The case for abolishing solitary confinement

Solitary cell in Prison Jacques-Cartier, Rennes, France

Lynn McDonald
Toronto Star, May 29, 2017

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’s recommendations would be implemented. Ontario has indeed made a start in announcing the closure 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 U.N. 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 magic 15. 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 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 solitary 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.

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

Supporters’ voices

Abolish the use of solitary confinement in our prisons

I practised law in the province of Ontario for 50 years. A significant part of my practice was in criminal law. In the early years of my practice, with a few other lawyers, I did a significant amount of work for the inmates in Millhaven Penitentary. One of the cases I did was an inquest into the suicide in solitary confinement of an inmate named Eddie Nalon. In the summer of 1974 Eddie was serving a life sentence for murder. At the suggestion of a guard as to how to change the range he was on, Eddie refused to work and was placed in segregation. His case was up before the segregation review board after the first week he was in solitary. They did not deal with his case. His case was dealt with by the segregation review board after his second week in segregation. He was ordered released from segregation but they did not convey that information to Eddy. He committed suicide that night.

What is known as Prison Justice Day commemorates Eddie’s death in segregation.

Recently a report was released by the Ontario government done by Howard Sapers, the former federal correctional investigator, on solitary confinement. Another report was issued by the present federal correctional investigator Ivan Zinger. Both reports call for very drastic reduction in the use of solitary confinement.

I do not believe that either of those reports go far enough and that is why I’ve joined this group seeking to abolish the use of solitary confinement in our prisons, both provincially and federally.

Paul Copeland

Why I support a ban on solitary confinement

The very concept of being placed alone, locked in a room with no freedom to come out, lights on, observation of my every action possible through a window, contact with the outside restricted to food being passed in, nothing to do—sensory deprivation– sends shivers down my spine. I can think of no more likely result of such an experience than mental, psychological, emotional unhinging, only the length of time for personal disintegration differing from one prisoner to another. Breaking someone’s spirit is a morally despicable act. Since most prisoners will be released into society, it is against reason to subject such persons – who may well be more difficult prisoners — to such an experience. Flashbacks to it may render difficult or impossible any semblance of normal life. If reintegration of prisoners into society is our goal, solitary confinement is patently counterproductive. Given that a high percentage of prisoners reportedly suffer from mental illness of one kind or another, it is indeed folly. On these intuitive and rational grounds, I reject solitary confinement, and seek more constructive solutions to the problems it is used for. Violent, out-control prisoners representing a danger to guards and other prisoners must be subjected to controls, but solitary confinement is a destructive solution. We need to address the real task.

Phyllis Creighton

The time is now

More than 1/3 of women in federal prisons in Canada are Indigenous. 91% have histories of abuse. Many also experience disabling mental health issues and most are poor.

Urgent need for Action: The Time Is Now. We must end the criminalization, isolation and imprisonment.

Implement Truth and Reconciliation Call to Action 30 and stop jailing Indigenous women.

In Sisterhood with women inside and Elizabeth Fry Societies across Canada

Hon. Kim Pate, Senator, former director, Canadian Association of Elizabeth Fry Societies

I cannot tell to those in hell

I cannot tell to those in hell
The dreams I send above
Nor how the shrill of whistles kill
Each passing thought of love.
Within these walls that never fall
The damned all come to know
The rows of cells–the special hell
Called Solitary Row

Jack McCann (quoted in Michael Jackson, Prisoners of Isolation)

Solitary confinement: “the bitterest torment that human ingenuity can inflict”

William Godwin (An Inquiry into Political Justice, Book 7, chapter VI)

To the Globe and Mail, 9 June 2017: “Ban Solitary Outright”

The Globe and Mail June 9 2017

Your editorial clearly sets out the inconsistencies, hypocrisy and injustices of solitary confinement. We agree with it also in its support for Howard Sapers’s recommendations for excluding the mentally ill and juveniles. However, his recommended cap on solitary (15 days at a time, 60 days total in a year) is based on a UN Report of 2011, which itself was a compromise. Evidence continues to mount that solitary causes harm even in shorter stays.

Independent oversight would be better than the current wide-open discretion accorded prison managers. You call for “getting those minimum standards right” and insist that legislation is needed – we concur. However, the “right” maximum stay, if we go by evidence of harm, which we should, would be under 48 hours. Better to look at other places which have made the move to virtual abolition.

Flogging, which society now finds abhorrent, was once acceptable, too. The time has come to ban solitary confinement.

