The litmus test of legitimacy: independent adjudication and administrative segregation.

• Author: Jackson, Michael (Canadian law professor)
• Position: Canada

Introduction

Over the past 30 years a vigorous controversy has emerged in the literature, policy forums, legislative committees, and judicial commissions of inquiry as to the measures necessary to ensure that the use of administrative segregation--which, because of its indefinite duration and the severity of the conditions, is the most restrictive form of imprisonment--is consistent with human rights standards and subject to the rule of law. One of these measures is the use of independent adjudicators to superintend the process whereby prisoners are placed and retained in segregation. This article tracks the history of this controversy, explains the competing arguments that have fuelled the debate, and chronicles the developments that have left unfinished a critical feature of the correctional landscape.

The federal Corrections and Conditional Release Act provides for two forms of segregation. (1) The first is called disciplinary segregation. This can be imposed as a sanction after a prisoner has been found guilty of a serious disciplinary offence in a hearing before an independent chairperson. Segregation is the most severe form of punishment that can be administered as a disciplinary sanction. However, it is limited to a maximum of 30 days, which can be increased to a maximum of 45 days for multiple convictions. (2)

The second form of segregation is administrative segregation. Its purpose is to prevent a prisoner from associating with the general population. It can be used whenever the institutional head has reasonable grounds to believe that the prisoner's continued presence in the general population jeopardizes the security of the penitentiary or the safety of any person, including the prisoner, or would interfere with a serious investigation. In all cases, the institutional head must be satisfied that there is no alternative but to segregate the prisoner and must ensure that the prisoner is returned to the general population as soon as possible. Unlike disciplinary segregation, administrative segregation is not subject to legislative limits on duration, although it is subject to periodic review. Because the time spent in administrative segregation can extend to months, even years, it represents the most powerful form of carceral authority. Because the conditions of confinement are the closest thing to solitary confinement, it is also the most intensive form of imprisonment. Historically it has been the most abused. (3)

Although there are cases in which prisoners placed in segregation for their own protection argue that there is no basis for this fear, most prisoners segregated on this ground acknowledge that the fear is well founded, and in many cases the prisoners themselves have requested removal from the general population. Thus, within the population of administratively segregated prisoners, there has arisen a distinction between "involuntary" and "voluntary" cases.

One of the major changes in the Canadian prison system over the last 25 years has been the large increase in the population of prisoners who are in various forms of segregated status for their own protection, and in many cases at their own request. The circumstances that have led to their segregation cover a broad spectrum. This population includes prisoners who are facing pressure or threats arising from drug or gambling debts; socially inadequate prisoners with a history of mental illness who have constant difficulties in their relationships with other prisoners; prisoners who are believed to be informants; and those who, because of the nature of their crime (usually involving a brutal sexual assault or an offence against children), are in imminent danger from all but a few other prisoners. This population poses special, often intractable problems for both prisoners and prison administrators.

"Justice behind the Walls" (1974)

The case for independent adjudication was first advanced in the context of prison disciplinary hearings, which, from the opening of Kingston Penitentiary in 1834 until 1980, were judged by correctional officials under the "warden's court" regime. In 1972, I conducted a study of the disciplinary process in Matsqui Institution, a federal penitentiary in British Columbia. This was the first comprehensive academic study of the prison disciplinary process in Canada. (4) During a four-month period in 1972 I observed every wardens court hearing conducted at Matsqui and interviewed prison administrators, correctional staff, and prisoners. My subsequent article (Jackson 1974) concluded that the process lacked the essential attributes of objective and fair adjudication. This conclusion was based in part upon a lack of proper notice, confusion of the issues of guilt and disposition, and extensive discussion of the case in the absence of the prisoner. However, it was also related to a more fundamental concern. The overarching flaw in the warden's court system was that the very people responsible for maintaining the good order of the institution were the ones judging whether prisoners had committed offences against that good order. The judges, in other words, were the offended parties. Furthermore, these adjudicators brought to the hearings considerable personal knowledge of the prisoners, based on previous dealings, and it was therefore impossible for them to approach a particular case free of that bias. A further source of bias prejudicing objective judgement was the perceived need of prison administrators to maintain staff morale by accepting the testimony of guards wherever it conflicted with that of prisoners.

My analysis of the underlying sources of unfairness in the disciplinary process led directly to the reforms I advocated at the conclusion of my 1974 study, the centrepiece of which was the appointment of an independent chairperson to the disciplinary board:

This study suggests that prison administrators and staff have perceptions of the nature of disciplinary proceedings that place a low priority on the value of due process and the procedural protections which give it meaning, and that the mere provision of such protections without ensuring the implementation by officials imbued with a sense of their value is likely to result in their being circumvented ... The crux of any real reform lies therefore in an impartial disciplinary tribunal, in the sense of one which will approach cases free from bias based upon prior knowledge of the inmate and which will handle the task of discipline in a spirit of maximizing rather than undermining the procedural protections designed to ensure a fair hearing. (Jackson 1974: 63-64) With regard to the administrative segregation process, I concluded that the very broad discretion given to the institutional head to dissociate a prisoner--"for the good order and discipline in the institution or in the best interests of an inmate" (Penitentiary Service Regulations, s. 2.30(1)(a))--required adequate procedural checks and balances to prevent any potential abuse of that discretionary power. Given that prisoners could and did spend far longer periods in administrative than in disciplinary dissociation, I argued that, while the initial decision to place a prisoner in administrative dissociation should be left with the institutional head, there should be a formal review before an independent chairperson after five days. This argument was not based only on the need for procedural symmetry between punitive and administrative dissociation. Because in many cases the grounds for dissociation will be based on confidential information that cannot be fully disclosed to the prisoner (e.g., names of informants), the independence of the chairperson plays a vital role. All relevant information would be disclosed to the chairperson, and this should provide the prisoner with a measure of confidence that unbiased scrutiny is being brought to bear on the institution's case.

The McCann case (1974-1975)

The realities of the use and abuse of administrative dissociation were graphically revealed in the evidence given in McCann v. The Queen, in which a group of prisoners confined in the segregation unit of the BC Penitentiary (the "Penthouse") asserted that their solitary confinement, without notice of any charges laid against them and without a hearing before an impartial decision maker, deprived them of their right to a fair hearing in accordance with the principles of fundamental justice, guaranteed to them under ss. l(a) and 2(e) of the Canadian Bill of Rights, and that the conditions of their confinement constituted cruel and unusual treatment or punishment under s. 2(b). (5)

Between 1970 and 1974, the seven plaintiffs in the McCann case had spent a total of 11.5 years in solitary confinement. The prisoners maintained that the injustice of their confinement was not limited to its physical and psychological dimensions; it included the process whereby they had been placed in solitary. In McCann, prisoners gave evidence of being placed in dissociation without notice of the grounds and without a hearing at which they could challenge the case against them or make representations. They also testified that they had no knowledge of the prescribed monthly review of their cases. The evidence given by the BC Penitentiary's warden and its head of security regarding their interpretation of "the maintenance of good order and discipline" revealed no consistent standards for determining what constituted sufficient grounds for dissociation. Rather, it suggested that decisions to place prisoners in dissociation were made on the basis of rumours, hunches, and intangible feelings grounded in the prisoners' past reputations or their present attitudes. Dr Richard Korn, one of the plaintiffs' expert witnesses and himself the former warden of an American penitentiary, described the process of admission to and release from dissociation as "highly capricious, arbitrary and in its design and effect ... mystifying, and to...