A Guide to the Abolition of Solitary Confinement

by Lynn McDonald | Campaign for the Abolition of Solitary Confinement

Solitary confinement: where did it come from and why?

Solitary confinement originated as a reform measure in the late 18th century, when criminal punishments featured hanging, whipping and transportation to Australia or Tasmania. The intent was benevolent: solitude to reflect and repent, removal of the bad influences of other criminals and visits from upright citizens from a prison society. Prison reformer John Howard (c. 1726-90) was an advocate.

The term “penitentiary” reflects the original purpose, but penitence unhappily was not the result. It was soon found that many inmates went mad and some committed suicide.

The model proposed in 1791 by utilitarian philosopher Jeremy Bentham, the Panopticon, was never built. It featured the ultimate in solitary: rows of cells radiating out from a centre where a guard could observe in all directions, hence “panopticon.”

Bentham’s model was not built, but some of its features were adopted in many countries. The effective model for the world became the “Philadelphia System,” when the Philadelphia Penitentiary opened in 1821, with workspace and exercise yards, and visits from members of the Philadelphia Society for Alleviating the Miseries of Public Prisons. A modification called the “Silent System,” or “Auburn System,” with association in work, but silence enforced, was put in place in other prisons.

The famous novelist Charles Dickens visited solitary prisons while on tour in the United States and Canada in 1842. He gave a full chapter to the Philadelphia prison, on the awful “dull repose and quiet that prevails …” in those melancholy, “dreary places.” Inmates then had to wear a black hood, not removed until the sentence was over. He saw a mad man who threw himself around, from “his horrible fancies.”

What monstrous phantoms, bred of despondency and doubt and born and reared in solitude, have stalked upon the earth, making creation ugly and darkening the face of Heaven!

Solitary, he said, tampered “with the mysteries of the brain, and was “immeasurably worse” than bodily torture. It was a “secret punishment which slumbering humanity is not roused to stay” (Dickens, American Notes for General Circulation, Chapter 7). Humanity would not slumber for long, however, as we will soon see.

Dickens also visited Kingston Penitentiary, which opened in 1835 and was then under a silent-work system, but not solitary. He judged it to be well run. It would soon be marked by terrible cruelty, included the beating of child prisoners for talking. Kingston became the model solitary prison for Canada, described in painful detail by Michael Ignatieff in A Just Measure of Pain: The Penitentiary in the Industrial Revolution.

It was designed to be a punishment that was severe but humane, rational and ultimately transformative. “In the silence of their cells, superintended by authority too systematic to be evaded, too rational to be resisted, prisoners would surrender to the lash of remorse” (p 78).

Dickens’s comments in 1842 on the psychological distress caused would be echoed in reports ever since. Self-harm, suicide and suicide attempts would become common in solitary confinement. Only later would neurological scientists be able to explain them through changes in brain functioning, detectable by electroencephalogram.

There were opponents to solitary confinement as a principle from the start. For example, in An Inquiry concerning Political Justice, 1793, the political philosopher William Godwin called it “the bitterest torment that human ingenuity can inflict,” and explicitly challenged John Howard on it (“Scale of Punishment,” Book 7, Chapter 6). While ordinary jails were “seminaries of vice,” solitary confinement would be “a nursery for madmen and idiots.” It would not soften or expand the mind, for human beings are social animals.

The consequences of solitary confinement: research results

Research has been accumulating from a great range of psychiatric and psychological studies, some experiments, and many analyses of quantitative data on prison inmates. A major meta study concluded:

Nearly every scientific inquiry into the effects of solitary confinement over the past 150 years has concluded that subjecting an individual to more than 10 days of involuntary segregation results in a distinct set of emotional, cognitive, social and physical pathologies (Smith, “The Effects of Solitary Confinement on Prison Inmates”).

Physiological consequences from solitary include severe headaches; heart palpitations, increased pulse, over sensitivity to stimuli, noise, pains in neck and back; digestion problems and weight loss. Psychological consequences are confusion, impaired concentration, memory loss, hallucinations, paranoid ideas, hearing voices, fantasizing, depression, poor impulse control, violent reactions, self-mutilation (frequent), lethargy, debilitation; sleeping problems and suicidal tendencies (pp 488-93).

