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The Official Podcast for the Minnesota Law Review - https://journals.law.umn.edu/mlr
00:00:37:58 - 00:01:00:05
Unknown
Hello and welcome to The Experto Crede podcast. I'm one of your hosts, Kylie Evans, an online editor of the Minnesota Law Review, volume 107. Today with me, a fellow MLR editor, Jackie Cuellar, and we will be discussing her student note gruel and unusual prison punishment diets and the Eighth Amendment. Thank you for joining us. Thanks so much for having me.
00:01:00:10 - 00:01:32:55
Unknown
Jackie. Before we delve into your note, can you give the listeners an idea of what spurred you to write the article? Was there anything in your background that opened you up to this topic? Yes. So before law school, I got my master's in public health, and I was interested in how the food system affects health outcomes, and mostly looking at food accessibility and affordability, as well as the environmental impacts of the food system and agricultural practices.
00:01:32:55 - 00:01:53:29
Unknown
And I ended up taking a class at the law school in food law. And that was the first time I heard about neutral, and I was actually pretty disturbed about the idea. I mean, I had heard about prison food being low quality, but the idea that it would be used as a form of punishment just really stuck with me.
00:01:53:29 - 00:02:18:24
Unknown
And I was surprised that it was the first time I had heard about neutral love, because my undergrad degree was in nutrition, and here I was thinking I, you know, wasn't an expert on food issues, but was somewhat familiar with them. But this was the first time it had come up. And so when I was starting to think about what I might want to write for my note, that was definitely one of the first ideas that came to mind.
00:02:18:27 - 00:02:41:43
Unknown
And to see if there was a way to use a legal approach to eliminate its use. And the note and comment department on MLR was really supportive and encouraged me to to explore it further. Had you ever encountered criminal law yet in your law school career, or was that sort of your first foray into that world? Very much so.
00:02:41:46 - 00:03:05:22
Unknown
I had really only seen much overlap with like health law or environmental law in the food system. But this was the first time that I ever really looked into the Eighth Amendment further, or thought about the overlap with criminal law. So you open the note with a powerful story of a prisoner, Terrell Thompson, who died in custody after being denied water for seven days.
00:03:05:29 - 00:03:27:00
Unknown
You also mentioned others who have suffered from the Neutral Oath Diet. These tragedies seem to end in settlements from the jail, but rarely a change in constitutional case law on the subject. What do you think has prevented the courts from ruling against these conditions? Do you see it as an oversight from the court, or just a product of the slow moving legal process?
00:03:27:05 - 00:04:04:07
Unknown
I definitely think there is an element of the courts being very slow to adapt to changes in how society wants to treat incarcerated individuals. I would also say that these cases often raise multitudes of issues. Not. It's very rare that it would only raise neutral as being unconstitutional. And since the Eighth Amendment is such a high bar, I think that it can be very attractive to all parties for there to be a settlement, rather than having to go through and prove that each of those conditions was unconstitutional.
00:04:04:12 - 00:04:39:39
Unknown
Do you think that the court, in some ways may have deliberately dismissed this particular topic, even when they did have a somewhat similar case as well? Yeah, I would say that not only would acknowledging that neutral was unconstitutional open the door to other cases around food in prisons, I think it could also potentially be a springboard to look at other conditions, like sleeping arrangements, medical care, hygiene and all of these other issues that I think the court is generally reluctant to turn to.
00:04:39:51 - 00:05:06:34
Unknown
Yeah, I kind of wonder if the Covid pandemic may also force the court to sort of reassess what it means to be cruel and unusual. That's a really good point. Yeah. You discussed the difficulty that both the Supreme Court and lower courts have had in determining when something is objectively cruel and unusual. Do you think that the vagueness around that test has contributed to these sort of inhumane dietary punishments?
00:05:06:39 - 00:05:34:58
Unknown
I think that's right. I think it's a big task for the court to try to really pin down, you know, what exactly society considers cruel and unusual, and especially across the different understandings of what is the purpose of the punishment and what is the purpose of incarceration. And so, you know, courts have some of these indicators and guidance that they can try to use to figure out what society deems to be, you know, its so-called vendors.
00:05:35:03 - 00:06:05:17
Unknown
The American Bar Association also sets forth standards for incarcerated individuals. Or there's the UN has guidelines as well, but those are really imperfect. I mentioned in my note the bread and water diet, which was ruled unconstitutional in the 1970s. But there is this newspaper article from 1926, when a judge had sentenced these two bootleggers to the bread and water diet, and there was just an uproar.
00:06:05:17 - 00:06:29:41
Unknown
And he was, quote, swamped by criticism. And I think that that is evidence of how slow the courts can be to acknowledge that society's views have changed on forms of punishment and how it expects incarcerated individuals to be treated. Wow. So there's always 50 or 50 years after the sort of public uproar. Did the courts actually get around to changing the law?
00:06:29:46 - 00:06:55:29
Unknown
Exactly. So you mentioned this a little bit in your note, but how do you think that the significant increase in incarceration rates has perpetuated the poor diet in prisons? I think that prisons are being asked to do a lot with a very little amount of money and resources, and it seems to be continuously chipped away at. And so the natural outcome of that is to cut corners.
