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Lisa Kerr, Assistant Professor, Queen’s University Faculty of Law
(2015) Queen’s Law Journal, Vol. 40, No. 2, 482-530
Excerpt: Introduction, Sections II & V
[Footnotes omitted. They can be found in the original via the link above]
There are always two deaths. The real one, and the one people know about.
—Jean Rhys, Wide Sargasso Sea (1966)
A prisoner in isolation or solitary confinement spends the vast majority of the day locked inside a prison cell. Social, occupational and sensory experiences are highly curtailed, if not completely denied, creating a profoundly more intense punishment than time spent in the ordinary prison community. Isolation can have negative consequences on the health, well-being and future prospects of prisoners subjected to it. Despite these risks, prison managers maintain that easy access to prisoner isolation is a necessary and legitimate tool to preserve security in high-risk institutions. The practice has emerged as one of the most salient subjects of debate in contemporary penal policy.
Prisoner isolation is a powerful example of a prison’s ability to “modulate” the severity of a judicially imposed sanction. Michel Foucault points out that while it is a legal decision that generates a criminal penalty, prison officials—not the courts—control “its administration, its quality and its rigours”. Notwithstanding its intensity and effects on prisoners, isolation falls within this administrative framework. Legal systems have generated rules to control, to some extent, the administration of this form of confinement. In the United States, legal limits on prisoner isolation are largely the product of litigation, whereas the Canadian scheme arrived through legislation. While the US and Canada have distinct constitutional traditions, penal histories and practices of isolation, the formal legal controls of the two countries’ systems share striking similarities. Both preserve a core level of power for prison officials, who can effectively modulate the severity of a prison sentence by isolating prisoners for indefinite and prolonged periods of time. This article will engage with the practice of prisoner isolation in both jurisdictions and analyze the prospects of using litigation to achieve reforms in the Canadian context.
Part I sets out the legal, historical and political background of each country on the subject of prisoner isolation and justifies a comparative analysis. Part II describes the common elements of prisoner isolation in its contemporary forms and sets out two prominent critiques of the practice: its effects on mental health and its tendency to be overused. Part III describes the law and practice of prisoner isolation in Canada, where indefinite isolation is known as “administrative segregation” and is prescribed by federal legislation. Part IV sets out American litigation reform outcomes to date. US federal courts have granted relief in many cases, but have limited the scope of protection to the seriously mentally ill and have stipulated only minimal due process controls on solitary placement decisions. Part V analyzes the prospects of using litigation to reform prisoner isolation in Canada by drawing lessons from the US experience, where litigation has brought hidden practices to the public’s attention and awoken moral sensibilities, sowing the seeds for negotiated reform with elected officials and correctional administrators.
There are signs of change. The American system has taken some small steps toward the difficult process of dismantling the super-maximum security (supermax) regime, and has started to shine a light on the notoriously secretive practices of solitary housing at regular maximum-security state prisons. There is newfound doubt about relying on long-term isolation as a legitimate means of administering state punishment. Increasingly, the question in the American system is how to end the practice rather than whether to end it. Amidst depressed state economies, a national policy conversation has ignited about whether to retain expensive practices of prisoner isolation. In a remarkable reversal of trend, states are considering closing supermax prisons or having them repurposed to maximum-security institutions.
Canada has seen progress too. The Correctional Service of Canada (CSC) now accepts that long periods in segregation are not conducive to prisoner health or correctional goals—these facts are not in dispute. But Canada has not yet benefited from proactive leadership within corrections in terms of concrete reforms, and the turn to litigation is intensifying. In January 2015, comprehensive Charter challenges to the legislative provisions on administrative segregation were filed in British Columbia and Ontario. Within days of the BC filing, CSC Commissioner Don Head issued a statement to the media that the CSC was considering a “new model” for segregation. The official CSC position remains, however, that “the term solitary confinement is not accurate or applicable within the Canadian federal correctional system”—a disavowal articulated in the same report that explicitly refuses to place any time restrictions on the practice. Media coverage has embodied what seems to be sensible doubt that the CSC does not engage in a practice that it refuses to reform. As these proceedings unfold, Canadian law reformers can harness the expertise and energy emerging from an American-based, but increasingly global, social movement contesting solitary confinement. The question remains whether the Canadian judiciary will intervene to effectively end reliance on indefinite and excessive prisoner isolation.
