Contesting expertise in prison law.

• Author: Kerr, Lisa Coleen
• Position: Introduction into III. American Judicial Review: Intervention and Retreat, p. 43-68

Prisons present a special context for the interpretation of constitutional rights, where prisoner complaints are pitched against the justifications of prison administrators. In the United States, the history of prisoner rights can be told as a story of the ebb and flow of judicial willingness to defer to the expertise-infused claims of prison administrators. Deference is ostensibly justified by a judicial worry that prison administrators possess specialized knowledge and navigate unique risks, beyond the purview of courts. In recent years, expansive judicial deference in the face of "correctional expertise" has eroded the scope and viability of prisoners' rights, serving to restore elements of the historical category of "civil death" to the legal conception of the American prisoner. In Canada too, courts have often articulated standards of extreme deference to prison administrators, both before and after the advent of the Charter of Rights and Freedoms, and notwithstanding that the Charter places a burden on government to justify any. infringement of rights. Recently, however, two cases from the Supreme Court of British Columbia mark a break from excessive deference and signify the (late) arrival of a Charter-based prison jurisprudence. In each case, prisoner success depended on expert evidence that challenged the assertions and presumed expertise of institutional defendants. In order to prove a rights infringement and avoid justification under section 1, the evidence must illuminate and specify the effects of penal techniques and policies on both prisoners and third parties. The litigation must interrogate the internal penal world, including presumptions about the workings of prisoner society and conceptions of risk management.

Les prisons, ou s'affrontent les plaintes des detenus et les justifications des administrateurs du systeme correctionnel, presentent un contexte particulier pour l'interpretation des droits constitutionnels. Aux Etats-Unis, le developpement des droits des detenus peut etre interprete comme la fluctuation de la deference aux allegations des autorites du systeme correctionnel par le pouvoir judiciaire. Cette deference est soi-disant justifiee par le fait que ces administrateurs possedent une expertise et une capacite a gerer des risques uniques qui echappent aux tribunaux. Dans les dernieres annees, l'ampleur de la deference judiciaire face a l'> est venue eroder l'etendue et la viabilite des droits des detenus. Ce phenomene a contribue a faire resurgir certains elements de la notion historique de > dans la conception juridique du prisonnier americain. Au Canada aussi les tribunaux ont frequemment formule des normes de deference tres importante aux administrateurs du systeme correctionnel, avant et apres l'entree en vigueur de la Charte canadienne des droits et libertes, et ce, meme si la Charte impose au gouvernement le fardeau de justifier toute violation des droits qu'elle protege. Recemment, neanmoins, deux decisions de la Cour supreme de la Colombie-Britannique ont marque une rupture avec l'attitude de deference excessive, signalant ainsi l'arrivee (plutot tardive) d'une jurisprudence sur les droits des detenus qui s'appuie sur la Charte. Dans chacune de ces affaires, le succes du detenu demandeur est du a des preuves d'experts qui sont venues defier les affirmations et l'expertise presumee des defendeurs institutionnels. Pour demontrer une violation des droits garantis par la Charte et en eviter la justification par l'article premier, la preuve doit mettre en lumiere les techniques et politiques penales a l'egard des detenus et en decrire les effets sur les detenus eux-memes ainsi que sur les tiers. Le litige doit s'interesser a la structure interne du monde penal, ce qui inclut les suppositions quant au fonctionnement d'une societe carcerale et certaines conceptions de la gestion des risques.

Introduction I. Early Signs of Prisoner Rights II. Canadian Judicial "Hands Off": Persistence into the Charter Age III. American Judicial Review: Intervention and Retreat IV. Transitioning to a Rights-Based Paradigm A. Solitary Confinement: Bacon v. Surrey Pretrial Services Centre B. Mother-Baby Programs: Inglis v. British Columbia (Minister of Public Safety) C. Harm Reduction Conclusion "And it is terror, of course, that traditionally drives us into the arms of the experts."

