“At long last, have you no decency?” – Segregation in Federal Corrections

I will admit that highlighting a question that was used  to impeach Joe McCarthy is a stretch. That said, though,  the question did come up after the good Senator had launched his latest red-baiting attack on a young civil servant, geared to appeal to simplistic voter attitudes.  In return, to protect his client,  counsel Joseph N. Welsh felt the need to call Tail Gunner Joe out, as above.

Perhaps, then, it’s not too much of a stretch.  The decency of the Conservative government is at least an element to be considered in discussing the abuse of segregation in our penitentiaries.

A Brief History of Doing Time 

1. Background

In Western countries segregation  has been used, at times, as the only form of imprisonment. One variation on this theme, considered “progressive” ( compared to quasi- slave labour and transportation regimes), was to place the inmate in a room with his Bible, bed and pot and to let him contemplate his sins and adjust his life. Hence the term “penitentiary”.

At other times, segregation, often in very uncomfortable circumstances ( e.g.” the big metal box”), has been used as a completely arbitrary form of punishment for minor misconduct – as a way of maintaining  authority in the on-going contest for power “inside”.

In Canada a variation was to designate certain institutions, notably Kingston Pen, “Prisons of Isolation”, where prisoners found guilty of serious or repeated misconduct could be sent to sit in silence for some or all of their remaining sentences.

Gradually, in view of the evident harm caused by punitive and arbitrary isolation, and  with the help of some litigation successes,  a few administrative constraints were attached to segregation. For example,  in the 1960’s, regulations were adopted for rudimentary review of placements and for general rights to goods or services in segregation cells.

Generally, though, there were precious few protections available. Places like “the penthouse” in B.C. Pen kept prisoners, naked, with no personal effects, in 30C heat, or the opposite, for months at a time. It was into this system that a young lawyer entered the fray and began to successfully argue for human rights and procedural fairness in segregation decisions. This man, Prof. Michael Jackson, is a legend in the correctional law field and the foremost expert on segregation.

The trend toward humane custody continued. In the 1980’s, partially as a result of major disturbances like the 1975 Kingston Penitentiary riot, leading to reform recommendations from the MacGuigan Committee Report in 1977 [1], the report entitled  “Criminal Law in Canadian Society (Ottawa: Government of Canada, 1982)” was issued. This, in turn, gave rise to a series of papers on correctional law, the Correctional Law Review , which laid the foundation for new legislation.[2]

The review applied a number of court-approved principles on human rights (many pleaded by Prof. Jackson and B.C. colleagues) to the treatment of inmates, including the circumstances of their isolation from others.And the resulting legislative recommendations were a giant leap indeed.

[ Much of the history above comes from Prof. Jackson’s book “Justice behind the Walls” which is available at http://www.justicebehindthewalls.net. I recommend that the reader access this site for a more thorough, and certainly more learned, survey of events]

2. Great expectations – the CCRA

I have been involved in segregation issues for about 25 years. When I was first with the Office of the Correctional Investigator (“OCI”) I sat in on the process leading to the adoption of the Bill that became the Corrections and Conditional Release Act(“the CCRA”) in 1992. I remember sitting at the Committee table while folks like Mary Campbell and Richard Zubriki ( participants in the Correctional Law Review and drafters of the Bill) explained the multi-year research and discussion that had resulted in the segregation provisions in the new Act – legislation that is considered a standard of excellence all over the democratic world.

The Segregation provisions underlined vital principles that not only reinforced years of Court decisions preserving human rights, but also applied proven, sound correctional policy and practice. Among these principles:

  1. Disciplinary segregation (punishment for institutional offences) can be imposed for limited periods, up to 30 days, and only for serious disciplinary offences [1]. Case are heard by an independent chairperson appointed by Cabinet and after a hearing that applies most of the rules of criminal court proceedings, including the requirement to prove the offence beyond a reasonable doubt. ( There is significant debate about the actual independence and fairness of this system but that’s another story).