II. Common Elements and Critiques of Prisoner Isolation
Prisoner isolation must be understood in contrast to life in the ordinary prison setting. Prisoners in general population have some measure of free movement, social interaction with peers, access to programming and are able to spend much of the day outside of their cells. Solitary removes individuals from this ordinary constrained liberty and imposes stigma along with isolation. Canadian Supreme Court Justices Wilson and Cory emphasized the significance of the treatment in a 1990 case about whether solitary is a “true penal [consequence]” sufficient to attract criminal procedural protections under the Charter. They dissented from a majority holding that characterized solitary as a benign administrative measure, observing: “The complete isolation of an inmate from others is quite different from confinement to a penal institution where some form of contact with people both inside and outside is the norm. Close or solitary confinement is a severe form of punishment.” Similarly, as Kennedy J of the US Supreme Court said in a 2005 review of a supermax prison: It is “more restrictive than any other form of incarceration in [that state]”.
The isolation of prisoners is a standard managerial technique that can be used for a range of legitimate reasons, including: to separate prisoners who have a conflict with one another; to provide temporary protection for prisoners who are vulnerable in the open population; and to isolate those with communicable diseases. Sensible critiques do not contest these limited, legitimate uses. In appropriate cases, physical separation should be imposed during the time required to make an alternative arrangement, like an appropriate transfer or the delivery of healthcare. Critique of prisoner isolation is driven by the more problematic aspects of the practice that defy justification: the isolation of the mentally ill; isolation for petty reasons; indefinite isolation; isolation in lieu of appropriate safety measures; isolation to address overcrowding; isolation for excessive periods of time; lack of procedural safeguards for decision making and reviews; isolation in punitive conditions of confinement; failure to deliver meaningful mental and physical health care; and a lack of programs and social contact to ameliorate the effects of isolation. Such risks of abuse are inherent in the legal frameworks that currently govern the practice.
A formal distinction between administrative and disciplinary segregation appears often in prison codes and in the minds of prison officials. In one form, solitary is known as “administrative segregation” and is officially imposed on the basis of general managerial rationales, like protecting the “safety and security” of the institution. Prison officials typically maintain that this administrative form of segregation is “not punishment”, though critics point to an unmistakable punitive and control function, and identical conditions of confinement. In its other form, solitary confinement is a formal part of institutional discipline. Disciplinary segregation is used to punish prisoners for violating specific prison rules, and prisoners facing disciplinary segregation in Canada are afforded important legal entitlements. By contrast, administrative segregation can be imposed with little process, for indefinite periods of time and often for highly general reasons that prisoners do not know in advance. Administrative segregation and other forms of long-term solitary are prone to particular forms of abuse and have been scrutinized in the US and Canada in recent years. What follows is a brief review of these critiques.
A. Isolation Targets and Triggers Mental Illness
The most common critique of solitary confinement concerns its effects on mental health. In 1997, Craig Haney and Mona Lynch surveyed the historical and contemporary literature on the experiences and effects of prisoner isolation, finding “strikingly similar negative psychological effects” in various confinement settings, including “anxiety, panic, rage, loss of control, appetite and sleep disturbances, [and] self-mutilations”. More recent evidence indicates that even small doses of prisoner isolation can pose significant threats to mental health. These effects can be particularly severe where it is used for long periods, on vulnerable prisoners, and where ameliorative features are not in place. US federal judges have repeatedly cited expert evidence to conclude that solitary can cause mental harm. The US government has even agreed that the effects of solitary can be grave when used on those who are already mentally ill.
The concern about health effects reached a new pitch in 2011 when the United Nations Special Rapporteur on Torture unequivocally concluded that “solitary confinement is a harsh measure which may cause serious psychological and physiological adverse effects on individuals regardless of their specific conditions”, and that the practice is “contrary to one of the essential aims of the penitentiary system, which is to rehabilitate offenders and facilitate their reintegration into society”. The UN report found that solitary should never be used on the mentally ill, juveniles or those in pretrial confinement, and that the practice amounts to torture when it extends beyond a fifteen-day period for any person. The law and practice in the US and Canada does not come close to abiding by these recommended standards.
Rather than being protected from such high-risk treatment, mentally ill prisoners are likely to be targeted for a solitary placement. This is because they often struggle to adjust to prison life and may exhibit symptoms that are mistaken for behavioural defiance. These groups are also difficult to house elsewhere in the prison, and yet their struggles only intensify in segregation. Not only does mental health erode in the highly non-therapeutic conditions of segregation, segregated prisoners often become increasingly unable to meet the behavioural standards required for release. Contrary to popular misconception, segregation units of American prisons are “full not of Hannibal Lecters”, but of the “young, the pathetic, the mentally ill”. As a result of structural realities, solitary is a technique that is often used by prison officials to punish and contain the irritating and the unwell.
