. A morally autonomous agent may resolve to donate money to charity. However, if the agent lacks the freedom to do so, for lack of freedom of movement for instance—then the agent cannot execute their inner decision.
SC restricts an individual’s personal autonomy even further than what occurs, as a result of the necessary conditions of imprisonment. By definition, SC is the forced separation of an individual from the general prison population and as a result violates the individual’s right to free movement, social association, and so forth, to a greater extent than normal non-solitary imprisonment. SC then negatively impacts an individual’s capacity to express that individual’s agency and therefore could be viewed as an indirect violation of her or his moral autonomy.
Admittedly though, the way in which SC restricts moral autonomy is contingent, meaning that it may or may not be descriptively accurate in individual cases. SC may directly restrict moral autonomy in some cases, but it is unlikely to inhibit moral autonomy in all cases. For example, SC may or may not indirectly affect a person’s moral autonomy; descriptively, prohibiting their free movement does not necessarily prevent a hunger strike. The specific prohibition would affect moral autonomy only insofar as the prohibited act is essential in enabling the exercise of moral autonomy, and not all prohibitions are such.
In addition, there seems to be a sense in which SC can only affect moral autonomy to a degree. Imagine that a prisoner in SC decides to only eat vegetarian food. The prison may provide him with a vegetarian meal, thus enabling their moral autonomy. The prison may also refuse to provide vegetarian options, thus hampering the prisoner’s moral autonomy. However, the prisoner may still decline to consume the nonvegetarian meals. Starvation would progressively affect the prisoner’s moral autonomy, but a complete loss would occur late, if at all (see below). The point here is that the violation of moral autonomy is progressive or gradual rather than immediate, and is partial, rather than total.Footnote 35
In the case of FF, the World Medical Association states that if an individual’s decision to hunger strike is rational, informed, and uncoerced, their wishes should be honored.Footnote 36 However, a person’s moral autonomy is not an absolute value that trumps all others. A highly controversial text by Michael Gross illustrates this:
“Autonomy is not sacrosanct. Persuasive moral arguments appeal to the sanctity of life to permit caregivers to override respect for autonomy when necessary to avert an easily preventable death from starvation. Respect for autonomy, moreover, conflicts with other important, nonmedical principles. Among military personnel, for example, autonomy, privacy, and the right to refuse certain treatments are limited and subordinate to security interests and the conditions necessary to maintain a fighting force.”Footnote 37
Gross defends FF as a means to save an individual’s life because the sanctity of life outweighs autonomy. Others have argued that the interests of the state outweigh the prisoner’s autonomy, thus making FF an act of self-defense.Footnote 38
Whatever the case might be, there is a morally significant difference between the assertion that FF violates (if it is unjustified) or infringes (if it is justified) moral autonomy, and the assertion that prisoners lack moral autonomy. Here, we focus on the former, whereas Zohar Lederman and Shmuel Lederman have argued against the latter, elsewhere.Footnote 39
FF then violates (or infringes) a prisoner’s moral autonomy, and we argue that the violation is indeed great. It is great because, unlike the contingent effect of SC on moral autonomy, FF entails the direct violation of moral autonomy. A person makes an autonomous decision to stop eating. This decision stems from an overarching decision to exercise their fundamental moral and/or legal right to refuse treatment, food, and to express themselves. It is a decision to make a bold political statement (at least in the cases discussed here), and to risk one’s life in so doing. It is a decision to potentially sacrifice oneself for a greater cause. FF directly and necessarily overturns such decision and thus prevents the person from exercising their moral autonomy.
Furthermore, FF wholly contradicts the moral agent’s decision. It is not a partial contradiction or compromise as in a situation where the moral agent decides to donate an X amount of money, but is only allowed to donate X/2 (see also the vegetarian example above). The prisoner decides to refrain from eating, but is being fed nonetheless; there are no degrees here. Since FF necessarily and wholly violates the prisoner’s moral autonomy, we consider it a grave violation.
Bodily Sovereignty
Bodily sovereignty is the prima facie right of governance a person holds over her or his own body.Footnote 40 This includes an individual’s right to determine when, what type, and under what conditions bodily invasions will occur. Violating an individual’s bodily sovereignty without consent is considered unethical and intrusive of their (legal and moral) rights.Footnote 41 The right to bodily sovereignty is often considered a fundamental ethical right.Footnote 42
SC does not pose a direct violation of bodily sovereignty, but rather severely restricts an individual’s control of their body. One argument put forward is that SC violates bodily sovereignty in that it affects an individual’s capacity for temporal ordering, such that an individual’s ability to differentiate between self and nonself becomes compromised.Footnote 43
FF, particularly in the form of nasogastric or orogastric tube, is obviously a profound affront to one’s bodily sovereignty. It strips someone of the most fundamental aspects of bodily sovereignty, such as the (legal and moral) right not to be violently harmed or the (moral) right to refuse foodstuff.
