The case for abol­ish­ing soli­tary con­fine­ment


Sup­port is grow­ing for a sub­stan­tial re­duc­tion in the use of soli­tary con­fine­ment — good news — but is it enough? On­tario Om­buds­man Paul Dubé re­cently doc­u­mented the slovenly way soli­tary is han­dled: we do a bet­ter job in track­ing an­i­mals than in check­ing on soli­tary in­mates, he said.

The rec­om­men­da­tions Howard Sapers made in his even more re­cent re­port, com­mis­sioned by the On­tario gov­ern­ment, are clear and strong: a ban on soli­tary for four cat­e­gories of in­mate: the men­tally ill, sui­ci­dal in­mates, preg­nant women and new moth­ers. He would limit soli­tary to a max­i­mum of 15 days per stay, with a per-year max­i­mum of 60 days.

The min­is­ter of Cor­rec­tional Ser­vices, Marie-France Lalonde, promptly stated that all of Sapers’ rec­om­men­da­tions would be im­ple­mented. On­tario has in­deed made a start in an­nounc­ing the clo- sure of two no­to­ri­ously in­ad­e­quate pris­ons, Ot­tawa and Thun­der Bay.

But why 15 days? The limit is a nod to the 2011 United Na­tions re­port that calls soli­tary con­fine­ment any longer “tor­ture or cruel, in­hu­man and de­grad­ing treat­ment,” which should, as such, be pro­hib­ited.

Yet the UN ex­pert who hit on that num­ber, Juan Men­dez, him­self ac­knowl­edged that “even a few days of so­cial iso­la­tion” can cause “some men­tal dam­age.” He urged a to­tal ban on soli­tary for pre­trial de­ten­tion, ju­ve­niles and those with men­tal dis­abil­i­ties. Yes, and about time for Canada, too.

The ques­tion now turns to the magic15. How is it that 16 or more days amount to “tor­ture,” but 14 or 15 days in soli­tary is per­fectly fine for your health? There is sub­stan­tial ev­i­dence of harm with even short pe­ri­ods in soli­tary.

The College of Fam­ily Physi­cians of Canada, in a po­si­tion state­ment in 2016, doc­u­mented harm from stays as short as 48 hours.

An ed­i­to­rial in the Cana­dian Med­i­cal As­so­ci­a­tion Jour­nal (CMA) in 2014 made a sim­i­lar point on harm, how­ever with­out this be­ing an of­fi­cial po­si­tion of the CMA. Ef­fects may de­velop “within a few days and in­crease the longer seg­re­ga­tion lasts.” In the three years be­fore the study, nearly half the in­mates who com­mit­ted sui­cide, 14 out of 30, were in sol- itary at the time. The ed­i­to­rial looked to this 200-year-old prac­tice hav­ing “had its day.”

To the com­mit­ted skep­tic on soli­tary con­fine­ment, no ev­i­dence is ever enough. The gold stan­dard is the con­trolled ex­per­i­ment, which in this case would re­quire as­sign­ing in­mates to no soli­tary and dif­fer­ent lengths of it, to be tested af­ter­wards on their men­tal health, self-harm and sui­cide at­tempts. This is ob­vi­ously not pos­si­ble for eth­i­cal rea­sons.

How­ever, there is rel­e­vant re­search com­par­ing out­comes be­tween in­mates in soli­tary and those not. A New York study found that those at any time in soli­tary were 3.2 times as likely to com­mit self-harm than those not. Self-harm means lac­er­a­tion, lig­a­ture, swal­low­ing a for­eign body, over­dose, head bang­ing or set­ting one­self, or the cell, on fire. “Po­ten­tially fa­tal self-harm,” mean­ing sui­cide, was sig­nif­i­cantly cor­re­lated with soli­tary con­fine­ment.

Fed­eral pris­ons house the more se­ri­ous of­fend­ers. Af­ter much bad pub­lic­ity from sui­cides in fed­eral pris­ons, the gov­ern­ment has rec­og­nized the harm of soli­tary and has started to re­duce its use. But the min­is­ter of Pub­lic Safety, Ralph Goodale, seems to think that is enough.

So far, he has made only a vague com­mit­ment to some re­form, not nec­es­sar­ily to the law it­self. Yet the ex­ist­ing law, the Corrections and Con­di­tional Re­lease Act, has no ef­fec­tive re­stric­tions on the use of soli­tary. It per­mits it when there is “no rea­son­able al­ter­na­tive,” yet does noth­ing to re­quire any al­ter­na­tives. Re­lease is to be at the “ear­li­est ap­pro­pri­ate time,” with no spec­i­fi­ca­tion as to what con­sti­tutes “ap­pro­pri­ate.”

The prob­lem re­mains that some sort of seg­re­ga­tion will con­tinue to be needed for in­mates at risk of as­sault, such as sex of­fend­ers and po­lice of­fi­cers li­able to re­tal­i­a­tion. Yet there is no rea­son why this should amount to the ex­treme de­pri­va­tion of soli­tary con­fine­ment. With elec­tronic com­mu­ni­ca­tions, tele­phones, books and vis­its, it should be pos­si­ble for in­mates to avoid men­tal de­te­ri­o­ra­tion. This is a de­sign, tech­nol­ogy and sched­ul­ing is­sue.

Soli­tary con­fine­ment should be abol­ished, not only for ju­ve­niles and the men­tally ill (pri­or­i­ties), but all soli­tary, for fed­eral and pro­vin­cial/ter­ri­to­rial pris­ons. Re­ha­bil­i­ta­tion is a goal of our prison sys­tem and most pris­on­ers are re­leased at some point. Hang­ing, flog­ging, the pad­dle and bread-and-wa­ter di­ets were abol­ished decades ago. This bar­barism, too, should pass.

How is it that 16 or more days amount to “tor­ture,” but 14 or 15 days in soli­tary is per­fectly fine for your health?

Lynn McDon­ald is a for­mer MP, pro­fes­sor emerita at the Uni­ver­sity of Guelph and Mem­ber of the Or­der of Canada.

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