B. Overuse Is a Feature of Isolation
The second prevalent critique concerns the application of long-term solitary to an ever-growing cohort of prisoners, often on flimsy grounds. During the time that supermax prisons were built, the use of administrative segregation also expanded within ordinary high-security prisons, in wings known as special housing units (SHUs). Approximately 80,000 US prisoners are thought to be in long-term solitary, with 25,000 in supermax and the remainder in SHUs. Guards’ unions and prison administrators justify supermax and other forms of administrative segregation as a means to control prison violence and disrupt gang hierarchies. In practice, however, these institutions have grown beyond their original purposes. Prison officials operate under flexible standards without independent oversight, and line officers lack incentives to manage complex situations without simply resorting to isolation.
Overuse also has a political economy dimension. In some states, the motivation to build supermax prisons was a political decision, rather than an actual need within corrections. Chase Riveland, the former Secretary of Corrections in Washington and Colorado, has explained that supermax prisons became “political symbols of how ‘tough’ a jurisdiction has become”. In order to achieve economies of scale, the state may build more isolation cells than are required, simply because it is more cost effective to build a 500-bed facility than a 100-bed unit. Once built, the system tends to be motivated to fill these costly spaces.
In one prisoner lawsuit, evidence emerged that wardens in Wisconsin requested the addition of 25 segregation cells to the 4 major adult male institutions to deal with the most “dangerous and recalcitrant inmates”. Instead of delivering upon that request, the governor and legislature chose to build a 500-bed supermax.
While rising violence in American prisons precipitated the rush to supermax styles of confinement, Roy King concludes that the use of supermax custody today has become, at best, “a pre-emptive strategy that is almost certainly disproportionate in scale to the problems faced”. At worst, it is a “routine and cynical perversion of penological principles”. Forty-four American states now have a supermax facility, although King points out that it is possible that some states chose to define some of their accommodation as supermax so as not to appear out of step. It is highly improbable that states as diverse as Maine, Connecticut, Virginia and Nevada all require regular reliance on supermax confinement. It is highly doubtful, for example, that the problem of prison gangs in each of those systems is comparable to the serious gang problem that troubles the prison system and motivates much of the reliance on segregation in a state like California.
Even outside supermax, long-term solitary has been extended to petty wrongdoers convicted of minor disciplinary infractions. A 2012 New York Civil Liberties Union report concluded that the “SHU sweeps in a wide swath of prisoners” for “prolonged periods of time for violating a broad range of prison rules, including for minor, non-violent misbehavior”. In Colorado, a legislature-sponsored study concluded that the state was overusing solitary and that only twenty-five percent of prisoners in extreme isolation had been placed there for injuring prisoners or staff, which was the original rationale for the unit. These risks are now well understood even from within corrections, as one US government report observed: “Pressures will always exist to send troublesome inmates to an [Extended Control Unit (ECU)] and keep them there. Unless the keepers of the keys to both the front and back doors of the ECU make their decisions carefully, the unit can quickly fill to capacity, with very little turnover.”
Most American prisons are under state control, and only recently has an effort been made to comprehensively collect state policies on segregation. In 2013, the Arthur Liman Public Interest Program at Yale Law School published a report collecting the state and federal policies related to SHU placements. It concluded that most segregation policies are marked by shared characteristics: vagueness and overbreadth in the reasons that may authorize isolation. The policies invariably cite the general category of the “safety and security” of inmates and staff, just like the Canadian legislation. The breadth of these policies ensures that prison officers have wide discretion, which feeds a common concern that solitary is often imposed not for legitimate security reasons, but because the officials are frustrated with or “‘mad’ at a prisoner”. Since prison employees have personal experience with prisoners, the possibility is raised that errors, resentment and laziness may find their way in to placement decisions.
Under the highly general standards in both US and Canadian law, the classification criteria used to place prisoners in segregation capture a wide range of prisoners, including those with petty behavioural difficulties and those with mental illness. In the contemporary penal context, prisoner isolation is a technique that will be chronically vulnerable to proliferation and overuse.
V. Analysis: Litigating Prisoner Isolation
Between 1995 and 2000, the number of US prisoners held in segregation increased forty percent nationally. The narrow scope of judicial intervention into prisoner isolation may partly explain why litigation did not secure abolition nor seem to impede its growth during this period. In 2013, the Liman Report revealed how, along with disciplinary and voluntary segregation, all of the forty-seven American jurisdictions studied provided for some form of administrative segregation. The policies share the same basic features: “a non-punitive purpose open-ended duration, close confinement, and restricted activities and social contact”. From this angle, it appears that solitary proliferated despite litigation. Keramet Reiter’s research goes even further to suggest that limited judicial intervention on prisoner isolation in the 1960s and 1970s may have contributed to the modern supermax, as department of corrections officials designed “constitutional” modes of segregation in response to legal challenges.
