Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review
Imagine taking basic ingredients found in your cupboard, blending them all together, and then baking the substance until it was brick-like in both texture and taste. Now imagine being subscribed that as a meal three times a day for upwards of fourteen days in a row. That is the reality for many inmates in prisons across the United States today. Prison food is largely unappealing, but there comes a point where prison meals cross over from a culinary catastrophe to an unconstitutional use of punishment. Throughout the United States, prisons use the nutraloaf as an outdated form of punishment and either the Supreme Court or state legislatures must prohibit its use.
What is the Nutraloaf?
Nutraloaf is a food product used in American prisons. The loaf varies in name and substance in every prison that uses it, but its purpose remains the same: punishment for inmates that misbehave.[1] While some prisons limit the punishable misbehavior to food related incidents, others inflict the nutraloaf “for a wide variety of disciplinary and security management reasons.”[2] Each prison uses its own recipe, but the ingredients usually include a mixture of vegetables, non-dairy cheese, beans, bread, meat, oil, and fruit.[3] However, some prisons simply combine the previous day’s leftovers making the recipe almost impossible to determine.[4] The ingredients are then smashed, blended, and molded into a brick-like loaf constructed to be a complete and nutritious meal, but it tastes downright unappetizing.[5] The food is often served without seasonings, such as salt and pepper, in a brown bag or on a piece of paper.[6] A food critic once described the loaf as “a thick orange lump of spite with the density and taste of a dumbbell.”[7] A Lieutenant at the Medina County Jail in Medina, Ohio, described its appearance and taste as if “somebody regurgitated it in a pile . . . [i]t’s not very appetizing at all.”[8] Some inmates maintain that the loaf is “so awful they’d rather go hungry.”[9] The loaf has been inflicted on United States prisoners for decades and has been the subject of litigation for nearly as long.
Court Rulings on the Constitutionality of the Nutraloaf
The basic premise of the lawsuits is that the nutraloaf is cruel and unusual punishment, thereby violating the Eighth Amendment.[10] While there have been many lawsuits concerning the use of nutraloaf in prisons across the nation, two cases are most
I. LeMaire v. Maass
The most frequently cited case concerning the constitutionality of the nutraloaf is LeMaire v. Maass.[11] In LeMaire, an inmate sued the Superintendent of the Oregon State Penitentiary, and challenged the use of nutraloaf to punish food-related violations.[12] LeMaire specifically alleged, among other things, that his Eighth and Fourteenth Amendment rights were violated by “[t]he use of Nutraloaf as part of a controlled feeding status designed to control inmates who throw or misuse food or human waste, or who fail to return meal trays or eating utensils.”[13]
The District Court returned a verdict in favor of the inmate, holding that the use of nutraloaf for up to seven days violates the Eighth Amendment.[14] However, the Ninth Circuit, relying on Supreme Court cases decided after the district court’s verdict, reversed.[15] The court held that the use of nutraloaf does not rise to the level of unconstitutional deprivation because “[t]he Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it need not be tasty or aesthetically pleasing” even if it “occasionally contains foreign objects or sometimes is served cold.”[16] The Court noted that, unlike Hutto v. Finney,[17] the nutraloaf provided an excess of nutritional requirements and inmates have gained weight while in confinement.[18] The Court reiterated that only deprivations that “deny[] the minimal civilized measure of life’s necessities” are sufficient to constitute an Eighth Amendment violation.[19] In the words of the court, since the nutraloaf only inflicts routine discomfort, “its use falls short of the threshold deprivation necessary to form the basis of an Eighth Amendment violation.”[20] In his dissent, Judge Noonan notes that the majority opinion makes a dramatic showing that the inmate has at times acted like a beast.[21] He emphasizes that the Eighth Amendment’s purpose, prohibiting cruel and unusual punishment, draws from the religious and humane conditions of our country.[22] He refutes the majority’s apparent opinion that a “beast deserves beastly treatment.”[23]
II. Prude v. Clarke
In 2012, the Seventh Circuit relied on the effects of the nutraloaf in the Milwaukee County Jail in ruling that an Eighth Amendment claim could be supported by its use.[24] The inmate was exclusively fed nutraloaf for days and “began vomiting his meals and experiencing stomach pains and constipation.”[25] Due to this, the inmate lost fourteen pounds and experienced painful defecation and was eventually diagnosed with an anal fissure.[26] The recipe was never produced to the inmate or the court.[27] In the opinion, Judge Posner held that any “deliberate withholding of nutritious food or substitution of tainted or otherwise sickening food, with the effect of causing substantial weight loss, vomiting, stomach pains, and maybe an anal fissure . . . would violate the Eighth Amendment.”[28] Since other inmates had also vomited after being assigned the nutraloaf, Judge Posner found that the jail officials were deliberately indifferent to the nutraloaf’s effects on the health of the inmates.[29] This opinion failed to follow the Supreme Court’s two part test established in Wilson v. Seiter for claims concerning prison conditions and practices that violate the Eighth Amendment;[30] however, it emphasized a different theory that the nutraloaf should not be used in United States prisons.