Mental Health Concerns
Prolonged use of SC in prisons causes significant mental harms that may persist long after release or can even be permanent.Footnote 44 Individuals placed in prolonged SC have profound and persistent anxiety, insomnia, and chronic fatigue.Footnote 45, Footnote 46 Individuals are also often reported as experiencing obsessive ruminations, oversensitivity to stimuli, irrational anger, hallucinations, and violent fantasies.Footnote 47 Research has found that brain activity of individuals placed in SC may change such that, over time, it becomes more difficult for them to separate their thoughts from reality. This situation may lead to confused thought processes, perceptual distortions, paranoia, and psychosis.Footnote 48 Lastly, individuals placed in SC for prolonged periods of time are found to be at increased risk of self-harm and suicide. Between 2010 and 2014, nearly half of all suicides that occurred in federal prisons took place in SC.Footnote 49
The profound health effects associated with SC are thought to be a result of the complete deprivation of stimulation and social interaction.Footnote 50 These consequences are compounded by the lack of control prisoners have over their daily life that is inherent with incarceration.Footnote 51
Not only does SC cause mental health concerns, but it may also worsen preexisting medical conditions.Footnote 52, Footnote 53 This is partially due to the fact that SC creates barriers to necessary medical and mental healthcare. As a result, it has been argued that individuals with preexisting medical or mental health conditions should be excluded from SC.Footnote 54
FF is clearly a source of psychological distress to prisoners. Victims of FF are likely to suffer from grave mental health consequences, including depression and posttraumatic stress disorder.Footnote 55
Physical Health Concerns
SC is known to be detrimental to an individual’s mental health, but it also has negative influence on physical health (beyond self-injury).Footnote 56 When confined, even after a short amount of time, individuals in SC often report symptoms of hypertension, such as headaches, as well as trembling, sweats, extreme dizziness, and heart palpitations.Footnote 57, Footnote 58 SC has also been found to impair diet and digestion.Footnote 59 Drastic weight loss often occurs that is usually accompanied by irregular digestion and severe diarrhea. As mentioned earlier, under psychological harm, individuals in SC have also reported insomnia, resulting in feelings of chronic lethargy. It is important to note that some of the physical harms of SC could be manifestations of psychological stress related to isolation. However, others may be effects caused directly by an individual’s physical state of confinement.
FF is physically harmful and may lead to lethal adverse effects; indeed, between 1970 and 1992, five Palestinian prisoners died in Israeli prisoners, reportedly as a consequence of being force fed.Footnote 60 If the tube is placed into the lung and goes undetected, it may cause aspiration as the lungs may be flooded with the feeding solution, leading to pulmonary edema, inflammatory response, and eventually death. Excessive force due to restraint can cause perforations of viscera and hemorrhaging. Other risks include the potential to cause lethal fluid and electrolyte imbalances, vitamin deficiencies, and overdistension of the stomach. Lastly, FF may lead to infections.Footnote 61, Footnote 62, Footnote 63 Several conditions pose contraindications for FF, including gastritis, ulcer, and diabetes.Footnote 64
Section Summary
As demonstrated in the discussion above, the potential mental and physical harms that occur as a result of FF and SC are significant. The practice of FF greatly violates an individual’s moral autonomy and bodily sovereignty. In comparison, SC arguably only minimally violates these values/rights.
When Are FF and SC Morally Permissible?
In their 21st general report, the CPT outlines five principles or criteria in order to critically evaluate whether SC is justified. These principles provide a framework to ensure that when SC is used, it is done so in an ethical fashion. We next apply these criteria to evaluate the moral permissibility of FF.
Proportionality
According to the CPT in order for SC to be justified, the potential harm that could occur to, or by, the prisoner must be at least as great as the potential harms for the prisoner associated with SC.Footnote 65 It is important to note that harm in this instance relates both to the nature of the physical or psychological harm and the moral harm caused by violating moral autonomy and bodily sovereignty. These harms require strong justification, and therefore, we submit, this criterion could rarely be satisfied.