The spectre of unintended consequences of litigation has surfaced in Canada too. In 2011, a Charter claim challenged an extreme form of long-term solitary used on female prisoners. In response to the public criticism that preceded the lawsuit, the CSC suggested building the first supermax prison for women. It reasoned that a supermax for women would allow the prison to address the resource-intensive challenge of delivering extreme isolation within an ordinary maximum-security facility. Rather than removing the small number of segregated women who were draining resources, the CSC sought to solve the problems associated with long-term segregation by building a dedicated facility. This response indicates that the threat of litigation can cause prison officials to react defensively and attempt to fix a perceived problem without addressing the human rights concern at the core of critique.
On the more positive side, more recent litigation has generated settlement discussions and agreements to remove large numbers of prisoners from isolation in several states. In Mississippi, for example, a collaborative process emerged out of American Civil Liberties Union litigation. Mississippi transferred more than seventy-five percent of its isolated population back to the general prison population after an external expert conducted a comprehensive file review and concluded that it was safe to implement the transfers. Prison administrators in Mississippi “eventually welcomed the changes demanded by the plaintiffs in a series of class-action lawsuits, which cleared the way for the changes to be put into effect in an atmosphere of strong collaboration”. Two levels of collaboration emerged out of the Mississippi litigation: Expert witnesses effectively became consultants to the prison, and enhanced collaboration between custody and mental health staff followed.
The US experience makes clear that a final legal judgment may not be the only or even the central goal of litigation: Equally important is how the legal process can generate access to an institution and put pressure on prison administrators to review their practices. The following two sections emphasize two more general dimensions of the isolation issue: the way that litigation can spark a public conversation about penal practices, and the significance of the form of judicial remedies.
A. Mobilizing Public Sentiment
The history of punishment displays a clear relationship between punishment methods and evolving moral attitudes. According to Philip Smith, penal measures are shaped not only by their instrumental uses but also by public sensibilities. For this reason, there is often a battle for meaning between the official account of a practice and the public perception of it. For example, reliance on the electric chair ended for cultural reasons because of a cultural “sea change” that was “grounded in visceral imagery and the use of a set of bodily signifiers”. Through photographs of botched executions, the electric chair came to symbolize a disturbing excess of violent state power, rather than delivering the deterrent message that the state intended with capital punishment. The legal system moved away from this mode of execution when it began to produce more social disorder than reverence for sovereign power. Once the executioner lost control of the narrative of his work, the door opened to formal reforms.
Extreme forms of solitary confinement are, like executions, meant to punish, deter and control social disorder. However, like executions, solitary is a mode of punishment that is vulnerable to reform based on excess and dysfunction. As Smith notes, solitary can itself produce new forms of disorder, such as causing or aggravating mental illness, and in this way “its very austerity has been renarrated as a marker of excess”. This may explain why reform efforts and judicial interventions have proceeded largely out of a concern for mental health. The potential for reform arises where practices collide with the modern emphasis on human dignity, as “punishments have increasingly needed to preserve the dignity of the individual, and so authorities have become acutely sensitive to problems of meaning in this sphere”. Prisoner isolation is a striking example of a practice that has become incongruent with cultural values, and courts are the appropriate forum in which to demand a response.
The values at stake in prisoner isolation have changed over time. Earlier modes of isolation, such as those relied upon in nineteenth-century prisons, were thought to induce moral reform in the prisoner. David Garland explains that careful prison architecture and rigorous silence was thought to catalyze contemplation and to “allow essential reason to prevail” and thus enable the prisoner to return to productive society. In this paradigm, prisoners are rational actors who can be rehabilitated and returned to productive society. The practice had a positive penal purpose, which was only challenged once evidence began to undermine that narrative.
Contemporary modes of prisoner isolation garner more complex reactions than the nineteenth-century version, given that prisoners in supermax and other forms of extreme isolation are not treated like salvageable subjects. Today’s isolated prisoner represents a set of risks to be minimized by advanced technologies of separation and exclusion. Particularly given what we now know about the negative effects of isolation, it is difficult to construe the practice as a reformist endeavour. As Sharon Shalev puts it: “Unlike their earlier incarnations, supermax prisons do not officially endeavour to reform, rehabilitate, change or ‘correct’ prisoners, and their design is not meant to shape prisoners’ morality, but to control them and their environment to the greatest degree possible.” Shalev notes that “[t]he language of control is now articulated in bold, unapologetic terms”, and the language of reform is largely gone.