00:06:55:29 - 00:07:20:43
Unknown
And one of the easiest places to do that is in their food budget. And so that leads to lower quality food in jails and prisons. And they have to turn away from fresh, whole food options to highly processed options that are easier to prepare and to serve and are cheaper. And so that, I think, increases the number of incarcerated people.
00:07:20:48 - 00:07:26:41
Unknown
The increase in the number of incarcerated people only exacerbates that issue.
00:07:26:46 - 00:07:52:12
Unknown
I know that this note is focused more on legal arguments about prison diet, which is rooted in the Eighth Amendment. But I wonder if you think that there are any potential legislative solutions that could help resolve the problem as well. Absolutely. I think that that could even be a faster way to eliminate it, because, as we mentioned, it could be decades before the court comes around to recognizing neutral as unconstitutional.
00:07:52:12 - 00:08:16:00
Unknown
And I am hopeful that that is the direction that we're heading in, even if it's just at the state level. We already have 14 states that have eliminated neutral of use. And I think that there are currently so many important conversations happening around what is the state of our jails and prisons, and what is the efficacy of incarceration as a form of rehabilitation.
00:08:16:05 - 00:08:41:27
Unknown
And so I hope that neutral of cases can continue to reach the courts, because you know that if if there's cases that result in a settlement or even if they don't and a judge won't rule it to be unconstitutional, I think president administrators will start to be a little bit squeamish about continuing to use neutral and no longer see it as worth it.
00:08:41:29 - 00:09:06:36
Unknown
Yeah. Because you said that these are not really standards that are decided at a national or a federal level, but really either state and a lot of times localities. Is that right? That's right. Yes. And so if prisons can look even to just other prisons that are having to face this litigation and the costs associated with that, I think that they can be discouraged from continuing to use food as punishment.
00:09:06:41 - 00:09:34:43
Unknown
I found your application of current Eighth Amendment case law to the neutral of diet to be particularly interesting, especially when you argue that the loaf is so inedible that it's irrelevant whether it contains the minimal nutritional and caloric requirements. I couldn't help but think of the more humane way that other developed countries, particularly in Norway, treat their prisoners, although their prison environments are obviously different in a number of ways.
00:09:34:45 - 00:10:18:22
Unknown
But how do you think that the dehumanizing experience of things like the Neutral Oath Diet contribute to America's growing recidivism rate? I think that that is part of what I see as being so dangerous about using neutral Oath. I think one of the counterarguments to eliminating it is that it can be this way to maintain order and control and promote safety, but because food is such a powerful way for a prison administration to exert control over a prisoner, I think that leaves individuals just feeling like they've been completely stripped of their autonomy and their choice and their dignity, and that there are serious consequences that can result from that.
00:10:18:24 - 00:10:54:55
Unknown
I mean, I was reading about entire prisons that burned down from riots that seemed to have started over poor quality food and just that extremely controlling environment, I think, is it's purely retributive, and it ignores the fact that the vast majority of incarcerated individuals are going to reenter their communities. And so if their time incarcerated has no piece of it that looks at rehabilitation or a restorative approach, then their chances of being successful when they're released are unnecessarily diminished.
00:10:55:03 - 00:11:18:53
Unknown
And so I just I see zero redeeming qualities of neutral and just damage that sticks with them even beyond incarceration. And I wonder if getting rid of neutral will start, like you suggested, a sort of rise against the use of food as punishment in jails. Because I think my worry is that, you know, they got rid of the bread and water diet, and that was replaced by neutral oath.
00:11:18:53 - 00:11:47:53
Unknown
And what happens when they get rid of neutral loaf? Are they going to try and use another food related punishment to replace it. Yeah, that's exactly right. And that was my my advisor, Professor rights had encouraged me to develop a new part of my note to be applicable not only to cases being brought challenging the use of neutral, but that could be turned into really any form of food being used as punishment.
00:11:47:53 - 00:12:16:29
Unknown
And what kind of evidence should be gathered in cases like that? And what persuasive arguments can be made so that, yes, if prisons do try to just fill that gap with something equally as bad or worse, that that can also be challenged as unconstitutional. Do you think that the standards for what it takes to be sort of objectively cruel and unusual may need to change a little bit as well in order to make those arguments more effective?
00:12:16:34 - 00:12:40:39
Unknown
I think that, yes, the courts probably have a lot of room to grow. And in acknowledging that we really have changed in how we expect prisoners to be treated and that there are certain things like food that are just such fundamental rights that the state has to provide to those that are in its custody and shouldn't be messing with it for purposes of punishment.
00:12:40:43 - 00:13:00:10
Unknown
Well, thank you so much for joining us. It was great to learn about your note, and I hope that your analysis and this podcast can give us a little bit of light on what we can do in the future to make prison a little bit less intolerable. Thanks so much for having me.
00:13:00:15 - 00:13:34:43
Unknown
This podcast has been brought to you by the Minnesota Law Review. You can find us on the web at Minnesota Law Review. Follow us on Twitter at. Subscribe to Expert on Apple Podcasts, Spotify, Stitcher, SoundCloud, or via your preferred podcast application by searching the University of Minnesota Law School. The views expressed by the participants of this program are their own and do not represent the views of are they endorsed by the University of Minnesota, University of Minnesota Law School or Minnesota Law Review?
00:13:34:53 - 00:13:37:29
Unknown
And that the content should be considered legal advice.