Prisoner’s Right to Due Process
In a state level case, the Supreme Court of Vermont declared the use of nutraloaf was a punishment that required due process before being implemented.[31] While that case was decided on state law, additional punishment without due process is a violation of the United States Constitution. The decision to place an inmate on the nutraloaf diet and for what period of time seems arbitrary.. The type of officers allowed to make such a decision varies from prison to prison from corrections officer to Superintendent of the jail. The recipe used for nutraloaf varies not only from prison to prison but the ingredients vary day to day. This provides a system that is not easily supervised by the administration of justice – the courts. Without standards and procedures in place for any punishment used as a deterrence in United States prisons, the likelihood of unconstitutional practices are greatly increased. Especially in prisons where the nutraloaf, by Prude v. Clarke and LeMaire v. Maass standards, could be constitutional one day and then unconstitutional the next based on recipe or length of the sentence. This practice is uncivilized, unsophisticated, and reprehensible; it has no business being a part of the American carceral system.
Positive Elimination in the States
Due to the controversy of the nutraloaf being an inhumane form of punishment, some states have eliminated the use of the nutraloaf altogether.[32] The state of New York ended the use of the nutraloaf “seeking more humane, and more appetizing, treatment for prisoners.”[33] In their decision, they noted that the use of the nutraloaf may cause secondary effects in the prisons that are contrary to the purpose of the nutraloaf as a deterrence to bad behavior. The director of the American Civil Liberties Union National Prison Project said, “when you mess with prisoners’ food, that leads to unhappy prisoners, which leads to management problems.”[34] In response to this decision, the president of the Association of Correctional Food Service Affiliates, considers the loaf as cruel and unusual punishment and says that the loaf is being reduced nationwide.[35] After the Borden v. Hofmann decision, the state of Vermont also all but ended the practice of using the loaf as a punishment.[36] And, when it is used, they give inmates procedural due process now.[37] Additionally, California no longer uses the loaves either.[38] Furthermore, the American Correctional Association, which sets best practices for the prison industry, discourages using food as a disciplinary measure.[39] Yet, many states, including the state of Ohio, still use this practice as a form of punishment in prisons and jails.
Conclusion
The practice of using food as punishment is barbaric and inhumane. The nutraloaf is neither appetizing nor appealing, and while inmates are serving time from criminal wrongdoing, they do not deserve to be treated as beasts confined in concrete walls. Many states have taken the initiative to ban this practice from their state prisons, and others should do the same. While the courts have held it does not violate the Eighth Amendment, it is an additional form of punishment inflicted without due process of law. However, the responsibility falls on the legislature in each state to prohibit the use of nutraloaf. I urge these men and women to visit their local prisons, try the nutraloaf, and realize its use is so contrary to our American values that its must come to an end.
[1] Nutraloaf is also known as the discipline loaf, food loaf, confinement loaf, or segregation loaf. Jesse McKinley, New York Prisons Take an Unsavory Punishment Off the Table, The New York Times (2015), https://www.nytimes.com/2015/12/18/nyregion/new-york-prisons-take-an-unsavory-punishment-off-the-table.html.