The upshot is that the familiar ways of construing the penal system—as a means to achieve retribution or ensure public safety by deterring or otherwise preventing crime—no longer apply. Sharon Dolovich argues that, while every polity that incarcerates as punishment must remove and restrain those who are sentenced to prison, the American system, exemplified by the supermax prison, is driven by “exclusion and control” rather than the more familiar or official purposes of punishment. Zygmunt Bauman suggests that earlier models of solitary were “factories of discipline” designed to inure potential workers to the habits of modern industrial labour. Today’s models, by contrast, are “factor[ies] of exclusion”, designed to contain and permanently exclude a category of workers who have become extraneous to contemporary labour markets.
Legal claims that contest solitary confinement are driven by a notion that the practice is inhumane and excessive; that isolation represents a denial of human worth and the social experience that is basic to human health. The public conversation that has unfolded alongside litigation has helped announce and affirm those values. In 2009, physician and journalist Atul Gawande generated widespread attention with his 2009 New Yorker piece asking whether solitary confinement is torture. In 2014, Colorado Commissioner Rick Raemisch followed in the footsteps of charismatic leaders on solitary in that state by spending a night in solitary, and then wrote about his experience in the New York Times. In 2012 and 2014, experts testified before the United States Senate Judicial Committee, with Senator Dirk Durbin leading a push for national law reform on these issues. After facing multiple lawsuits, states as diverse as Maine, Colorado and Mississippi have elected to drastically reduce their reliance on solitary.
A social movement has coalesced around solitary confinement because the harm and disorder of exclusion from community is contrary to contemporary values. There is a risk, however, that active democratic dissent can be transformed and muted by courts through proceduralism and discrete exemptions, so as to defer to prison administrators and permit the practices they deem essential. To date, formal legal outcomes in US courts have delivered marginal improvements but have not responded to that core concern about exclusion. A successful challenge will depend on understanding these obstacles. At this stage, the question therefore arises as to what legal remedies might be helpfully, or unhelpfully, deployed in the legal movement against solitary.
B. Changing Values and the Question of Remedy
Insight into the effects of partial or inadequate judicial intervention can be drawn from David Garland’s study of the American death penalty, which asks how decades of reform work failed to achieve the abolition of capital punishment. As one part of his explanation, Garland points to the difference between civilizing and humanizing sentiments, and their distinct impact on legal development. These two categories of sentiment have distinct sources and sites of concern. For example, civilized sensibilities try to reduce the violent imagery involved in putting a person to death. By contrast, a humanitarian norm objects to the unnecessary human suffering that capital punishment delivers. The difference between these two norms is clear: “One aims to reduce the sight of pain, the other aims to reduce its infliction. One is primarily about manners and appearances, the other about underlying moral substance.” While these two sentiments often appear and run together, they are distinct and will eventually demand different remedies. For example, some US Supreme Court justices are concerned with execution methods from the perspective of the visual experience of the audience, while others are concerned with the effect of an execution method on the actual experience of the condemned person.
These two distinct norms also appear in the legal developments that respond to contemporary practices of prisoner isolation. Civilizing sentiments have motivated reforms that are associated with the vision of a floridly mentally ill person, alone in a cell and getting worse. The result is special protections for the seriously mentally ill. Similarly, civilizing sentiments might demand the rule of law in the administration of segregation, with the result of improved procedural controls. A humanizing sentiment, by contrast, would focus more on the disorientation and fear experienced by any individual indefinitely placed in segregation, as well as the declining health associated with removing a prisoner from meaningful social interaction. These are risks faced by all segregated prisoners regardless of the reason for their separation or their personal circumstances. With these distinctions in mind, reformers must seek reforms that will humanely control the actual experience and effects of all instances of prisoner isolation.
In Canada, plaintiff’s counsel should seek a declaration that the administrative segregation provisions of the CCRA are inconsistent with the Charter and thus void. While the task of redrafting legislation belongs to Parliament, counsel should press the court to specify that a constitutionally compliant scheme requires time limits and external oversight. Several acceptable alternative models have been articulated in the literature, and the Coroner’s Inquest into the death of Ashley Smith echoed many of these longstanding recommendations. A court might specify that a Charter-compliant scheme would include limiting features such as: (1) approximately 30-day time limits on separation, within which the prison can decide whether and how to arrange a transfer, dispute resolution, enhanced supervision protocols, medical treatment or other technique to facilitate return to the ordinary prison community; (2) a requirement that the prison obtain a court order for any separation that extends beyond the prescribed time limit; and (3) an independent, external authority to review placement decisions, conduct regular inspections of segregation units, and ensure the provision of ordinary programming and health care to segregated prisoners.