There is much material also from studies based on actual behaviours, like self-mutilation, suicide and attempted suicide. Researchers in the New York Department of Health and Mental Hygiene analyzed records of inmates from 2010 to 2012, comparing incidents of self-harm between those in solitary with those not. While only 3% of admissions included any stay in solitary, 53% of acts of self-harm and 45% of potentially fatal self-harm were in that group. The researchers concluded that the data supported “the need to reconsider the use of solitary confinement as punishment in jails, especially for those with serious mental illness and adolescents” (Kaba, “Solitary Confinement and Risk of Self-Harm Among Jail Inmates”). In fact, the results led to new programming in New York jails (see Glowa-Kollisch, below).

American psychiatrist Stuart Grassian, formerly of the Harvard Medical School and a frequent expert witness in court cases, reported data from interviews with more than 200 solitary inmates. He concluded that solitary confinement can cause specific psychiatric syndromes, such as hyper-responsitivity to external stimuli, perceptual distortions, illusions and hallucinations, panic attacks, difficulties with thinking, concentration and memory, intrusive obsessional thoughts, overt paranoia and problems with impulse control (Grassian, pp 335-6). He noted that people with at least average intelligence and healthy personality functioning were better able to withstand the deprivation of isolation, but that those with “borderline or psychopathic functioning,” the more usual inmate, were “especially at risk for severe psychopathologic reactions to such isolation.” He found that “severe and prolonged restriction” of environmental stimulation of solitary confinement, is “toxic to brain functioning” (Grassian, p 349).

Grassian noted the accumulation of similar results from over a century of observations on solitary. He noted research that showed that “even a few days of solitary confinement will predictably shift the electroencephalogrm (EEG) pattern toward an abnormal pattern characteristic of stupor and delirium” (Grassian, p 331). The absence of stimulation in solitary, “sensory deprivation,” makes a person hyper-responsive to stimulation when it occurs, which becomes noxious and irritating, prompting withdrawal.

The Canadian history of abuse

There is a long, sorry, history of the use of solitary confinement in Canadian prisons, federal (for prisoners sentenced to 2 years or more), provincial and territorial (under 2 years), and juvenile.

Solitary confinement is usually called “segregation” by correctional authorities. Other terms used for it or similar housing conditions are “protective custody,” “special needs units” and “special handling units.” “Supermax” prisons, two in Canada, many in the U.S., also have many similarities.

Legally, there are several forms of solitary itself: “disciplinary,” as a penalty for an infraction in prison, and “administrative,” at the discretion of the warden, which can be for reasons of the safety of the inmate, other inmates, staff and the prison.

There is solid documentation of the harm of solitary confinement in Canadian prisons, notably, Jackson’s two books, Prisoners of Isolation and Justice behind the Walls: Human Rights in Canadian Prisons. A more recent resource is the report of the West Coast Prison Justice Society, Solitary: A Case for Abolition, 2016.

The prolonged use of solitary for eight inmates at the Kingston Prison for Women, after an attempted escape, resulted in a comprehensive study by Justice Louise Arbour. Her report on the “events” found that the impact of solitary was “seriously harmful.” Specific harms included “perceptual distortions, auditory and visual hallucinations, flashbacks, increased sensitivity and startle response, concentration difficulties and subsequent effect on school work; emotional distress due to the extreme boredom and monotony; anxiety, particularly associated with leaving the cell (Arbour, p 140).

Patterns of discrimination in the use of solitary have long been obvious. The annual report on federal prisons noted the reaching of a “sad milestone” for 2015-2016, that 25% of inmates were indigenous, 35% in the case of women prisoners. While the federal inmate population grew by 10% from 2005 to 2015, the indigenous inmate population increased by more than 50% (Canada, Annual Report of the Office of the Correctional Investigator).

