The Correctional System – Can we make lemonade out of C-10 ?

The  Safe Streets and Communities Act has become despite the criticism of many criminal justice experts from a wide range of perspectives. Now that the Government has provided red meat to its most conservative core, what can be done to mitigate the disastrous effects of the legislation on effective corrections and public safety?

Well, one positive side-effect of  the C-10 debate was that a number of important corrections problems and solutions were raised in critizing the focus on retribution of the omnibus bill. The arguments were ignored in the quick-passage frenzy, it is true, but they did gain a hearing in the media and on the Hill.  Most of the proposals did not directly contradict the  the C-10 measures. Rather they pointed out the crucial needs that C-10 ignores – needs that will be  exacerbated by the prison population increases resulting from C-10.

Ironically, as time goes on, the draconian legislation might make it timely and opportune to discuss real reforms. As prison  and community release conditions become more and more stressful and even dangerous, the Government might be compelled to live in the real correctional world. Common sense measures to reduce populations and combat recidivism will have to be considered. In this respect I am encouraged by the continuing presence and forceful arguments of organizations such as The Smart Justice Network, which  provide sane solutions to the ideological mess that is coming from the Public Safety ministry.( see  http://www.facebook.com/pages/The-Smart-Justice-Network-SJN/244699935581573)

Here are  just three issues and responses that might be re-visited in coming months and years.

Mentally ill offenders

Few will dispute that, following the de-institutionalization programs of the Provinces, the mentally ill have become a major consumer of our prisons’ hospitality. As recently stated in the Globe and Mail “[m]ore than one in 10 men and nearly one in three women held in federal prisons have mental-health problems, according to 2009 figures from the Correctional Service of Canada. Those numbers represent a near-doubling in the total proportion of inmates with mental illnesses between 1997 and 2009“. Few will dispute that mental health treatment should not be carried out in the prison environment, with its punitive, potentially violent atmosphere and its emphasis on custody and regimen. Few would contend that untreated offenders leaving institutions will make the public safer.

Yet we persist in trying to carry out treatment and programs in penitentiaries or simply in leaving inmates to grow more ill in prisons, often in segregation and “special needs” warehouses. Moreover, as populations grow under C-10 the ineffectiveness and damage of commiting sick people to goals will worsen . According to Statistics Canada, from 2000 to 2010, 1/3 of arrested people who had mental health problems had previously been convicted of violent offences. In other words, lack of treatment permits violent re-offending.

The Government brushed aside the mental health conundrum during the C-10 debates, saying that mental health care was up to the Provinces. The obvious irony of this approach is that, by committing the mentally ill to federal custody, the Government relieves the Provinces of their health care obligations.

While the Government seems bent on maintaining stricter and more mandatory sentencing, however, with little or no consideration of the individuals involved, this does not mean that the locale and nature of confinement while under sentence could not not modified. Through exchange of service agreements with the Provinces, for example, ( agreements which are already recognized in federal legislation) convicted people could be housed in hospitals and, but for the fact of being under sentence, could enjoy the same rights and opportunties as do patients under Provincial health service regimes.

Alternatively, through minor amendments to corrections legislation, which currently permits escorted temporary absences and work releases, sojourns in provincial hospitals could be permited for therapeutic purposes. as well, supervision and care while under conditional release could be delegated to community health care agencies.

Alternatively, the structure and operation of psychiatric institutions within the correctional system could be modified to place patients more completely under the care and custody of health care professionals, and not primarily under the authority of security staff as is the case currently.

Any of these options would improve the lives and futures of mentally ill prisoners. Any of them would make communties safer. None of them requires the government to step back from the C-10 catechism.

Substance abuse and communicable diseases

A recent briefing paper from the Canadian HIV/AIDS Legal Network [http://www.aidslaw.ca/ ] reiterates the long-standing acknowledgement by the Correctional Service of Canada (CSC) that drug use is far more  prevalent in prisons than in the community – 40% of prisoners have admitted using, 11% via injection . The paper indicates a high incidence of prisoners using injections for the first time in prison and a high rate of HIV infection “inside” – 37% in a recent study.

This near plague is further spread by contact between prisoners and visitors during conjugal visits and by interaction in the community when, as is the case with the vast majority of prisoners, inmates are released.

Despite ample evidence that harm-reduction strategies such as needle exchanges and a treatment-centred approach are effective means of dealing with prison substance abuse, the Government has required CSC to persist in a policy of preventing the introduction of drugs into prisons. This has been a failed policy just about everywhere it has been made the exclusive means of combatting drug and alcohol abuse.

It seems clear ( see the HIV/AIDS Legal Network paper) that mandatory sentences simply increase drug use and infection in prisons . The new approach in other jurisdictions is to establish diversion mechanisms such as “drug courts” , which treat addicts rather than simply punish them. Neverhteless  our Government has introduced a mandatory sentence policy with no recourse to diversions.

