Vermont Court to decide if food is punishment

MONTPELIER, Vt.—Savory it isn't: It's made of whole wheat bread, non-dairy cheese, raw carrots, spinach, seedless raisins, beans, vegetable oil, tomato paste, powdered milk and dehydrated potato flakes.

To prison officials, it's a complete meal. To inmates, it's a food so awful, they'd rather go hungry than eat it.

Now, in the latest legal battle over the prison cafeteria standard known as Nutraloaf, the Vermont Supreme Court is being asked to decide whether it's punishment or merely behavior modification.

On Monday, the court will hear arguments in a class action suit brought by prison inmates who say it's punishment and that anyone subjected to it should get a formal disciplinary process first.

"It's commonplace in other states as a way of providing nutrition in a mechanism that dissuades inmates from throwing feces, urine, trays and silverware," said Vermont Corrections Commissioner Rob Hofmann.

"It tends to have the desired outcome," Hofmann said. "Once the offender relents, we stop with the Nutraloaf. That's our goal, to protect our staff and not have them subjected to behavior that the average Vermonter would find incomprehensible."

Seth Lipschutz, an attorney with Vermont's Prisoner's Rights office, says the state has a legitimate interest in changing the behavior of inmates who misbehave.

But he says a diet of Nutraloaf is punishment, plain and simple. To call it anything else is "playing with words to get what they want. It's wrong and it's sad," Lipschutz said.

"If it's punishment, you've got to follow the rules," Lipschutz said. "Even in prison you get a little bit of due process."

Nutraloaf and its equivalents have been used for decades in prisons across the country. In 1978, the U.S. Supreme Court ruled a substance used in Arkansas known as "'grue' might be tolerable for a few days and intolerably cruel for weeks or months."

Since then, there have been numerous legal cases involving Nutraloaf, or its equivalents.

The Michigan Department of Corrections was involved in one of those cases, in which a federal judge ruled in 1988 that the use of Nutraloaf is punishment.

Now, Michigan inmates are only given Nutraloaf after going through the disciplinary process that lands them in segregation, said Department Spokesman Russ Marlan.

"It's done very infrequently, but it seems to accomplish its goal of preventing prisoners from using or abusing food or their containers in a way that could adversely affect our staff," Marlan said.

Occasionally, The National Prison Project of the American Civil Liberties Union gets complaints about Nutraloaf from inmates, but it hasn't been involved in the group's litigation in years.

"Our position is that it shouldn't be used unless a violation has to do with food. It shouldn't be used as punishment," said the Prison Project's Public Policy Coordinator Jody Kent. "And even in those circumstances, they have to make sure it won't put at risk their health."

The taste? It's a bit like zucchini bread. "It reminded me of eating my vegetables and I'm not necessarily a big fan of vegetables," Hofmann said.

Vermont Assistant Attorney General Kurt Kuehl, who will argue the case for the Department of Corrections, said the other legal cases involving food loaf centered on whether the food was so bad it constituted cruel and unusual punishment. The courts have ruled it isn't, he said.

But the Vermont case is different, because the use of Nutraloaf isn't punishment, according to the state. Kuehl says it's as if a correctional officer were to find an inmate with a knife. He wouldn't have to hold a hearing to take the knife away.

"It's taking an administrative action to protect the facility," said Kuehl.

Afterward, the inmate can be subject to a separate disciplinary hearing for the conduct that led to being fed Nutraloaf.

All Vermont inmates given Nutraloaf have been segregated from the rest of the prison population. Most who get it have used their utensils to throw body waste.

There's a protocol to protect an inmate's health. Nutraloaf is served on a piece of paper, removing from the inmate's reach the utensils that can be used to store the waste before it is thrown.

Hofmann said Vermont prisons average about one Nutraloaf episode a month.

Christopher Williams, 29, who is charged in a 2006 school shooting that killed two people in Essex, was given Nutraloaf several weeks after his arrest after he'd assaulted guards and smeared excrement in his cell.

Since then, Williams has been an occasional disciplinary problem, but his name hasn't been on the list of inmates given Nutraloaf.

"His name was nowhere to be found," Hofmann said. "I presume it was effective."