The recent report for Ontario showed that black inmates are consistently overrepresented in administrative segregation, and aboriginal inmates “continue to have the longest average stay in segregation compared to any other group.” A large number of inmates have mental health problems, even more in solitary. It is well known that solitary makes mental health worse (Ontario, 2017). These are the chief reasons that the Ontario Human Rights Commission has advocated a ban on solitary (Ontario Human Rights Commission, 2015).

Spectacular cases of suicide in Canadian prisons have resulted in much information emerging from inquests and subsequent inquiries. Three examples are:

  1. Eddie Nolan, who committed suicide in 1974 after 2 weeks of segregation at Millhaven; Prisoners’ Justice Day was established on the first anniversary of his death, August 10;
  2. Ashley Smith, a 14-year old, originally convicted in 2003 of a trivial offence, “disturbing the peace,” spent years in prison amassing new offences and self-harming. She was frequently transferred, until she committed suicide in 2007, while under “suicide watch” at an Ontario adult prison for women.
  3. Edward Snowshoe, an indigenous man from Ft McPherson, committed suicide in 2014 after 162 days solitary, in a Manitoba prison far from home.

A notorious case, not of suicide, but of being “lost in the system,” is Adam Capay, a First Nations man who spent 1560 days in “administrative segregation,” at the (provincial) Thunder Bay prison, on remand on a murder charge.

The following poem is by Jack McCann, a prisoner held in isolation in the B.C. Penitentiary for a total of 1421 days, 754 of them consecutive. His lawsuit resulted in a finding of isolation constituting “cruel and unusual punishment,” recounted by Jackson (Prisoners of Isolation).

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.

Alternatives to solitary confinement, some examples

There are now a number of examples of experiments on the replacement of solitary confinement with other kinds of regimes, such as a therapeutic community or a cottage system, some with new programs introduced into existing prisons. Brief mention only can be made, but these examples show that alternatives are feasible, at varying levels of cost.

  • In New York state, after a comprehensive review of the harm of solitary confinement (Kaba) an alternative program was established, Clinical Alterative to Punitive Segregation. CAPS entailed a full range of therapeutic activities, individual and group, art, medication, counselling and community meetings (Glowa-Kollisch, “From Punishment to Treatment”). Increased staff resulted in increased costs, but the program was deemed “effective,” with reduced rates of injury and self-harm.“
  • In Colorado, as a result of agitation for reform, adopted laws from 2011 to 2013 to reduce the use of solitary. A report by the American Civil Liberties Union found that considerable progress had been made, seen in the reduction in male inmates in administrative segregation from 7% of prisoners in 2011 to 1% in 2015; in the case of women the number from 39 in 2011 to zero by 2015 (West Coast Prison Justice Society, p 63).
  • Numerous states have reduced the use of solitary, particularly for youth and the mentally ill (Goode, “Prisons Rethink Isolation”).
  • A British women’s prison, Styal, stopped isolating prisoners who harmed themselves or others, but instead brought in volunteer counsellors and mental health specialists. “Situations that previously led to segregation now resulted in increased human interaction and assistance.” (Lupick, “Correctional Service Canada ignores repeated calls for reform on solitary confinement”). However, segregation was reintroduced on the failure to provide adequate resources for those with mental illness (West Coast Prison Justice society, p 68).
  • The Alouette Women’s Prison in B.C. for several years adopted a healing model, with substantial use of First Nations healers. It became unusual for a woman to be sent to segregation. The warden, Brenda Tole, since retired, reported to the Standing Committee on Public Safety and National Security that she had “not seen any benefit from isolating an individual from support, comforts and human contact for extended periods of time. If anything, this procedure tends to escalate problem behviours.” Instead, what had benefited inmates was “not isolation, but rather extra staff or contractors to engage with them and close attention from health professionals” (House of Commons).
    The physician involved, Dr Ruth Martin, in her evidence to the same committee, stressed the need for health services, observing that most women incarcerated were there from crimes “due to their disordered health and social lives.” She saw improved health as key to their successful reintegration into society. From her 16 years of experience, she concluded that “the use of solitary confinement does not enhance an individual’s mental health, it worsens it, especially among those with pre-existing mental health difficulties.”
  • Justice Arbour, in her 1996 report, flagged alternatives developed in other prisons, notably the provision of safe space for inmates to deal with rage and other emotions more appropriately. She noted the use of peer support groups, an inmate committee, native sisterhood and elders and a citizens advisory committee (p 187). She urged that we “break the mind set which assumes the inevitability of segregation” (p 189).
  • In 2016, then President Obama ended solitary confinement for juveniles in federal prisons, however that involved only a small number. He cited the “devastating lasting psychological consequences” found from solitary, that it made inmates “depressed, anxious, socially withdrawn, paranoid and more likely to lash out.”

