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Court: Inmate doesn't have right to starve himself

Richard Roesler
Staff writer
April 11, 2008

OLYMPIA – A Spokane arsonist does not have a constitutional right to starve himself in prison, Washington’s highest court ruled today.

Charles R. McNabb, serving a 14-year sentence at the state prison in Monroe, had asked the court to ban the Department of Corrections from force-feeding him. Prison officials maintain that they have a duty to keep him from starving to death.

“We have a legal and constitutional obligation to keep prisons safe and secure and to make sure that the offenders in our custody are cared for,” said Maria Peterson, a DOC spokeswoman. After being force-fed, McNabb, 53, agreed to continue eating on his own.

In 2003, McNabb used camp-stove fuel to set his estranged wife’s Spokane home on fire. Several family members escaped, but the flames badly burned McNabb’s then-16-year-old stepdaughter, Kayletta Olbricht. Burned on nearly a quarter of her body, she had no pulse when found by firefighters. Revived, she spent about two months recovering in a Seattle hospital. The fire destroyed the home.

Apparently out of remorse, McNabb stopped eating in jail while awaiting trial. Over the course of months in the Spokane County jail, he lost about 100 of his 180 pounds. He told jailers he intended to starve himself to death over what he’d done. He would only drink water and an occasional cup of coffee.

In his last three weeks in jail, the county was spending $1,000 a day to take him to Sacred Heart Medical Center for monitoring.

In July 2004, he pleaded guilty to first-degree assault and first-degree arson. He was sentenced to 14 years in prison. Transferred to the state prison in Airway Heights, he again refused to eat.

“My only wish is for my personal decision not to eat to be respected and to be left in peace for my fast to take its course,” he wrote. “… I have no dependents or anyone else relying on me for support. My decision not to eat affects only me.”

Prison officials urged him to eat. When he still wouldn’t, a tube was inserted up his nose and he was force-fed.

Today, the state Supreme Court said that prison officials were right.

“The State’s interests in applying DOC’s force-feeding policy to McNabb outweigh his right to refuse artificial means of nutrition and hydration,” wrote Justice Mary Fairhurst.

“… Charles McNabb is not conducting a hunger strike – he is attempting to commit suicide,” agreed Justice Barbara Madsen. “… McNabb has no right to starve himself to death by refusing sustenance while in the custody of the State.”

Among the nine justices, only Richard Sanders disagreed, calling the force-feeding through McNabb’s nose “tantamount to torture.”

Quoting from a 1928 federal case, Sanders wrote “… This case is about ‘the most comprehensive of rights and right most valued by civilized men,’ namely ‘the right to be let alone.’ ”

The court was unusually divided in the decision. Fairhurst and three other justices signed the lead opinion, arguing that:

• Allowing McNabb to starve to death would disrupt the prison and bother staff and prisoners.

• The state should preserve life when medically possible.

• The state should prevent suicide.

• Allowing him to starve to death in state care would be “tantamount to physician-assisted suicide” and put prison doctors on ethical thin ice.

Four other justices agreed that McNabb shouldn’t starve himself to death. But they said the matter is simple: Washington law says that only someone with a terminal or incurable illness or suffering from “severe and permanent mental and physical deterioration” has the right to refuse to eat and drink. McNabb’s in neither category, Justice Barbara Madsen wrote.

“He therefore has no right to refuse life-sustaining treatment,” she wrote.

But in a dissent that cites Shakespeare, St. Augustine, the Bible, and a treatise on war crimes, Justice Sanders called force-feeding “degrading and cruel.”

He cited a description of the process, as reported by McNabb during a short stay at Eastern State Hospital: “He was strapped into a chair for 28 hours straight, during which time it was impossible for him to sleep. From the force-feeding he suffered bleeding from the nose for a day, pain and nausea.”

Sanders criticized state prison policy of beginning force-feeding after as little as three days of not eating.

“It seems to me the only purpose of this policy is to exercise control over the only thing remaining to Mr. McNabb, his body,” Sanders wrote.

Richard Roesler can be reached at (360) 664-2598 or by e-mail at richr@spokesman.com.

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