Applying this criterion to FF means that the harm of not intervening must be greater than the mental and physical harms, as well as moral harm this practice causes to the prisoner. The former harm may relate to the individual prisoner, other prisoners, or the society at large. Indeed, as mentioned, one argument advanced for FF is that the sanctity of life outweighs all other values, including moral autonomy and bodily sovereignty.Footnote 66, Footnote 67, Footnote 68 Rather than engaging in a lengthy discussion here, one important point should be highlighted. Since FF is generally considered immoral, and the moral harms associated with FF require strong justification, the burden of proof lies on those who wish to conduct the FF (or at least, the argument for FF should be highly compelling). Such proof, however, is wanting.Footnote 69, Footnote 70 In terms of physical and psychological harms to the other prisoners or community, there is no empirical evidence to support this claim, and, in terms of moral harm, even the sanctity of life is not an absolute value, as it may be outweighed by other considerations such as the prisoner’s welfare.Footnote 71
Lawfulness
The CPT states that all countries should have reasonable previsions in their domestic law for the regulation of SC. The aim is to ensure that the conditions under which SC can be used are strictly restricted and strongly justified. Currently, any of the regulations surrounding the use of SC in prisons are soft law and are often not enforced.Footnote 72 In order to strengthen this criterion, these laws should occur at both the domestic and international levels. In addition, professional organizations should provide guidance so that health service providers are supported in making ethical decisions and preventing moral distress.Footnote 73
International law does not specifically refer to FF. However, insofar as FF is considered a cruel, humiliating or degrading treatment, or an affront to a person’s dignity, it is prohibited by the International Convention of Civil and Political Rights, considered as customary law. Article 7 of the Convention reads:
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”Footnote 74
Similarly, Common Article 3 of the Third Geneva Convention may be applied to FF of prisoners of war, which may include political prisoners:
“Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) outrages upon personal dignity, in particular humiliating and degrading treatment.”Footnote 75
Despite the international legal prohibition of FF, the practice is legal in several European countries, including Germany and France, several states in the United States, and most recently Israel.Footnote 76, Footnote 77, Footnote 78, Footnote 79
Accountability
Every decision to impose SC on a prisoner should be documented and become accessible to public scrutiny. It should detail the reasons for the SC. Similarly, every decision to force feed a prisoner should be documented and transparent, detailing the specific reasons for FF. A transparent public deliberation is a necessary condition to justify SC or FF.Footnote 80
Necessity
The CPT states that any restriction that is imposed on a prisoner needs to be considered necessary to ensure the safety of individual and general prison population. Any right that is violated or infringed upon needs to be justified. Therefore, SC must be a uniquely capable solution, in that no other feasible options exist to mitigate the harms of a situation.
As admitted by Gross, prisoners who choose to hunger strike carefully select their causes and usually agree to end their strike once their demands are met.Footnote 81 Therefore, FF is never the only option and the custodial authorities must make an explicit decision whether to yield to the prisoner’s requests or to force feed.
Nondiscrimination
Finally, the CPT states that if SC is imposed, it must be practiced in a nondiscriminatory manner with only relevant factors taken into account. If disproportionate use of SC is practiced in a particular group or individual, it ought to be impartially and reasonably justified. Currently, however, young offenders are twice as likely to be placed in SC as compared with the general population.Footnote 82 Similarly, individuals with concurrent substance use and mental health disorders are also over represented in SC. What is lacking in the literature is an explicit discussion as to whether and why this imbalance is (un)justified.
There are no robust statistics available that provide information on whether FF is practiced in a discriminatory manner. However, several recent accounts convincingly link FF to political power, suggesting that FF is done in prisoners who are already disenfranchised, regardless even of their imprisonment.Footnote 83, Footnote 84, Footnote 85
Section Summary
The principles discussed above were created to mediate the potential harms caused by SC and ensure that its use is justified. Due to the significant harms and rights violations that can be caused by SC, evaluative criteria, such as the CPT’s, are essential. The CPT states that any harms and rights violations resulting from SC ought to be unavoidable. The same applies to FF.
The potential harms and rights violations associated with FF are debatably even more severe compared with SC, and thus the FF of prisoners is rarely, if ever, justified. The justification of FF may rely on the five criteria described above: proportionality, lawfulness, accountability, necessity, and nondiscrimination. Such a situation where these criteria are satisfied is difficult to imagine.
Conclusion
In this paper, we equated SC with FF and argued that if SC is to be deemed immoral, FF is immoral to a greater extent. We claimed and explained why SC and FF are ethically analogous and we applied the CPT criteria for the justification of SC to FF, demonstrating that the criteria are harder to satisfy in FF.
Prisoners are considered a vulnerable population with inherently compromised rights. As a result, any further restrictions that are imposed need to be thoroughly evaluated. Despite international standards that outline how prisoners should be treated, cruel and degrading treatment does occur. SC is often an example of immoral treatment of prisoners due to the violation of individuals’ rights and harms to their health.Footnote 86, Footnote 87 Under very specific circumstances, SC could be considered a justifiable practice, so long as it is proportionate, lawful, accountable, necessary, and nondiscriminatory.Footnote 88
Based on the same criteria, we have argued that FF is virtually always impermissible, due to the mental and physical harms it causes an individual, as well as the rights violations it entails. Hunger-striking is a method of expression for a population that is disenfranchised with State-imposed restrictions on their liberty. As a vulnerable population, the emphasis on prisoners’ moral and personal autonomy should be strengthened insofar as their exercise is congruent with the aim of their imprisonment.
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