2.The use of segregation other than for disciplinary purposes (“administrative segregation”), shall only occur where there is “no reasonable alternative” and, specifically, where the prisoner has acted in a way that makes segregation necessary,in order  to ensure:

a) the safety of prisoners and staff (including the inmate who is segregated),

b) the security of the institution

c)  the effective conduct of investigations ( e.g. to ensure evidence will not be         tampered with or informants pressured to change testimony)

These specifics replaced broad and often arbitrary rationales for segregation (e.g. “to preserve the good order of the institution”). The rules also required that the facts behind the reasons for segregation be explicitly recorded.

3.   Segregation will be frequently reviewed by the Warden and higher level officials and the offender will be provided   administrative fairness within the review process. Prior to segregation review hearings they will receive all information to be considered in the hearing and will be given the opportunity to contest this information.

4.  The institution is permitted to conceal from the prisoner only information that it is “strictly necessary” to withhold for safety, security or investigatory reasons.

5.  The institution is required to minimize the period of of segregation. The prisoner “is to be released ……at the earliest appropriate time”.

6.  Under the ambit of:

a) the Correctional Service’s duty to treat inmates humanely and with a sense of dignity and

b) the obligatory to place offenders in the least restrictive custody commensurate with the sentence and the purposes of the CCRA

…. inmates in segregation are to be deprived only of personal effects and access to services that are a necessary result of the confinement and their isolation from interaction with other inmates.

This means that segregated inmates will receive their personal cell effects in a timely fashion (clothing, literature, Television, etc) and will be entitled to participate in work within the Segregation unit and in programs, provided these are feasible.

There was not universal endorsement of the CCRA

The Progressive Conservative Government of the day expressed satisfaction in its adoption but emphasized that the law prioritized public safety and the effective imprisonment of offenders. It was clear that the Government would not hesitate to revise the legislation to reflect public safety concerns, if necessary. To that end, in part, there was provision for a five-year review of the new Act.

Certain correctional advocates, especially Prof. Jackson, were not satisfied with the effectiveness of the segregation review process set out in the Bill.  Prof. Jackson had already proposed a Model Code for segregation, of which the “lynchpin”, in his words, was that there should be independent review of segregation placements at an early stage. He believed that leaving the decision to maintain a prisoner in segregation in the hands of prison authorities, as is set out in the CCRA, would lead to decisions that defer to security and correctional purposes rather than prioritizing consideration of the effects of restrictive custody on human rights.[3]

3. The Cold Light of Day

As time passed it became evident to the Correctional Investigator, to the prison bar, to offender advocate/support groups and to some members of the press that the CCRA rules were being consistently breached by CSC staff, to which abuses managers very often turned turned a blind eye.

Despite frequent complaints by outside counsel and agencies:

  • Offenders were segregated without due cause and often as a quasi-punishment or to induce informing on other inmates.
  • Inmates were kept in segregation for unconscionably long periods without justification.
  • Prison officials were slow to consider reasonable alternatives to segregation.
  • Provision of personal effects and access to programs and to exercise were often restricted.
  • Decision-makers were often impervious to legal and common sense arguments in favour of releasing segregated prisoners.
  • Vulnerable inmates, those with mental health issues or other personality traits that made segregation very stressful, were being segregated when they acted in a manner that caused inconvenience or frustration to staff or other inmates. Mentally ill inmates were not receiving treatment in many cases – they were receiving compounded imprisonment.
  • Failure and delays in providing basic services and effects to segregated inmates were rampant.
  • Violent incidents and excessive use of force occurred at a significant rate.

The promises of the new legislation were not being fulfilled.

It was a matter of time until something happened.

