Jessica Rios
Associate Editor
Loyola University Chicago School of Law, JD 2026
There is practically no regulation of prison food, making access to fresh produce and adequate nutrition a central crisis in prisons. While the dreadful nature of prison food is no secret, the structures that enable such undesirable conditions tend to be overlooked in mainstream discourse. Prison reforms have a long history of substantial difficulty in garnering popular support. Though food is one of the most protected prisoner rights to date, there is growing concern from prisoners’ rights organizations and experts on what lack of food regulations in prisons means for the ever-growing incarcerated population.
Efforts to cut costs have led to food that is primarily concerned with meeting minimal nutritional requirements, with most states spending less than three dollars per person each day on prison food services. Nutritional standards are primarily governed at the state and local level and are subject to a “patchwork of state laws, local policies, and court decisions.” But how did we end up here?
History of food & prison law
The Pure Food and Drug Act of 1906 marked the first major national legislation on food law after Upton Sinclair’s The Jungle sparked public outrage at deplorable conditions in the meatpacking industry. This Act also marked the establishment of what would later be known as the Food and Drug Administration (FDA).
In contrast to the regulation of food, prisons were largely subject to the discretion of prison administrators rather than courts or any regulatory body. Courts were generally unconcerned with prison law until the 1960s, when they began reviewing claims and finding that practices in prisons may violate the Eighth Amendment prohibition of cruel and unusual punishment.
The current state of prison oversight
Passed by Congress in 1996, the Prison Litigation Reform Act (PLRA) places a number of limitations on imprisoned persons’ ability to assert their legal rights via the courts. Specifically, the PLRA restricts court oversight of prison conditions by limiting the power of federal courts to make and enforce orders remedying unlawful conditions in prisons. Inmate litigation, once a valuable tool for furthering and defending incarcerated persons’ rights, is now a significantly less viable path to establishing much desired reforms due to the establishment of the PLRA. There is currently no independent national agency that monitors conditions in prisons, jails, or juvenile facilities or enforces minimal standards of health, safety, and humane treatment. In fact, most states lack independent oversight in monitoring prison conditions more generally. Considering the lack of agency afforded to imprisoned populations under the PLRA, there is a need for outside regulation and oversight of prison conditions.
What prison food law looks like today
The law regarding prison food is primarily shaped by prison law rather than food law. The main source of oversight for prison conditions is inmate litigation that alleges constitutional violations such as cruel and unusual punishment under the Eighth Amendment. This lack of independent regulation means that sanitation and nutrition conditions must pass a high bar to be considered unlawful under the Eighth Amendment. Such conditions must violate “contemporary standards of decency,” and an inmate must prove that “prison officials were ‘deliberately indifferent’ to the specific problems in the case.”
The lack of regulation for addressing prison food quality has far-reaching negative health effects as mass incarceration places a greater strain on prison resources. These health concerns range from increased risk of illness due to inadequate sanitation to considerations regarding mental health. Even relatively minor changes in an imprisoned person’s access to food may have major psychological impacts due to their already limited amount of control over their own lives. While commissaries may supplement meals, most cannot afford this option.
The hope that activists and experts may have held for prison food reforms is only further complicated by the Supreme Court overturning Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Under the Chevron doctrine, courts were required to defer to federal agencies’ interpretation of statutory law rather than judges who lack the relevant technical knowledge on the particular topics at issue. However, the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo severely limits the authority of federal agencies. Under Loper Bright, courts are no longer required to defer to the expertise of federal regulatory agencies when a regulation is ambiguous. This lack of deference invites legal challenges to FDA rules, placing food safety enforcement at risk. Now such regard for food health and safety will overwhelmingly concern the masses, which may only further delay progress in this realm for imprisoned populations in particular.
Despite risk to the FDA’s authority under Loper Bright, incarcerated persons would benefit from FDA oversight of prison food. Repealing the PLRA is one option in remedying the poor quality of food in prisons as it would allow for inmate litigation. However, doing so is not enough. The expertise of the FDA would provide greater protections and serve as a more effective remedy by applying the same standards that the rest of the non-incarcerated population currently enjoys. FDA oversight would also maintain the PLRA’s goal of reducing the number of cases filed as people in prison would not have as great a need to litigate food quality, so long as prisons are in compliance with the FDA. This current deprivation of oversight further dehumanizes an often forgotten population, and FDA oversight is a crucial step toward restoring that humanity.