“Erring on the Side of Life”

Earlier this week, U.S. District Court Judge Thelton E. Henderson ruled that prisoners on hunger strike in California may be force-fed, even if they have signed an advance directive to refuse medical resuscitation.

Joyce Hayhoe, a spokesperson for California Correctional Health Care Services, commented on the decision: “It's better to err on the side of life.” 

She cited claims made by the California Department of Corrections and Rehabilitation (CDCR) – and refuted by the Hunger Strike Mediation Team – that some prisoners have been coerced into signing Do Not Resuscitate orders by prison gang members. 

These claims form part of the CDCR’s broader public relations campaign to discredit the strike action by representing it as a “gang power play.”  I have critiqued this representation elsewhere, arguing that the term gang and the CDCR’s policies for gang validation and debriefing, function as a mechanisms of social and civil death, criminalizing both the collective resistance and the collective existence of people behind bars.

 

These mechanisms of social and civil death are reinforced by the “refeeding” order recently signed by Judge Henderson.  The order states the importance of balancing a need for “institutional safety and security” with a respect for “inmate-patient autonomy over their person and the receipt of medical treatment” (2).

Medical staff are concerned that [the current refeeding policy] does not provide sufficient guidance with respect to when clinicians may refeed in the face of possible, but uncertain, coerced participation in the strike or coerced execution of “do not resuscitate” directives. (2, emphasis added)

Here, as in official CDCR documents, the prison administration is represented as a provider of care, security, and other life-supporting services to an inmate-patient clientele.  A few weeks ago, I analyzed the biopolitical rhetoric of this policy in a blog post for Society and Space.  This was my conclusion at the time:

While couched in the bioethical language of care and respect for the autonomy of the “patient,” such policies work to absolve the CDCR from any meaningful sense of responsibility for the survival and well-being of hunger strikers.  In effect, they give these protesters two options: consent to be force-fed, or consent to die. 

The new refeeding order removes the latter option.

It uses an invocation of respect for “inmate-patient autonomy” and concern for the possible (but uncertain) “coercion” of prisoners as an alibi for disrespecting the autonomy of prisoners and coercing them to be fed against their will. 

But not just against their will.  The new refeeding order also undermines the meaning and efficacy of their words in a document that, if it were signed by anyone else, would have a legally-binding status.  In this sense, it perpetuates the civil death of prisoners and intensifies the de facto “status crime” of existing as a validated gang member and daring to resist, even at the cost of your health and even your life.

The new refeeding order recognizes three basic conditions under which a hunger striker’s Do Not Resuscitate (DNR) directive can be rendered invalid:

For purposes of this order, a previously executed “do not resuscitate” directive will not be considered valid if a) the CME [Chief Medical Executive], reasonably and in good faith, determines it was the result of coercion or otherwise not the product of the hunger striker’s free will when executed; b) a court has determined the directive is invalid as a matter of law; or c) the hunger striker, or an attorney-in-fact for the hunger striker acting pursuant to a properly executed power of attorney, revokes such directive. (4)

While the second two conditions seem reasonable enough, the first introduces what we could call a “subjective component” into the evaluation of the validity of DNR directives.  The Chief Medical Examiner is granted the authority to revoke a prisoner’s signed directive if he determines, “reasonably and in good faith,” that it was not the product of the prisoner’s “free will.”  How he manages to discern the true contents of this will, we will never know; we would have to slice through the metaphysical paradox of a free will whose self-knowledge and self-expression depends upon the reasonable judgment of another to “validate” it. 

But this is not about truth, it’s about power.  Or rather, it’s about the power to determine the truth.  This refeeding order grants the CME (at least the possibility of) a reasonable mind, while the hunger striker is both granted and denied a “free will” to make his own autonomous decisions.

And that’s not all.  The refeeding order continues:

In addition, in view of the risk that inmates may be or have been coerced into participating in the hunger strike, for purposes of this order a ‘do not resuscitate’ directive executed by a participant in the hunger strike at or near the beginning of or during the strike will be deemed not valid. (4, emphasis added)

In other words, the only way a prisoner could issue a DNR directive that would not be undermined by this clause is by signing that directive long before the current hunger strike began, or after it has ended.  Anyone who signs such a directive “at or near the beginning of or during the strike will be deemed not valid.”  No matter that copies of advance directive and POLST forms were distributed to hunger strikers three weeks after the strike action began, as part of the CDCR’s former hunger strike policy (CCHCS Mass Hunger Strike, Fasting, & Refeeding Care Guide, 3)!  If a prisoner had not made up his mind to sign an advance directive well in advance of any actual hunger strike, his decision will be rendered invalid, nominally for the sake of respecting his autonomous will and protecting him from the coercive power of gang members (even if he, too, has been “validated” as a gang member).

