Leavides G. Domingo-Cabarrubias | 15 September 2024

Death penalty scholarship and anti-death penalty advocacy have long expressed concern about the dehumanising conditions that individuals under the sentence of death are subjected to in various parts of the world.  Although conditions on death row vary from one country to another, inhumane conditions highlighted include prolonged solitary confinement, deplorable sanitary conditions, insufficient and poor quality of food, and physical violence. While some studies mention food inadequacy among the key problems, there has been little attempt, if any, to examine issues related to, and arising from, the intersection between food and life on death row. The food experience of death row prisoners warrants a closer inspection, given that food is a basic human need and an integral part of the daily prison experience. Indeed, for most prisoners, ‘food is what conditions their life in custody’.

The Eleos Justice webinar Food experience on death row: the right to food and the right to life held in August 2024 interrogated various aspects of the issue of food on death row. Ms Leslie Soble, Senior Program Manager of Food in Prison Project, Impact Justice, shared some of her key findings as she spent over five years immersed in research on the carceral eating experience in the US. Ms. Maitreyi Misra, an expert on the death penalty in India, who serves as Director of Mental Health & Criminal Justice and the Death Penalty Mitigation programs of Project 39A, provided a snapshot of the conditions of death row prisoners in India, including the extent to which their sentence of death impacts their daily food experience. This blog’s author, Dr Leavides Domingo-Cabarrubias, who has a PhD on the right to food, explored the conditions on death row from the right to food framework.

A common theme discussed by the panellists was that food experience in prison can often serve as  punishment. This is contrary to international standards on the minimum acceptable conditions for the treatment of prisoners, including  in relation to nutrition and drinking water. Food deprivation or inadequacy, a common feature in many prisons, can cause both physical and psychological suffering.  Soble, sharing her observations in US prisons, said:

The meals are also lacking in essential micronutrients which can have a serious impact on mental health, including increasing risks of things like depression, things like anxiety, impaired decision-making, and even violent behaviour… [Prison food] is really unsafe. In general, it’s very poorly prepared. We’ve heard so many stories about people finding cockroaches or pieces of metal in their food, mouldy bread, sour milk, rotten meat, things that come years past their expiration date, or things that arrive in prison in boxes marked ‘not for human consumption’… We’ve heard people who are eating food out of the trash that officers have thrown away. We’ve heard stories of people who are so hungry and so desperate that they start eating toilet paper and toothpaste so that they can have something in their stomach.

The food in prison, according to Soble, is designed to send the message that the people who are eating that food ‘are not worthy of care, … that they don’t matter’. Thus, in addition to the physical and psychological suffering caused by food deprivation or inadequacy, food can also become a source of dehumanisation. The issue of food in prison is more than just an issue of adequacy, more than just a matter of satisfying biological needs. Eating is a familiar and intimate part of our lives, and unlike most animals that simply consume foods to stay alive, for people, the foods we eat and the circumstances in which we eat is deeply connected to our individual and collective identities. Misra stressed that it is important to bring attention to the role that food plays in helping individuals ‘not live an animal existence’.

Food as a source of dehumanisation is most pronounced in the case of death row prisoners because the moment that their death sentence is imposed, these individuals are often regarded as no longer worthy of enjoying even the most basic rights, such as the right to health care. They are viewed as objects to be discarded by the State. Misra explained that prisoners under the sentence of death come into the death row with multiple disadvantages, including the fact that they have been convicted of very serious offences that typically invoke very negative feelings from the public; the fact that many of the people sentenced to death come from marginalised communities; and the fact that when they enter prison, they are treated differently from the rest of the prison population by virtue of their death sentence. This view and treatment of individuals on death row impacts the way that food is chosen, prepared, and served to them: they get the worst quality, and get served very little, not enough to be filling. Thus, according to Misra, food becomes a daily reminder ‘of the fact that they are death row prisoners, and therefore they will be served the worst food’.

Individuals on death row, therefore, have heightened vulnerabilities, and the State has a heightened obligation to ensure that these vulnerabilities are not exacerbated. This has been emphasised by several UN agencies including the UNODC.

[P]risoners under sentence of death have special needs due to the most extreme form of sentence that they are under. It is therefore essential to ensure that prisoners under sentence of death do not receive a lower standard of treatment in terms of such matters as food, health care, hygiene, exercise, activities and association with other prisoners.

As the panellists agree, food consumption, instead of being a positive experience, can become yet another pathway of suffering. Some studies assert that food deprivation may be important contributory factors to support a finding of torture inflicted upon persons sentenced to death. Indeed, food deprivation or inadequacy, and the appalling manner in which meals are provided, prepared and served, may constitute a breach of the right to food. Framing the food in prison as a distinct human rights issue can highlight the fact that persons under any form of imprisonment, including those sentenced to death, are equally entitled to the wide range of human rights codified under international law, both civil and political rights and economic, social, and cultural rights. Using the right to food framework can underscore the obligations of governments to ensure that this right is guaranteed—at the very least, to ensure that the death row prisoners’ daily food consumption does not add to their daily degradation. Currently, there are some guidelines. Rule 22 of the Mandela Rules state that each prisoner should be provided ‘with food of nutritional value adequate for health and strength’; Rule 22 of the European Prison Rules require that prisoners be provided with a nutritious diet that is prepared hygienically and served three times a day; and the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas require that food be ‘in such a quantity, quality, and hygienic condition so as to ensure adequate and sufficient nutrition’. However, these are short statements.   Food is a complex issue as even the concept of adequacy and how to quantify it is difficult, and is contingent on many different factors. A more thorough examination and a more unified set of standards that is grounded on the right to food framework may be necessary.

There is still a lot that needs to be clarified in terms of how the content and parameters of the right to food can apply specifically to death row prisoners, given that the right to food as conceptualised under international law generally applies to the outside community. The core content of the right to food implies the accessibility and availability of food ‘in a quantity and quality sufficient to satisfy the dietary needs of individuals’. However, the requirements for the realisation of the right to food may vary depending on the context.  Outside prison, the obligation of the State is to ensure the necessary conditions for the availability of accessible, adequate, and quality food. If these elements are fulfilled, individuals have the freedom—at least in theory and to varying degrees—to choose, access, and prepare the food that they desire.  Inside prison, incarcerated persons do not have any control over the food they eat. As discussed above, the situation of people on death row is even worse, as they are viewed as no longer entitled to enjoy any part of the eating process, one of the most basic bodily functions. Thus, addressing their food situation should begin with an explicit recognition of their entitlement to enjoy this basic human right.

Leavides G. Domingo-Cabarrubias is a postdoctoral researcher at Eleos Justice.