European examples are helpful for Canada, particularly because their rates of imprisonment are much lower than ours. Some European countries use considerable solitary confinement, but in some there are strict limits. Solitary in Germany cannot exceed four weeks in a year for an inmate, in the Netherlands two weeks.

Recommendations from the B.C. report cited began with how to start the process to abolition or radical reduction: reduce the use of custody at all (Canada’s rates of incarceration are high, although lower than the U.S.); reduce also the numbers in “high security” and pre-trial custody. Diversion programs should be expanded, especially for those with mental illness. If solitary continues to be used, the report recommended the training of staff for “dynamic security,” meaning less confrontational staff-prisoner relations. It advocated also “trauma-informed” correctional practices, since such a large proportion of inmates had themselves suffered abuse (West Coast Prison Justice Society).

Gender and solitary

There are complications by gender for solitary confinement, beginning with the fact that 90% of prisoners in Canada (at all levels) are men. Women prisoners are more likely than men to suffer from some mental illness, and are less often convicted of violent offences. Women prisoners often are mothers, and many give birth while in prison. Baby care is an issue. The voluntary organizations that provide services to, and advocate for, prisoners are split by gender: the John Howard Society for men, the Elizabeth Fry for women. There is apparently an agreement that neither will make recommendations relating to the other gender.

The Canadian Human Rights Commission supports “the end of the use of solitary confinement,” for all federal inmates, beginning with women and those “suffering mental distress.” In 2016, it asked the minister of Public Safety specifically to impose a ban on its use for women, “who more often than not have themselves been victims of abuse” (Landry, 2016).

The Canadian Association of Elizabeth Fry Societies supports the abolition of solitary for women, while the John Howard Society does not support abolition for men, but lesser reforms only. The Disabled Women’s Network supports abolition for women (DAWN/RAFH, 2017).

According to former director of the E Fry societies, now Senator, Kim Pate:

More than 1 in 3 women in federal prisons are indigenous. 91% have histories of abuse. Many also experience disabling mental health issues. We must end the use of segregation/isolation and decarcerate, At a minimum, we must implement Call to Action #30 of the Truth and Reconciliation Commission.

(That recommendation calls for elimination of the over-representation of aboriginal people in custody, with programs and monitoring to that end. Call to Action # 31 specifies adequate funding for programs for community sanctions as alternatives and tackle the causes of offending.)

The Elizabeth Fry societies call for an end to segregation in any form, that is, any separation of prisoners from the general population, not only for solitary, the most extreme form of confinement.

The legal problem is obvious: any legislation ending solitary for one gender (women) would be challenged as discriminatory under human rights acts, federal, provincial and territorial.

The (Ontario) Sapers report recommendations

The Ontario government in 2016 commissioned the federal Correctional Investigator, Howard Sapers, to conduct a study of the use of segregation in Ontario. His 194-page report (Ontario, 2017), gives a thorough review of the existing system and its abuses. His detailed recommendations for change would go a long way to ending the worst abuses. The Ontario Minister of Community Safety and Correctional Services, Marie-France Lalonde, promptly agreed to their implementation. Key recommendations would:

  • end the use of solitary for the mentally ill, those with serious medical conditions and chronic self-harming behaviour;
  • establish base conditions for 5 categories of inmate, substantially reducing the sensory-deprivation aspects of segregation as now practised.
    1. Disciplinary Unit (for offences in prison, and when waiting for adjudication on serious misconduct)
    2. Protective custody (for those requesting it)
    3. Stabilization (for inmates with mental illness or self-harm, to reintegrate)
    4. Behavioural management (where inmate poses a threat to the safety or security of the institution), by accommodation in smaller groups, not solitary
  • Medical units (where specialized housing required for health needs)
  • The overall limit would be 15 days per stay, a 60-day maximum per 365 day period. However, terms could be longer, even indefinite, with the consent of the minister.