In this way, the “free will” of the hunger striker is not just subordinated to the reasonable mind of the CME; any semblance of a will, free or conditioned, is canceled out by the very fact of participating in the strike action.  To put this differently: If you dare to exercise your will in a way that is not approved by the CDCR – even if it causes no harm to anyone but yourself – your will, your capacity to express that will, and your right to have the legal expression of your will respected by others – will be invalidated.

Again, this is more than a disrespect for the prisoners’ individual autonomy; it is criminalization of the hunger strikers’ resistance and existence, a disqualification of their mind, their will, and their capacity for meaningful speech.

Henderson’s authorization of the new refeeding order compounds the civil death of prisoners, even as it claims to “protect” them from the harm of biological death.  It not only compromises their autonomy as individuals, it also – and more importantly – undermines their capacity to enter into a binding legal agreement, to make their words “stick” in a document that carries legal and social weight.  It withdraws their legal competence to speak for themselves, regardless of their mental or physical health.

This is not the first time Judge Henderson has issued a legal decision that perpetuates the social and civil death of prisoners, even while invoking a rhetorical respect for human dignity.  In Madrid v Gomez (1995), Henderson ruled that:

Conditions in the SHU may well hover on the edge of what is humanly tolerable for those with normal resilience, particularly when endured for extended periods of time. They do not, however, violate exacting Eighth Amendment standards, except for the specific population subgroups identified in this opinion [i.e., for the mentally ill]. (at 1280)

The “population subgroups” identified by Henderson as deserving of protection from cruel and unusual punishment were 1) prisoners who are already mentally ill, and 2) prisoners who are at “unreasonably high risk” of becoming mentally ill if held in SHU conditions (at 1267).  By limiting Eighth Amendment protection to those who are already suffering from mental illness or recognizably on the verge of it, Henderson created a loophole into which virtually every prisoner could fall.

 

In brief: If you are already mentally ill or “unreasonably” close to mental illness (whatever that means, and however it is measured), you are protected from conditions that would exacerbate your condition. You are recognized as a human being, with an intrinsic dignity that no civilized nation would dare to violate. But if you are not (yet) mentally ill – if you display “normal resilience” to barely tolerable conditions – then you may be confined in a situation that is acknowledged by psychiatrists such as Craig Haney and Stuart Grassian to produce mental illness.  In other words: Unless you can obtain a diagnosis of mental illness, you may be subject to conditions that typically produce mental illness. 

 

Colin Dayan develops a brilliant analysis of Madrid v Gomez and other cases in The Story of Cruel and Unusual and The Law is a White Dog.  She has also commented on the new refeeding order in an article for Aljazeera America.  In a recent interview with Jill Stauffer for The Believer, Dayan warns: “We have invented a new form of death” in spaces of indefinite detention and extreme isolation like the SHU and Guantanamo Bay.

But we have also invented a new form of life: a life that is allowed neither to flourish nor to pass away; a life that is both dangerous enough to be locked down 23 hours a day, and also fragile enough to warrant care and protection as an inmate-patient, even when he has explicitly refused such care.  The speaking-being of such a life is invalidated in advance, condemned to both a (social and civil) death and an irremissible biological life under the protection and control of the state.

This is a classic case of what Foucault calls biopower: the power to make live and let die.  The CDCR reserves the right to “make” prisoners live, even if they refused nourishment and signed a legal document requesting not to be fed, even after they lose consciousness and are no longer able to speak. 

But it goes even further: the CDCR will not even let the hunger strikers die, at least not on their own terms, as expressed by their own will, both in a legal document and in a collective effort to reclaim some meaning for words like freedom and self-determination.

This is a particularly intense form of biopower.  It is the power to make live and not to let die; the power to issue a (social and civil) death sentence under the cover of care, protection, and respect for the autonomy of the individual’s “free will.” 

But a system that neither lets you live nor lets you die is not “erring on the side of life.”  It is deploying life as a instrument and alibi for death.  And it is undermining the very foundation of law in a respect for the binding word of another.  You might not approve of that word.  As President Obama said of the hunger strikers at Guantanamo, “I don’t want these individuals to die.”  But there is no rule of law without a respect for the other’s binding word.

In effect, the refeeding order authorized by Henderson transfers the silence of “brain death” and biological death into the living, breathing, resistant life of hunger strikers by undermining the power of their words to bind the actions of others, to make a claim on the institution of the prison and the courts, and to exercise even the minimal social power to let themselves die.

Force-feeding prisoners – whether at Guantanamo Bay or in the California prison system – does not err on the side of life.  It errs against life, and against the social relations that make life meaningful and, quite frankly, bearable.

Political life is based on the possibility of conversation, on the exchange of meaningful words.  And you can’t talk with a tube shoved down your throat.