Now in Legal Rebels:
Posted Jul 01, 2010 09:50 am CDT
Within months of being jailed in Phoenix in January in connection with the disappearance of her infant son, Elizabeth Johnson was accused of assaulting fellow inmates in the Maricopa County Jail and placed on its infamous bread-and-water diet as a disciplinary measure.
Johnson responded with a hunger strike, claiming prison officials were serving her food contaminated with rotten vegetables and worms. While the hunger strike got the intended media attention, it didn’t persuade prison officials to take Johnson off the diet. After all, the law was on their side.
The bread-and-water diet—also known as nutraloaf, special management meals and seg loaf, among other variations—is an unappetizing mix of nutritionally correct foods baked into a loaf and served without utensils. It’s used as a disciplinary tool for a variety of infractions, and prisoners don’t like it. Be cause the loaf can be consumed by hand, prisoners on this special meal are deprived of utensils; because it’s primarily made with starchy ingredients, it constipates. And because of the uncontroverted unpleasant taste of it, it’s also punitive.
Nutraloaf has drawn numerous suits around the country, with prisoners claiming it violates their Eighth Amendment rights. But those lawsuits have, by and large, failed. Judges have held that while nutraloaf may be punitive, the need for prison officials to have disciplinary tools is paramount.
Now prisoners have seized on those holdings and are claiming that these bread-and-water diets violate the 14th Amendment because they are not being given due process hearings first. But if the latest decisions are any indication, it appears that nutraloaf is still what’s for dinner.
In April a federal court in Phoenix upheld the constitutionality of nutraloaf in a decision that focused on whether Maricopa County officials were entitled to qualified immunity stemming from a prisoner’s suit over the extended use of nutraloaf. “This court has reviewed the relevant case law and finds that it was not clearly established in 2003-2004 that placement in the nutraloaf program was punishment or that progressive use of the constitutionally permissible nutraloaf diet for additional violations of jail policy and rules—especially threats to staff—would constitute punishment,” wrote U.S. District Judge Frederick Martone in Bugoni v. Coffman. Other challenges have been likewise unsuccessful.
In February, a federal court in Washington upheld nutraloaf’s use in Gordon v. Barnett. In a previous nutraloaf decision, that court found that while the loaf may be awful, it doesn’t constitute cruel and unusual punishment. The 8th and 9th Circuits, as well as state courts in Illinois, New York and West Virginia, have all ruled similarly.
However, in Gordon, the court did agree that nutraloaf was punishment, thus triggering a due process hearing prior to prisoners being put on a special management diet.
The Washington district court decision follows a similar one in Vermont. Until last year, prisoners there could be put on a nutraloaf diet without a hearing. The state’s correctional department claimed that because the diet was a behavior management tool and not a punishment, no hearing was necessary.
In 2005, Vermont’s prisoners brought a class action suit claiming nutraloaf was, in fact, punishment; last year the state’s high court agreed with the prisoners. The court ruled in Borden v. Hoffman that a nutraloaf diet is “classic punitive deterrence,” and that due process rights require a hearing before prisoners are put on a nutraloaf diet.
The Vermont state legislature responded with a law declaring that nutraloaf is not to be construed as a punishment, but it also mandated a hearing within 48 hours of a prisoner being put on the diet.
Because the Department of Corrections has yet to revise its procedures to accommodate the hearings, nutraloaf is off the plate there, says Vermont DOC official William Lawhorn. “We stopped the practice until we revise our directive,” Lawhorn says. “But it’s been about a year now and we have not revised our directive.”
• 6 slices whole wheat bread, finely chopped
• 4 ounces nondairy cheese, finely grated
• 4 ounces raw carrots, finely grated
• 12-ounce can spinach, drained
• 4 ounces seedless raisins
• 2 cups Great Northern beans, cooked and drained
• 4 tablespoons vegetable oil
• 6 ounces tomato paste
• 8 ounces powdered milk, nonfat/skim
• 6 ounces potato flakes, dehydrated
Source: Vermont Department of Corrections