Promoting Wise Behaviour, or Mandating it?

Following on from yesterday’s vaguely pro-paternalism post, my eye was drawn to this story, concerning a prisoner who has won the right (or, rather, had the right confirmed) to have high-energy foods sent to him while he’s in chokey.  The beeb has a few crowd-pleasing splutters about the crime for which he was imprisoned, but they’re not important.

The fruit and nuts and bolts of the story is this: a prisoner has a fitness regime that, he claims, means he has a need for high-energy foods that are not normally provided.  He had these foods – things like Lucozade, protein bars and so on – sent to him from outside.  The prison authorities banned this, admittedly not just for him, ostensibly on the grounds that 80% of inmates were obese (compared to 50% on the outside) and such supplies undermined a plan to reduce obesity.*  The prisoner sued.  He won.

Good.

The fact that you’re in prison for nasty crimes means that you have certain civil rights – importantly, your right to liberty – taken from you.  It doesn’t follow from this that you do or should lose all rights of any sort whatsoever.  If other people have the right to decide to consume high-calorie foods if they can get them – irrespective of whether or not they’ll be burning off those calories – then it seems to me that prisoners have similar rights.  Since the man in question hadn’t been sentenced to lose weight, he had the right not to have his food options arbitrarily curbed.

Don’t the prison authorities have a duty of care?  Well, yes.  Obviously.  But it’s not obvious that this would be discharged by mandating healthy eating; given that we’re dealing with adults, most of whom would presumably be perfectly capable of running their own lives in other circumstances, education would suffice for that.  And, on the face of it, a prisoner with a demanding exercise regime isn’t likely to be at risk of obesity anyway; forbidding him from receiving high-calorie foods may actually be detrimental to his health, either by forcing him to undernourish himself, or to give up the exercise.

How does this square with the pro-paternalism stance of yesterday’s post?  I suppose there might be a worry about inconsistency here, if you take a legal requirement to wear a cycle helmet to be comparable with enforced low-cal eating.  But I think that there is a number of differences.  Notably, I claimed yesterday that the “decision” to go hatless is probably only a pseudo-decision in most cases; and I stand by that (Notwithstanding John Coggon’s comment in response to the post).  The decision of the prisoner in this case was not a pseudo-decision.  And people on the outside who decide not to wear a helmet still have a range of options available to them, from going with the law, to taking a chance about breaking it, to finding an alternative way of travelling.  Our prisoner had none of this.

I don’t have the visceral anti-paternalist reaction that a lot of people have – and I think that a lot of the reaction is no more than visceral – but that’s a long way from thinking that all paternalism is OK.  If this was paternalism, it wasn’t the OK sort.

I’d add that what is strange about this particular case is the way that the judge focused on the lack of consultation.  I can’t see how that makes a difference.  Suppose there had been consultation, and the majority of prisoners had said that they approved of supplies from outside being banned?  Well, that still leaves the minority who don’t; and it’s not clear why their desires count for nothing just because more people desire something else.  Moreover, it’s not like one person’s getting goodies sent is antagonistic to another’s desire to eat more healthily.  Those who would prefer not to get stuff sent to them would need a prison policy; couldn’t they just ask their nearest and dearest to lay off the cake-parcels, or throw them out when they arrived?

If you’re going to be paternalistic, at least be clever about it.

*They’d also come up with some notion that chewing-gum could be remoulded as a key.  Seriously.

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