Segregation – Let’s get it right this time

May 10, 2016

Excerpt from a report by Paul Dube, Ombudsman of Ontario.[1]

“The only way to ensure fairness for segregated inmates is to establish an independent segregation review panel, enshrine procedural guarantees in regulation rather than policy, and establish systematic monitoring of segregation practices. These oversight mechanisms should be combined with an enhanced emphasis on the well-being, treatment, and rehabilitation of segregated inmates”

Mr. Dube focuses on the essential element of any plan to control the abuse of segregation in our prisons.

Independent review was the centerpiece of federal recommendations following the Arbour Inquiry [2], in part into abuses of segregation placement at the Prison for women in Kingston. Madam Justice Arbour was convinced that, absent outside intervention, segregation could become indefinite, harmful and contrary to the objectives of Canadian corrections after an offender had spent 30 – 60 days in segregation.

She recommended:

a)  mandatory referral of cases to the Courts for resolution of segregation placements after 30 days or,

b) if judicial intervention was not accepted by CSC, that an independent arbitrator ( a lawyer) be brought in to adjudicate the need for continued segregation after 5 days of segregation and at 30-day intervals thereafter.

( see her recommendations below, at the end of this post)

The recommendations were declined by the Government and we were left with a system involving no independent oversight or review of any kind, other than access to habeas corpus or other judicial review remedies.

The Correctional Investigator (the federal prison ombudsman) weighed in,  in 2004, expressing dissatisfaction with the status quo and strongly recommending an independent review of segregation in “Shifting the Orbit – Human Rights, Independent Review and Accountability in the Canadian Corrections System” [3]. The Report, which I authored indicated:

We underline our continued support for the Arbour judicial remedy and for judicial involvement, at a reasonable juncture, into decisions on segregation placement.The involvement of the Courts remains, in our view, the surest way of ensuring early and effective declaration of the law and of what must be done to comply with it.

The Correctional Service has rejected all manner of independent review, based on its stated wish to maintain “control and accountability” with respect to segregation issues. The ability to assign decisions to an independent body would relieve the Service from managing its own processes.

Based on this highly rebuttable premise (in my opinion and those of many others more  expert than I) we have seen the use of segregation slip back to a system that is more concerned with pushing aside problems than with human rights. Mentally ill prisoners are unduly isolated, often exacerbating their conditions. Perceived trouble-makers are kept apart, with scarce opportunity and support to permit them to adjust attitudes and succeed in safely reintegrating to the community.

In our Ontario penal system, the attitudes that have led to federal problems are magnified by serious space and personnel issues. Hence, the Ombudsman’s timely and informed recommendation.

We can only hope that some eyes will open this time.

Unfortunately the “small p” politics of control within institutions will probably persist. Staff will not wish, at the end of the day, to lose their grip on an important instrument of control and even punishment

There will also be  “large p” politics. Governments of all stripes in Canada are loathe to upset public perceptions that we must not “coddle” prisoners by taking authority from front-line protectors of public safety. Moreover, if a prisoner is released from segregation against the wishes of prison authorities and a harmful incident takes place, how will that reflect on the Government?

At the end of the day corrections are a matter of achieving goals by information-based assessment of risk. Accepting and implementing this principle takes courage and common sense. Not accepting it leaves the keepers and the politicians comfortable while many prisoners  ( in isolation from reasonable support) become more and more of a risk to public safety.

But I’m not betting the mortgage.

———————————————————————

Here are the Arbour recommendations referenced above

9. With respect to segregation, I recommend:

(a)that when administrative segregation is used, it be administered in compliance with the law and appropriately monitored;

(b)that daily visits to segregation units by senior prison managers be required, and that the discharge of that duty be specifically made part of any performance evaluation of these managers;

(c)that the obligation to conduct daily visits to segregation not be delegated below the level of Unit Manager, or its equivalent, except in very small institutions where, on weekends, this function could be performed by the officer in charge of the institution;

(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;

(g) that failure to comply with any of the above provisions be treated as having rendered the conditions of imprisonment harsher than that contemplated by the sentence, for the purposes of the remedy contemplated in recommendation 8(b) and (c).

End notes:

[1] https://www.ombudsman.on.ca/Resources/Speeches/2016/Segregation–Not-an-Isolated-Problem.aspx

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

[3] http://publications.gc.ca/collections/collection_2007/oci-bec/PS104-3-2004E.pdf

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