BANGOR – The attorney for a Penobscot County Jail inmate on a hunger strike will argue in court Thursday that his client should be allowed to die.

“He simply wants the opportunity to take his own life by starvation and dehydration,” attorney Dale Thistle, of Newport, said Tuesday.

Thistle will go before Penobscot County Superior Court Justice Andrew Mead Thursday asking Mead to overturn his earlier order to force-feed his client, James Emerson, 23, of Bangor.

Emerson is facing eight years or more behind bars on state and federal charges and has indicated he would rather die than do the time. Tuesday marked the 26th day he has been on a hunger strike during which he has had minimal nutrients.

“It’s a critical point for us,” Penobscot County Sheriff Glenn Ross told the Penobscot County commissioners Tuesday morning. Ross said he will be seeking a third mental health evaluation on Emerson to see whether the weeks of malnutrition have substantially affected his mental capacity.

So far, Emerson has been determined to be competent, and one local hospital has formally balked at the force-feeding procedure.

Last Friday, Mead ordered that Emerson be force-fed, a procedure that involves inserting a tube through the nose into the stomach through which nutrients are pumped.

Medical personnel at Eastern Maine Medical Center declined to force-feed Emerson, and during the weekend, he was returned to a holding cell.

Although Ross has said he still wants to pursue the measure at EMMC, he likely won’t find it any easier at Bangor’s other hospital.

“We do not force-feed patients,” Leanne Woodland, director of public affairs and development at St. Joseph Hospital, said Tuesday. Although the hospital doesn’t have a specific policy in place on force-feeding, it provides care “based on the patient’s permission,” she said.

Thistle wasn’t present for Friday’s informal hearing in the judge’s chambers and on Monday filed a motion to have Mead vacate his earlier decision. The hearing is scheduled for 8 a.m. Thursday in the Penobscot County Superior Court.

Legal counsel representing Ross – who had sought the drastic measure to force-feed Emerson – is preparing a response to the motion.

“The issue presented is whether an otherwise healthy adult has the constitutional right to die by starvation,” attorney Bruce Mallonee of Bangor said Tuesday. “We think that he doesn’t and we think that the law agrees with us.”

Both sides are arguing they have constitutional backing in a case that they said has no precedent in the state of Maine.

Thistle’s argument comes with a twist. Denial of appropriate medical care for inmates has been determined to be cruel and unusual punishment and therefore prohibited by the 8th Amendment, he said. But that’s not what he is contending. Rather, he says that his client has a right to refuse such treatment.

“We are saying we don’t want it,” he said.

What Emerson does or does not put into his body is his choice and a privacy issue, Thistle said.

“No one, not the jail, not the court, has the right to take away from his constitutional right to privacy,” he said.

Mallonee contended Tuesday that Ross had a moral and legal requirement to provide the life-sustaining measures.

“The sheriff is fulfilling his own professional and constitutional obligation to preserve the health of the inmate,” he said.