 4. Back to the Drawing Board – The Arbour Inquiry

In 1995, a number of women were essentially assaulted by Officers who were strip-searching them. They were then segregated for long periods without adequate clothes or other effects . In the face of a widely-published video of the strip search and pressures from the Correctional Investigator and inmate advocates the Solicitor General reluctantly appointed Madam Justice Louise Arbour to conduct an inquiry.

Her Report is a milestone in judicial consideration of penitentiary practices, including administrative segregation. (Take the time to read it) [4]

Amongst other things, the Inquiry found that there were significant shortcomings in the Correctional Service’s compliance with the CCRA, the Regulations and policy concerning segregation. She believed that this has a particularly harmful effect on aboriginal people, women and inmates with mental conditions.

Madame Justice Arbour did not mince words in her condemnation of CSC’s record with respect to preserving human rights in the correctional system. She stated:

In terms of general correctional issues, the facts of this inquiry have revealed a disturbing lack of commitment to the ideals of justice on the part of the Correctional Service. I firmly believe that increased judicial supervision is required. The two areas in which the Service has been the most delinquent are the management of segregation and the administration of the grievance process. In both areas, the deficiencies that the facts have revealed were serious and detrimental to prisoners in every respect, including in undermining their rehabilitative prospects. There is nothing to suggest that the Service is either willing or able to reform without judicial guidance and control.[5]

She essentially found that CSC was not capable of dealing fairly or according to the Rule of Law where adequate redress for prisoners was concerned. Only external review by a person not beholden to CSC or government would bring results.

Her recommendations were  somewhat complex. With respect to external review of segregation she imposed thresholds to outside intervention and suggested options for this, recommending:

(d)that the practice of long-term confinement in administrative segregation be brought to an end;

(e)that, in order to so achieve, a time limit be imposed along the following lines:

(i)if the existing statutory pre-conditions for administrative segregation are met, an inmate be segregated for a maximum of three days, as directed by the institutional head, in response to an immediate incident;

(ii)after three days, a documented review take place, if further detention in segregation is contemplated;

(iii)the administrative review specify what further period of segregation, if any, is authorized, up to a maximum of 30 days, no more than twice in a calendar year, with the effect that an inmate not be made to spend more than 60 non-consecutive days in segregation in a year;

(iv)after 30 days, or if the total days served in segregation during that year already approaches 60, the institution be made to consider and apply other options, such as transfer, placement in a mental health unit, or other forms of intensive supervision, but involving interaction with the general population;

(v)if these options proved unavailable, or if the Correctional Service is of the view that a longer period segregation was required, the Service be required to apply to a court for a determination of the necessity of further segregation;

(vi)that upon being seized of such application, the court be required to consider all the components of the sentence, including its duration, so as to make an order consistent with the original intent of the sentence, and the present circumstances of the offender;

(f) failing a willingness to put segregation under judicial supervision, I would recommend:

(i)that segregation decisions be made at an institutional level subject to confirmation within five days by an independent adjudicator;

(ii)that the independent adjudicator be a lawyer, and that he or she be required to give reasons for a decision to maintain segregation;

(iii)that segregation reviews be conducted every 30 days, before a different adjudicator each time, who should also be a lawyer, and who should also be required to give reasons for his or her decision to maintain segregation;[6]

In a nutshell, then, after 30 consecutive days in segregation ( or an aggregate over a year of 60 days), unresolved segregation issues were to be brought before a Judge who would order an appropriate resolution of the matter. Alternatively, she recommended that  independent lawyers take segregation decisions at the regular reviews, and be required to state reasons for decisions. ( I suspect that the reason for this requirement would be to permit judicial review of decisions at an early date, without having to go through the lengthy inmate grievance process.)

CSC reacted to the quite damning Arbour findings and recommendations in characteristic form. It re-wrote and clarified some rules and did an audit. With respect to substantive change, though, it circled the wagons.

6. An aside

At this point the reader may be asking why, even in the face of demonstrated need for change, CSC resisted  it. I suggest that the  answer goes to the very marrow of the power relationship in prison ( and on the streets) between peace officers and criminals.