[2] Christopher Zoukis, Use of Nutraloaf on the Decline in U.S. Prisons, Prison Legal News (2016), https://www.prisonlegalnews.org/news/2016/mar/31/use-nutraloaf-decline-us-prisons/.
[3] The Recipe for Nutraloaf, WCAX.com, http://www.wcax.com/story/10002909/the-recipe-for-nutraloaf; see also, John Campanelli, Jailhouse Slop: If you don’t behave, it’s nutraloaf for you!, Cleveland.com (2009), http://www.cleveland.com/pdq/index.ssf/2009/11/post_15.html.
[4] Eliza Barclay, Food as Punishment: Giving U.S. Inmates ‘The Loaf’ Persists, NPR (2014), http://www.npr.org/sections/thesalt/2014/01/02/256605441/punishing-inmates-with-the-loaf-persists-in-the-u-s.
[5] Zoukis, supra note 2.
[6] Campanelli, supra note 3.
[7] Jeff Ruby, Dining Critic Tries Nutraloaf, the Prison Food for Misbehaving Inmates, Chicago Magazine (2010), http://www.chicagomag.com/Chicago-Magazine/September-2010/Dining-Critic-Tries-Nutraloaf-the-Prison-Food-for-Misbehaving-Inmates/.
[8] Campanelli, supra note 3.
[9] Wilson Ring, Prison Calls It Food, Inmates Disagree, Huffington Post (2008), http://www.huffingtonpost.com/2008/03/23/prison-calls-it-foodinma_n_92953.html.
[10] LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993).
[11] Id.
[12] Id. at 1447.
[13] Id. at 1449-50.
[14] Id. at 1450.
[15] Id. at 1451 (referring to Wilson v. Seiter, 111 S. Ct. 2321 (1991) and Hudson v. McMillian, 112 S. Ct. 995 (1992)).
[16] Id. at1456.
[17] 437 U.S. 678, 686-87 (1978) (holding that a substance, known as “grue”, that only provided 1000 calories a day and caused inmates to lose weight was unconstitutional).
[18] LeMaire, 12 F.3d at 1456.
[19][19] Id. (citing Hudson v. McMillian, 112 S. Ct. 995 (1992)).
[20] Id. at 1456.
[21] Id. at 1464. (Noonan, J. dissenting)
[22] Id.
[23] Id.
[24] Prude v. Clarke, 675 F.3d 732, 733 (7th Cir. 2012).
[25] Id.
[26] Id. at 733-34.
[27] Id. at 734.
[28] Id.
[29] Id. at 735.
[30] LeMaire v. Maass, 12 F.3d 1444, 1451 (9th Cir. 1992); see also Wilson v. Seiter, 111 S. Ct. 2321 (1991).
[31] Borden v. Hofmann, 2009 VT 30 (Vt. 2009)
[32] McKinley, supra note 1.
[33] Id.
[34] Id.
[35] Id.
[36] Kaleigh Rogers, When Prison Food is a Punishment, The Motherboard (2015), http://motherboard.vice.com/read/when-prison-food-is-a-punishment.
[37] Under 28 V.S.A. §§ 851-853, the Vermont Department of Corrections is required to conduct a fact-finding hearing before imposing punishments, such as the nutraloaf, on prisoners. At this hearing, prisoners are entitled to notice of the charge, to confront the person brining the charge, to testify, and to question witnesses. Vermont Supreme Court: “Nutraloaf” Diet is Punishment that Requires Hearing, Prison Legal News (2009), https://www.prisonlegalnews.org/news/2009/aug/15/vermont-supreme-court-nutraloaf-diet-is-punishment-that-requires-hearing/.
[38] McKinley, supra note 1.
[39] Eliza Barclay, Food as Punishment: Giving U.S. Inmates ‘The Loaf’ Persists, NPR (2014), http://www.npr.org/sections/thesalt/2014/01/02/256605441/punishing-inmates-with-the-loaf-persists-in-the-u-s.