Adam Phillips, Terrors and Experts (1)

Introduction

In adjudicating rights claims brought by prisoners, there are unique pressures on courts to refrain from close scrutiny. The structure of a prisoner lawsuit is that an incarcerated person complains about the nature of his treatment while held in state custody. The court is asked to review the content of prison law or the conduct of prison administrators that led to the treatment. From the outset and throughout the litigation, the defendant wears a cloak of expertise, typically attempting to justify the impugned law or conduct by pointing to the security concerns and limited resources that constrain the prison context. Judges are at risk of yielding uncritically in the face of their own corresponding lack of "correctional expertise". The prospect of excessive judicial deference to the claims of prison administrators poses a chronic threat to the scope and viability of prisoners' rights.

The United States experience provides a valuable illustration of what is at stake. In recent years, what appears to be judicial unwillingness to scrutinize the claims of administrators in prisoner litigation has sharply curtailed prisoners' rights in that legal system. American plaintiffs have a difficult time rebutting judicial deference to the claims of institutional defendants, particularly at the level of the Unites States Supreme Court. As Sharon Dolovich has shown, the "imperative of restraint--aka deference--has emerged as the strongest theme of the Court's prisoners' rights jurisprudence." (2) Deference is offered even when a defendant's claims rest on unproven assumptions as to what is required or effective in prison settings. The good judgment of the putative expert is presumed but not tested.

Such weak modes of constitutional review for prisoners may be understood as part and parcel of the unique American penal state: (3) marked by features such as the persistence of the American death penalty (4) and an extraordinary range of collateral consequences that follow silently from conviction. (5) One historian suggests that these features are part of "a long, deep strain in American legal and moral culture" that convicts are "unfit to share in the full fruits and protections of citizenship [and] that the convict ought rightly to be fully or partially civilly dead." (6) As this article describes, both American and Canadian law has been long marked by this same history--a notion of prisoners as lacking full or ordinary legal status. The Charter of Rights and Freedoms (7) prescribes a different route, but post-Charter prisoner law has not consistently taken it.

Prisoner claims grounded in the Charter constitute a relatively young jurisprudential field. (8) In one of the few leading cases, the Supreme Court of Canada makes clear that prisoners are not to be excluded from the ordinary constitutional analysis that applies to rights infringements by the government. At the core of that holding was the question of the empirical burden on government to justify a rights infringement. In Sauve v. Canada (Chief Electoral Officer), (9) a majority of the Court rejected an argument, advanced by the government, that legislation directing prisoner disenfranchisement should be upheld because it is connected to legitimate penological goals and is thus constitutionally permissible. (10) Significantly, the case turned on the character and quality of the evidence, where non-state experts appeared on both sides of the case. The government relied largely on evidence from political philosophers, who testified that the loss of political rights for those convicted of federal offences accords with particular theories of democracy. (11) The majority opinion found that evidence to be unpersuasive and also rejected the government's claim that denying prisoners the vote sends an expressive message about the sacred character of political participation. (12) The majority held that a voting ban is "more likely to erode respect for the rule of law than to enhance it, and more likely to undermine sentencing goals of deterrence and rehabilitation than to further them." (13) The majority concluded that the government's "vague and symbolic objectives" were insufficient to legitimize a law that stripped prisoners of fundamental rights. (14)

The reasoning in Sauve seems to make clear that prisoner rights cannot be infringed without a justification grounded in evidence. For this reason, the Sauve holding is commonly upheld as a symbol of Canada's commitment to prisoner rights, particularly as England and much of the United States do not permit prisoner voting. (15) There are, however, several reasons why a victory in Sauve might be considered low-hanging fruit, rather than a symbol of a deep jurisprudential commitment to prisoners' rights. First, the right is occasional: the practical effect of the majority opinion is only that prison administrators must allow infrequent access to a polling station. Protection of the right entails minimal resources and requires little administrative attention. Second, and most significantly for this article, the case concerned legislation rather than a policy or decision of a prison administrator, and that legislation covered a topic unrelated to prison management. No prison administrator appeared to defend the voting ban on the basis of plausible assertions about security dynamics and the mechanics of sound penal administration. The expert evidence in Sauve did not suggest that imprisonment is incompatible with the retention of the right to vote explicitly protected in...