Given the prison population increases that will occur under Bill C-10, combined with the persistence of “zero tolerence” approaches, how do we prevent the continued sentencing of criminals, and later families and communities, to disease?

The principal approach must be to change the thrust of substance abuse policies. Currently CSC spends huge amounts of money on security measures intended to detect drug use, confiscate drugs and punish dealers and users. Ion scanners, urinalysis, searches, interception of communications, drug dogs, higher walls to prevent “throw overs”, prohibition of internet use – the list goes on and on. On the other hand, measures to deal with substance abuse as a health care issue receive relatively paltry resourcing. Moreover, prisoners find that therapies and programming are often interrrupted, reduced or eliminated in the face of security “concerns”.

Rather than simply attempting to interdict drugs and to deny and sanction their use by offenders, the main themes of CSC policy must include objectives that have heretofor been afterthoughts at best. It is timely for the Government and CSC to step back and to examine how prevention, treatment and harm reduction can be included and funded in the policy equation on substance abuse. This process of re-examination should begin with a very transparent, multi-jurisdictional consultation,  not just of security representatives but also of experts in addrressing substance abuse and people who have successfully addressed their own issues in a criminal justice context.

The central question of the consultation would be – how do we reduce the number of current and potential drug and alcohol users and the incidence of drug-related disease, in our prisons? Enforcing current legislation and interdicting drugs would be an important, but not overriding, consideration.

The central response would be to move from a security/enforcement model to a treatment model. In the latter context, the the confidentiality of the medical relationship would permit protection of information disclosed by prisoners in seeking and undergoing treatment while maintaining respect for law and security issues. In essence, prevention, harm reduction and treatment measures could exist as an “island” in the lake of enforcement and  denunciation.

If  this functional separation were fully resourced much would be possible. New facilities and enhanced therapies could be estabished to prevent and treat substance abuse. Enhanced harm reduction strategies that would prevent diseases could be implementedin conjunction with health services that would promote voluntary treatment .  Policies which demonstrably guarantee privacy in the circle of care would lead to greater and greater prisoner  confidence in disclosing abuse and disease problems. At the same time, positive and negative consequences could be applied to prisoner behaviours concerning subtance abuse. Better access to lower security institutions, earlier parole, more access to programs and privileges, measures already commensurate with CSC drug, security and rehabilitation strategies could be employed in a meaningful fashion, based on real, expressed prisoner needs.

Aboriginal offenders

Aboriginal people represent about 20% of Canada’s prison population. Aboriginal people represent 4% of the population as a whole.

What’s wrong with this picture?

In 2009 the Correctional Investigator ( Canada’s prison ombudsman) issued a special report [http://www.oci-bec.gc.ca/rpt/oth-aut/oth-aut20091113-eng.aspx] which indicated that, despite CSC efforts to address aboriginal persons’ needs,

on comparison, Aboriginal offenders tend to be:

  • released later in their sentence (lower parole grant rates)
  • over-represented in segregation populations (solitary confinement and protective custody)
  • more likely to have served previous youth and/or adult sentences
  • more often held to warrant expiry (end of sentence)
  • classified as higher risk and higher need
  • more likely to reoffend and have their conditional release revoked more often.

In other words, as a CSC veteran once told me, at every juncture where something bad can happen, it happens more to First Nations, Metis and Inuit offenders – and for women aboriginal prisoners it’s even worse.

The effects of C-10 on this pre-existing trainwreck are obvious. Minimum sentences for drug trafficking and cultivation, especially in organized crime circumstances, will put a lot of young gang members away for a long time. The already disproportionate incidence of subtance abuse issues in prisons will expand geometrically.

Measures are already possible under current legislation to address the problem.

As the Correctiona Investigator’s Report indicated, CSC could

  • increase the  use of legislative provisions designed to enhance Aboriginal reintegration, including under-utilization of Healing Lodges
  • increase the availability of Elders and dedicated Aboriginal program delivery officers
  • facilitate  access to Aboriginal programming in all regions and at all institutional security levels
  • work with other jurisdictions and with offenders to establish an effective  Aboriginal anti-gang management strategy
  • create an Aboriginal-sensitive classification instrument that will take into account the culture of aboriginal prisoners in placing them in institutions
  • develop and record useful statistical evidence indicating progress or improvement in managing Aboriginal offenders
  • increase  capacity to address the unique social and historical circumstances contributing to Aboriginal offending
Apart from requiring new resources, the new Act  precludes none of these measures. In fact the legislation  makes the measures even more urgently needed.
There are many more areas where we could address C-10 harm by using common sense. To name a few:
  • obstacles facing women offenders
  • coordination of effective community programs
  • the issues facing sex offenders
  • overuse of admnistrative segregation
  • access to computers and  other current technologies
  • fairness and legislative compliance in parole decision
The point is that the iron is hot ( well a little warmer than usual) and we should not lose the opportunity to effect change.
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