Mary Boyce, lawyer
Paul Copeland, CM, LLB
Canon Phyllis Creighton, OOnt, MA, editor
Hon Norman Dyson, QC
Ronald Hinch, PhD, professor emeritus of criminology
Hon Keith Hoilett
Lynn McDonald, CM, PhD, LLD (hon) professor emerita

To Marie-France Lalonde, MPP, Minister of Community Safety, Ontario

Marie-France Lalonde, MPP
Minister of Community Safety and Correctional Services

Dear Ms Lalonde

We were pleased when the premier appointed Howard Sapers to conduct a long-needed inquiry into the use of solitary confinement in Ontario prisons. We consider that Mr Sapers’s 63 recommendations go far in addressing the worst aspects of solitary confinement as currently practised (notably the ban on its use for juveniles, pregnant women and the mentally ill). We concur that independent oversight would be better than the wide-open discretion prison authorities currently have in imposing, and continuing, solitary confinement.

However, we believe the time has come to go further: to abolish the use of solitary as a barbaric relic of a previous time. It was originally instituted on the theory that it would promote self-reflection and reform. Instead, it made inmates mad. It continues to, and to provoke self-harm, attempted suicide and suicide.

For “disciplinary segregation” the case is obvious: abolition. Criminal penalties for serious infractions in a penal institution are available, or loss of privileges for the less serious.

“Administrative segregation” is more complicated. For inmates on remand there is no justification for the punitive aspects, the extreme deprivation, of segregation. Some kind of protective custody, with measures to ensure social contact and exercise must be provided. Protective custody for vulnerable inmates will also require creative measures to ensure adequate social contact for health. Segregation should not be used for those who self-harm or attempt or threaten suicide, matters for psychiatric care.

(B) segregation to protect staff and other inmates from harm: again abolition will require significant changes in building, staffing and programs. There are positive examples in other places that should be considered. We urge Ontario to be bold in looking at alternatives.

Reforms such as independent oversight do not go far enough. Independent oversight for slavery? Flogging? Fewer strokes of the paddle? We say the time has come, as it did for those barbaric practices, to abolish solitary confinement, under whatever name.

Sincerely yours

Mary Boyce, lawyer
Paul Copeland, CM, LLB
Canon Phyllis Creighton, OOnt, MA, editor
Hon Norman Dyson, QC
Ronald Hinch, PhD, professor emeritus of criminology
Hon Keith Hoilett
Lynn McDonald, CM, PhD, LLD (hon) professor emerita

To Hon. Ralph Goodale MP, Minister of Public Safety

Hon Ralph Goodale, MP
June 7, 2017

Dear Mr Goodale

We are pleased to see Correctional Services Canada conferring with equivalent provincial jurisdictions on reforming solitary confinement. We will not repeat the reasons for reform being needed at all levels – they are well known.

Our point is to call for adequate reform – the abolition of solitary confinement – not merely the caps proposed by Howard Sapers (following the UN report of 2011) and other safeguards (albeit better than the status quo).

Our prison system, at all levels, has rehabilitation as its goal; most prisoners will get out and their time inside should help prepare them for it, not worsen their condition, if mentally ill, or push them into self-harm or suicide. That First Nations persons and blacks are consistently over-represented in solitary confinement (as they are in prisons generally) is yet another reason for concern.

Solitary confinement, or segregation, or whatever the euphemism is for it, as you know is largely the same in practice, while the legal justification for it varies by type:

  1. Disciplinary segregation: the case for abolition is clear. Criminal penalties for serious infractions in a penal institution are available, or loss of privileges for the less serious.
    Like flogging, the paddle and the bread-and-water diet, the time has come to abolish solitary confinement, not try to improve it. Charitable, monitored slavery? Flogging? We wonder.
  2. Administrative segregation
    1. as protective custody for vulnerable inmates. The punitive aspects of segregation must be abolished, especially for inmates on remand; some form of protection will continue to be needed, but this should not entail the extreme sensory deprivation of isolation. Segregation should not be used either for the mentally ill or those who self-harm or attempt or threaten suicide, matters for psychiatric care.
    2. segregation to protect staff and other inmates from harm from an inmate. Abolition here will require significant changes in building, staffing and programs. There are positive examples in other places that should be considered. We urge your department to consult widely on practical alternatives.

Sincerely yours

Mary Boyce, lawyer
Paul Copeland, CM, LLB
Canon Phyllis Creighton, OOnt, MA, editor
Hon Norman Dyson, QC
Ronald Hinch, PhD, professor emeritus of criminology
Hon Keith Hoilett
Lynn McDonald, CM, PhD, LLD (hon) professor emerita Hon