Like other law enforcement groups, the staff of CSC who deal directly with inmates have a culture of “face”. There is an ingrained attitude among many of the keepers, passed on from generation to generation,  that they are in perpetual conflict with, and danger from, the kept. The proponents of this perspective  expect inmates to engage in misconduct up to and including riots if they are given the opportunity. Accordingly, it is important to the keepers not only that they possess legal tools to maintain security but also that they are perceived as holding ultimate and overwhelming levers in the balance of power. Moreover, it is important that they not be perceived as conceding any of that power. Not just their status but even any perceived relaxation in that status can be interpreted, in their minds, as a sign of weakness, which may provoke disobedience or even violence on the part of prisoners.

Officers live in circumstances of potential violence. Each institution has memorials for officers killed in riots and other incidents. They believe that they, not management, not the Courts and not the public, live in the real world and will suffer the consequences of riots and individual assaults.

They believe that security is best achieved by being respected, often in the sense of being feared, by inmates. They believe that they must be able to nip opposition in the bud and to deal with potential trouble-makers at an early stage. They believe that a certain amount of capriciousness in how inmates are treated will serve as a reminder of who is the boss at the end of the day.

These phenomena have existed in law enforcement, and in prisons, throughout history. It is easy to see and, to some extent, understandable how peace officers as a group come to hold such beliefs. It’s also easy to see how such beliefs can become part of the culture of the group over time – a “code” for those who must “have each others’ backs”.

Another facet of institutional policing is that staff must deal with a variety of prisoners whom they find troublesome, irritating, even if not dangerous. In this category are those with mental conditions that produce irritating behaviours – anger, petty aggression, threats, misunderstanding of simple commands, repetitive actions and speech, unsavoury social habits and the like.

A practical alternative to putting up with such inmates is to remove them from association with staff. Segregation is a good way of doing this. It is not difficult to cite security reasons for removal from population, even where mental health care interventions would be more appropriate in the longer term. As well, putting up with “bugs” could be interpretted as a sign of weakness.

Given this culture, it is not surprising that CSC would resist any changes that would affect their perceived ability to be ultimately in charge.

7. The Administrative Segregation Task Force

While CSC balked at the core of Madam Justice Arbour’s segregation recommendations, that authority over decisions should, to some extent, be removed from the hands of CSC, the Service was willing to take measures “clean up its act”. Nothing unusual here. The history of CSC resembles that of a lot of politically-accountable organizations. There are long periods during which they seem to comply with the rules, occasionally interrupted by incidents where they really drop the ball – such as the Kingston riots in the 70’s, the Prison for Women nightmare, and, most recently, Ashley Smith.

When these bumps in the road occur CSC, as explained above, and generally for reasons of “preserving managerial authority” will conduct audits, punish a few people, undertake to abide by the rules and then go back to business as usually until next time.

As part of its Arbour responses, CSC conducted a very strict compliance audit. It required that, within a few weeks of the audit’s announcement, all institutions be in 100% compliance with law and policy on segregation.

Partially to review the results of this audit, a Task Force on Administrative Segregation was commissioned. The TaskForce also had the mandate to inspect institutions and review policy in order to recommend changes to how segregation was carried out.

The Task Force was chaired by Dan Kane, a very senior operational official and a well-informed corrections expert. Other members included Charles Haskell, a Justice lawyer with experience as a Correctional Officer, Yvan Zinger, of the Solicitor General Secretariat ( who is now the Executive Director/ General Counsel of the Office of the Correctional Investigator) and yours truly, then of the OCI. By far the most interesting member was Prof. Jackson.

As a group we visited many institutions and spoke to hundreds of prison folks. We were able to agree on recommendations that we all believed would be helpful concerning the nature of segregation, the timing of inventions to avoid or to end segregations, and the like.