Sapers gave appropriate, serious, attention to health conditions, to make specific recommendations for the provision of fresh air and natural light, and adequate darkness for sleep at night (lights on 24/7 is standard in Canadian solitary). He called for best practice standards in the provision of health care and medical needs.

What’s wrong with the Sapers report? It is known that the harm caused by solitary confinement begins with stays as short as a few days or 48 hours, much less than the 15 days and 60 days proposed. Indefinite solitary would still be possible, with the minister’s signature.

Solitary would still be available as a “disciplinary” measure.

Many of the recommended changes would require significant expenditure, for the renovation of current buildings and building of new facilities, staff increases and increased training.

The Sapers report also related useful American examples of jurisdictions that have radically reduced the use of segregation.

The Ontario government, through its acceptance of the Sapers recommendations, is at least committed to substantial, substantive, improvements; we urge it to take the next step. No other province or territory so far has given any indication of serious change. We intend to approach them all to advocate abolition.

The federal government’s proposed reform, Bill C-56

On 19 June 2017, the federal Minister of Public Safety, the Hon Ralph Goodale, after prevaricating about the need for legislative reform at all, announced some, minimal, reforms. Bill C-65 would seem to institute a new 21-day limit per stay in solitary, to be reduced to 15 days in a year and a half, but discretion is left to wardens and the Commissioner of Corrections to extend the term. There is no stated limit to the number of solitary terms per year. Oversight is limited. The bill, in contrast with the Ontario commitment, would include no ban on solitary for the most vulnerable.

The minister acknowledged that, on mental health problems, “you don’t solve that problem by confining them to administrative segregation. In fact, that probably makes the problem worse.” Actually, there is abundant evidence that even short stays (as low as 48 hours) cause harm. The United Nations report of 2011 is crystal clear: “the negative consequences of sensory deprivation can be seen as early as 48 hours after segregation” (UN, Torture and other cruel, inhuman or degrading treatment or punishment).

The Campaign for the Abolition of Solitary Confinement

Many experts who know the serious consequences of solitary confinement nonetheless hold out the prospect of its reform: minimal standards, independent review of cases and limits to terms. Jackson devised a detailed Model Segregation Code to ensure oversight and procedural fairness. He also discussed the argument (not advocating it) that prisons themselves should be abolished, rather than solitary confinement within them (Jackson, Prisoners of Isolation).

We can see the need to isolate inmates for short periods of time in some cases, but this means hours (24? 36? 48?), not days or weeks, pending the restoration of charges. Where criminal offences have been committed (or deemed to be), criminal penalties are available for serious culprits, the loss of privileges for less serious. Sensory deprivation should not be a penalty, or, disciplinary segregation should be abolished.

Inmates threatening suicide or self-harming should not be placed in solitary. Inmates needing protection from other inmates need protection, but again sensory deprivation should not be the price of it. As per the recommendations of Sapers, programs should be available to such inmates, and various forms of human contact facilitated, by prison visitors, family members, indigenous elders, chaplains.

The Campaign for the Abolition of Solitary Confinement is a voluntary organization, formed in May 2017, with abolition the goal, for federal, provincial and territorial prisons, adult and juvenile. Our members include academics (especially social scientists and criminologists), retired judges (current judges cannot take a partisan position), practising lawyers and former MPs.

There is wide support in Canada for the abolition of solitary confinement for juveniles, the mentally ill, pregnant women and new mothers. Most organizations concerned with civil liberties and prisoners’ welfare, however, have gone no further than to call for a ban on use for specific categories of people and limits in terms, often with judicial or other independent oversight.

