The Right to Eat in Prison

During a recent unannounced food services inspection conducted at six federal prisons across the United States, the Department of Justice discovered mold, broken freezers, insect infestations, and missing knives. Because no federal law establishes nutritional standards for prison meals, a patchwork regulatory system—comprised of retroactive plaintiff actions, internal policies from the Federal Bureau of Prisons (BOP), and private-sector agreements—governs prison food.

The BOP’s authority over prison food is largely administrative rather than statutory. Although federal law requires the agency to provide for inmates’ “subsistence,” Congress has not prescribed detailed nutritional standards. Instead, the BOP regulates food service through agency rules and internal guidance, including federal regulations and the Food Service Manual, which require nutritionally adequate meals and establish standards for meal preparation and special diets.

Although a recently enacted law dedicated to prison oversight requires the Department of Justice to conduct inspections of BOP facilities, any resulting reforms operate largely within the BOP’s internal regulatory framework.

Beyond internal policy, individuals can sue state or local government officials under a federal civil rights statute for violating their rights under the U.S. Constitution or federal law, if the official acted pursuant to their official duties. A recent case suggests that the quality of prison food might implicate the Eighth Amendment’s protection against “cruel and unusual” punishment.

In Prude v. Clarke, the inmate plaintiff sued Milwaukee County jail personnel under that statute, arguing that the jail’s provision of only nutraloaf—a dense bread often made up of a blend of mismatched ingredients and used as a disciplinary measure—amounted to a constitutional violation. The U.S. Court of Appeals for the Seventh Circuit held that the “deliberate withholding of nutritious food or substitution of tainted or otherwise sickening food” could amount to cruel and unusual punishment.

Still, scholars explain that the standard outlined in Prude does not itself empower plaintiffs to succeed in their claims, pointing instead to the pleading and evidentiary burdens imposed by Eighth Amendment doctrine.

For a plaintiff to survive a motion to dismiss or successfully argue an Eighth Amendment claim, the plaintiff must show that the conditions they experience are objectively serious and pose a substantial risk of serious harm. More importantly, the plaintiff must also demonstrate that the officials creating those conditions had a subjectively culpable state of mind, such that they were deliberately indifferent to the harm they were causing.

Some scholars argue that this latter “deliberate indifference” prong is extremely difficult to satisfy, which leaves many inmates without a viable legal remedy for malnourishment.

Across the country, many federal prisons outsource food services to private sector vendors. These private companies offer an efficient and cost-effective alternative to internal food service programs, but many activists and scholars argue that such outsourcing reduces food portions, quality, and overall nutritional value.

In this week’s Saturday Seminar, scholars examine the regulatory vacuum surrounding prison food services and the ways current legal standards and private outsourcing impede meaningful reform.

• A 2024 Department of Justice report following an inspection of food services at a sample of BOP institutions revealed repeated violations of BOP sanitation and safety standards. The inspectors observed a pattern of refrigeration issues across the prisons, with one storing perishable food overnight at 80-degree Fahrenheit Other prisons struggled with broken fridges and freezer shortages. In another prison, Department representatives witnessed insect and mold infestation, along with evidence of rodent infestation. Several inspections also revealed unmonitored kitchen knife exposure. The report concluded that this lack of oversight increases risks of foodborne illness and prison violence, as prisoners can acquire knives as contraband.
• In a note for the Journal of Health Care Law and Policy, D. candidate Alexis S. Gabel at the University of Maryland Francis King Carey School of Law argues that the absence of nutritional density and lax sanitation standards exacerbate a pre‑existing “carceral epidemic,” referring to the disproportionate rates of illness in U.S. prisons. Gabel contends that these failings violate the Eighth Amendment, allowing individuals to bring claims against government officials under federal civil rights law. For these claims to succeed, the “deliberate indifference” test must be either abandoned or reinterpreted to lower the evidentiary burden on inmates, she contends.
• In an article for the Texas A&M School of Law Journal of Property Law, Professor Match Dawson of Mary’s University School of Law warns that the increasing privatization of government affairs could undermine constitutional protections. Dawson argues that though privatization appears to be a “silver bullet” to costly government bureaucracy,” it poses a threat to democratic governance by allowing private actors to perform state-like functions without public oversight. Dawson cites prisons as a prime example of this phenomenon, explaining how Michigan’s outsourcing of food services to Aramark led to food shortages, contamination, and security breaches.
• In an article published in the Marquette Law Review, practitioner Markus C. Johnson and Rita L. Rahoi-Gilchrest of Winona State University argue that courts have treated prison diets as constitutionally adequate so long as meals satisfy minimum caloric thresholds, even when they consist largely of ultra-processed foods linked to long-term health risks. Johnson and Rahoi-Gilchrest contend that this calorie-focused approach has produced troubling results, with some courts upholding meals containing insects, animal feed, or spoiled food. Johnson and Rahoi-Gilchrest argue that prison dietary advocates should focus on the Eighth Amendment’s “evolving standards of decency” framework and seek to strengthen nutritional standards outside prison to establish a baseline for constitutional claims.
• In an article in the Fordham Urban Law Journal, Texas State University’s Elissa Underwood Marek argues that the United States should recognize a right to food for individuals who are incarcerated or recently released. She contends that food insecurity often begins before incarceration, continues in prison, and persists after release. Marek contends that current law leaves these populations especially vulnerable: federal food policy and concentrated corporate power deepen food inequality, courts interpret prison nutrition narrowly, and post-incarceration benefit restrictions worsen hunger. She proposes combining legal recognition of food rights with local advocacy, state constitutional reform, and community-based food initiatives to improve access to food.