Where we couldn’t agree was about was where the rubber meets the road – the appropriate decision-maker for segregation. Prof. Jackson, and I (for what it’s worth) favoured judges or independently appointed lawyers, at least after a reasonable period of segregation. The CSC folks were pretty adamant that they needed to retain authority. In part, they said, the intervention of outside authority would somehow undermine the willingness and accountability of CSC actors in managing the process.

I never really understood why, on its face, they thought this would be the case. to me, the spectre of outside intervention would encourage CSC officials to take proper decisions at an early stage. I had suspicions about the real rationale for CWC’s position.

At the end of the day, well, I learned a lot; we succeeded in bringing minor changes to the process Then it was back to business as usual.

Subsequently, Michael Jackson continued to advocate for independent review, of whose value he was even more convinced than ever. I, and the OCI, promoted independent review at very opportunity.

To no avail in both cases.

8. Ashley

I won’t belabour this case. People are well aware of it. An uncooperative, troublesome, mentally ill offender is maintained in segregation for long periods and not sent to a mental health facility as she should have been. Finally, she kills herself while staff watch rather than “encourage her bad behaviour” or some such bullshit.

New recommendations arose from the coroner’s inquest, including keeping vulnerable offenders out of the hole and placing them in treatment facilities, as well as simply ending segregation after 15 days in most cases.

Guess what?

CSC provided vague answers and reassurances and purported to be doing all kinds of investigations and audits. Nevertheless they decided they needed to be able to keep mentally ill offenders isolated  as a function of their ability to maintain security.

At the end of the day they must hold the key.

Again, this cries out for somebody outside CSC’s realm being able to say “enough”, either statutory restriction on segregation or review by an outside authority,  and it doesn’t look like it’s gong to happen anytime soon.

Again, it looks like we will stumble along until the next outrage.

9. What is needed

I think CSC has demonstrated that, left to its own devises, it is likely to err on the side of security and against personal liberty every time. I think that CSC will often use what is ultimately a very blunt instrument in a rather arbitrary fashion unless and until it is taken away from them.

Prof. Jackson continues to assert that, properly apprised of the circumstances in any one case, a superior court judge will be able to decide that a person needs to be out of a little box.

I agree, but my recent experience leads me to think that there will have to be  legislation to ensure that the Courts can and do exercise their authority in a full-fledged fashion.

By this I mean that the Courts tend to grant a good deal of deference to prison officials where they are taking decisions related to the administration of institutions. I.E. they will review CSC decisions on a standard of “reasonableness”, not substituting their decision for the CSC official unless it is clearly not supportably on the evidence. Only where the statute is very clear, and where a breach of those clear rules has taken place, will the Courts review on a standard of “correctness” substituting their decision where the administrator has broken the black letter rules.

It is only in the latter scenario  that I believe the Courts will be able to provide a consistent remedy about abuse of segregation.

Accordingly, there needs to be detailed and clear legislation that spells out detailed and clear limitations on the authority to isolate prisoners – criteria based on times limits and on whether treatment or other options are to be applied. As well, legislation needs to require early legal representation  and to put a fair process in place in order to ensure that all relevant facts are brought before a Judge at the earliest reasonable time. Failure to comply with any of these conditions should, in effect, oblige the Court to intervene and to end the isolation.

CSC and the government needs to start acting, as Madam Justice Arbour would say,with respect for the rule of law.

We need to talk. Really talk. Not what we have been doing for at least 50 years – with catastrophic results.

 

[1]http://www.johnhoward.ca/media/(1977)%20HV%209507%20C33%201977%20(MacGuigan).pdf 

[2]http://www.naacj.org/en/pdf/res_influences_canadian_correctional_reform.pdf

[3] Justice behind the Walls, above, at Section 2.1

[4] http://www.justicebehindthewalls.net/resources/arbour_report/arbour_rpt.htm

[5] Ibid section 3

[6] Ibid, Part IV, Recommendation 9.

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