Our focus for action is on the federal government, which, after prevaricating on the need for legislation at all, committed to some reforms, far short of what we recommend and what the Ontario government has agreed to do. As well, the federal Youth Criminal Justice Act should be amended by adding a prohibition of the use of solitary confinement.

The time has come!

Canada has abolished capital punishment, flogging, hard labour in prisons and bread and water diets. We now seek this next reform. Rehabilitation is the goal of our prison system, and most prisoners will be released eventually.

We note that societies have recognized the need for basic reform in other respects, notably for slavery and child labour. At some point, the purpose evolved from reducing the abuse (less flogging, reduced work hours) to outlawing the act itself. We say the time has now come for Canada to end the use of solitary confinement.

References

Arbour, Louise. Commission of Inquiry into Certain Events at the Prison for Women in Kingston. Ottawa: Public Works & Government Services 1996. (major source on what is wrong in Canadian federal system, with investigation of incidents at Kingston Prison for Women)

Canada. Annual Report of the Office of the Correctional Investigator 2015-2016. Ottawa June 30 2016 (report by Howard Sapers to the minister, details over-representation of indigenous inmates, especially women)

College of Family Physicians of Canada. Prison Health, Community of Practice in Family Medicine. Position Statement on Solitary Confinement. Online 7 August 2016. (Official position for abolition of solitary confinement, medical arguments)

DAWN/RAFH. Disabled Women’s Action Network. Women with Disabilities in Canada, Report to the Committee on the Rights of Persons with Disabilities on the Occasion of the Committee’s Initial Review of Canada, February 2017)

Dickens, Charles. American Notes for General Circulation. London: Chapman & Hall 1842. (Observations on visits to solitary prisons)

Glowa-Kollisch, Sarah, et al. “From Punishment to Treatment: The ‘Clinical Alternative to Punitive Segregation’ (CAPS) Program in New York City Jails.” Int. J. Environ. Res. Public Health 13,2 (2016). (example of clinical treatment as replacement of solitary in New York prisons)

Godwin, William. An Enquiry Concerning Political Justice and its Influence on Morals and Happiness. Dublin: Luke White 1793.

Goode, Erika. “Prisons Rethink Isolation, Saving Money, Lives and Sanity.” New York Times online 10 March 2012 (examples of U.S. radical reductions in solitary)

Grassian, Stuart. “Psychiatric Effects of Solitary Confinement.” Washington University Journal of Law & Policy. 22 (January 2006):325-83. (Major source on mental health effects, mainly U.S.)

House of Commons, Standing committee on Public Safety and National Security, hearing 16 March 2010 (statements on solitary and women’s prisons)

Ignatieff, Michael. A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1795-1850. New York: Pantheon 1978. (Good source on history of prisons and isolation)

Jackson, Michael. Prisoners of Isolation. Toronto: University of Toronto Press 1983 (history of solitary in U.K., U.S. and Canada, court cases on, model code for administrative segregation)
— Justice behind the Walls: Human Rights in Canadian Prisons. Vancouver: Douglas & McIntyre 2002. (Canadian solitary confinement, with later material)

Kaba, Fatos, et al., “Solitary confinement and risk of self-harm among jail inmates.” American Journal of Public Health 104,3 (2014):442-7. (study of New York prisoners shows association of self-harm with solitary)

Landry, Marie-France. “We Must Put An End to the Use of Solitary Confinement in Federal Prisons.” Huffington Post op-ed, 16 January 2016

Lupick, Travis. “Correctional Service Canada ignores repeated calls for reform on solitary confinement.” Georgia Straight 13 March 2014. (Gives examples on good results from the reduction of solitary)

Martin, Ruth Elwood; Korchinski, Mo; Fels, Lynn and Leggo, Carl, eds. Arresting Hope: Women Taking Action in Prison Health Inside Out. Toronto: Iguana 2014. (Examples of alternative measures in a Canadian women’s prison)

