An­other step to end­ing soli­tary

The Globe and Mail (BC Edition) - - OPINION -

Good lawyer­ing of­ten in­volves stretch­ing the shape of words and al­ter­ing their shade to tilt ar­gu­ments in one’s favour. Some­times the re­sults are un­in­ten­tion­ally com­i­cal, such as this week when a fed­eral lawyer stood in On­tario Su­pe­rior Court to pro­claim that Ot­tawa does not, in fact, use soli­tary con­fine­ment in fed­eral pris­ons.

Be­liev­ing that re­quires a vir­tu­oso level of pars­ing. No at­tempt to ar­gue that Ot­tawa’s evolv­ing pol­icy no longer rises to the pre­cise United Na­tions def­i­ni­tion of soli­tary can change the fact our gov­ern­ment con­tin­ues to reg­u­larly pun­ish in­mates by leav­ing them alone in fre­quently de­crepit cells for as long as 23 hours a day, with se­verely re­stricted hu­man con­tact.

Ac­cord­ing to fed­eral sta­tis­tics, that’s what hap­pens to about 4,500 fed­eral in­mates in any given year, for an av­er­age stint of 24 days.

By claim­ing that it has im­proved soli­tary con­fine­ment by of­fer­ing more ex­er­cise and hu­man con­tact, the fed­eral gov­ern­ment is at least im­plic­itly ac­knowl­edg­ing that the use and na­ture of iso­la­tion has to change. This counts as progress.

End­ing the prac­tice eu­phemisti­cally known as ad­min­is­tra­tive seg­re­ga­tion is a laud­able and nec­es­sary goal. So why not ac­tu­ally do it? Why not make the pol­icy match the court­room rhetoric? The gov­ern­ment’s po­si­tion ap­pears to be that, since prison is an “ex­traor­di­nar­ily dy­namic and in­fin­itely prob­lem­atic en­vi­ron­ment,” truly stop­ping the use of soli­tary is not pos­si­ble.

That strains credulity. Other coun­tries have shown it is pos­si­ble to op­er­ate pris­ons that main­tain or­der and pro­tect staff and in­mates– with­out send­ing some to win­dow­less cells where their only in­ter­ac­tions are through a slot in the steel door.

This space has long rec­og­nized that war­dens ab­so­lutely need re­course to mea­sures that tem­po­rar­ily sep­a­rate prob­lem in­mates from the gen­eral pop­u­la­tion. But bad things hap­pen where soli­tary con­fine­ment be­comes that tool, and its use is left to the dis­cre­tion of cor­rec­tional staff.

In the law­suit pit­ting it against the gov­ern­ment, the Cana­dian Civil Lib­er­ties’ As­so­ci­a­tion ar­gues that in­de­pen­dent over­sight of seg­re­ga­tion de­ci­sions is re­quired and that men­tally ill in­mates should never be placed in iso­la­tion, which should be lim­ited to 15 days in all cases. (The lat­ter is cur­rently be­ing con­sid­ered by Par­lia­ment.) It makes a per­sua­sive case.

If some form of ad­min­is­tra­tive seg­re­ga­tion is to con­tinue to ex­ist, it must be hu­mane, safe, cir­cum­scribed and rare. There are dozens of cred­i­ble stud­ies from around the world show­ing the dele­te­ri­ous ef­fects of iso­la­tion on in­car­cer­ated pop­u­la­tions.

There’s a moral ar­gu­ment against soli­tary, but here’s the util­i­tar­ian one: a sys­tem de­signed to re­ha­bil­i­tate shouldn’t em­ploy mea­sures that leave its sub­jects worse off. And if some­thing is do­ing that, stop do­ing it.

Pris­ons can be hazardous, tense, gang-rid­den en­vi­ron­ments (“danger­ous and dif­fi­cult places,” in the par­lance of Ot­tawa’s lawyers). But that’s been true for decades, and the wide­spread use of soli­tary con­fine­ment hasn’t fixed it.

Lit­i­ga­tion has a way of fo­cus­ing the mind, and in re­cent months Ot­tawa has im­ple­mented mul­ti­ple pol­icy changes (usu­ally with­out telling any­one out­side the sys­tem). Added safe­guards have been put in place. It’s some­thing, but still not enough.

Iso­la­tion can make oth­er­wise healthy peo­ple des­per­ately un­well and can lead to more of the vi­o­lent and ag­gres­sive be­hav­iour it aims to cur­tail. It also ex­ac­er­bates the con­se­quences of men­tal ill­ness, which large swaths of Canada’s prison pop­u­la­tion suf­fer from. This not news, and nei­ther is it con­tro­ver­sial. It’s why the fed­eral gov­ern­ment ac­knowl­edged the pre­pon­der­ance of the sci­en­tific ev­i­dence in court this week, and tried to ar­gue that it has im­proved soli­tary, turn­ing it into soli­tary-lite-enough.

Peo­ple who find them­selves in a fed­eral prison are con­victed crim­i­nals. They broke the law, and their in­frac­tion was se­ri­ous enough to merit a penalty of more than two years be­hind bars. The maxim “don’t do the crime if you don’t want to do the time” is not en­tirely in­cor­rect. Most of Her Majesty’s in­vol­un­tary guests are dif­fi­cult peo­ple. Many are vi­o­lent.

But that doesn’t mean they de­serve to be mis­treated in prison. That’s not how a civ­i­lized so­ci­ety be­haves. And we re­turn again to the util­i­tar­ian ar­gu­ment: It’s not how a so­ci­ety that aims to re­duce crim­i­nal re­cidi­vism be­haves.

The Cana­dian crim­i­nal sys­tem’s ul­ti­mate ob­jec­tive is less crime. Our pris­ons aren’t just ware­houses of crim­i­nals. They are sup­posed to cre­ate the nec­es­sary con­di­tions – and of­fer the ap­pro­pri­ate treat­ments – in or­der that those who leave prison, as nearly every in­mate one day will, do not re-of­fend, or present a height­ened dan­ger to, or bur­den on, so­ci­ety. Ev­ery­thing we know about soli­tary con­fine­ment in­di­cates it does the op­po­site.

No amount of rhetor­i­cal prow­ess can ob­scure that re­al­ity.

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