Ontario. Community Safety & Correctional Services. Segregation in Ontario: Independent Review of Ontario Corrections. Queen’s Printer March 2017 (Sapers report, 194 pages of good data and detailed recommendations for limits to solitary for Ontario)

Ontario Human Rights Commission. Submission to the Ministry of Community Safety and Correctional Services Provincial Segregation Review 28 May 2015. (Advocates elimination of solitary confinement)

Smith, Peter Schariff. “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature.” Crime & Justice 34,1 (2006):441-528. (Meta study, across many countries, of a large number of reports on the consequences of solitary)

United Nations General Assembly. Resolution 66/150, Torture and other cruel, inhuman or degrading treatment or punishment, A/RES/66/150 19 December 2011 (U.N. statement on solitary as torture)

West Coast Prison Justice Society. Solitary: A Case for Abolition. November 2016 online (review of history of solitary, alternatives, with recommendation for abolition)

website: Www.abolishsolitary.ca email: info@abolishsolitary.ca

The Medical Role in Solitary Confinement

British Medical Association (BMA) | Updated 2018-04-18 | see https://www.bma.org.uk/collective-voice/policy-and-research/equality/the-medical-role-in-solitary-confinement for full resources and downloads

Guidance for doctors on the use of solitary confinement in the youth secure estate

View looking through security inspection window to a detained prisoner in a modern UK prison cell with locked door (photo source: BMA)

Isolation, segregation, separation, removal from association, single unlock: these names are used, often interchangeably, across detention settings to describe the practice of solitary confinement, where an individual is physically and socially isolated from others for a prolonged period of time.

Its use is widespread in the youth justice system in the United Kingdom, where it is estimated that up to 38 per cent of boys in detention have spent time in solitary confinement, with stays of over 80 days being reported. Compounding this is a growing practice of holding children in conditions of solitary confinement in their own cells or rooms for upwards of 22 hours a day – largely as a result of staff shortages and increased violence in the youth justice system.

There is clear evidence that solitary confinement can have a profound, and lasting, adverse impact on health and wellbeing. As a result, we do not believe that its use can ever be sanctioned on children and young people.

It is clear, however, that as long as the practice continues, the youth justice system must ensure that the health needs of those in solitary confinement are met.

Read more (BMA website)

It is time to end solitary confinement

Lynn McDonald | Policy Options / Options politiques | 25 July 2018

It is widely agreed that Canada’s use of solitary confinement is excessive, in both federal (inmates with sentences of two years or more) and provincial prisons (under two years). I choose to use the term “solitary confinement,” although prison authorities prefer the more innocuous “administrative segregation.” Solitary confinement entails lack of meaningful human contact and sensory deprivation. It costs lives (40 percent of prison suicides take place in solitary), results in increased self-harm and suicide attempts, and causes or exacerbates mental illness. First Nations inmates and mentally ill prisoners are disproportionately selected. Moreover, solitary confinement does not make correctional institutions safer for staff or inmates, and the cost per inmate is higher for solitary than for the general population.

The federal government has had to answer for its use of solitary in two lawsuits that were launched in 2015; the Ontario case was decided in December 2017 and the British Columbia case in January 2018. The judges in both largely rejected the evidence brought by Correctional Service Canada (CSC). Yet the two decisions are under appeal.

The government has responded to rising criticism by reducing its use of solitary to roughly half of what it was three years earlier. It brought Bill C-56, An Act to Amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act, to the House of Commons. It would introduce some safeguards, but with loopholes, the worst being the power given to wardens to overrule limits. The Bill itself is on hold (it was never debated) while the appeals are proceeding.

The Ontario government under Premier Kathleen Wynne responded more vigorously to criticism of its poor record by hiring former federal corrections investigator Howard Sapers to review its practices and recommend changes. It then acted promptly on his recommendations, which were both numerous and comprehensive and which featured limits and reviews on the use of solitary. Bill 6, the Correctional Services Transformation Act, 2018, passed just before the legislature was dissolved for the June 7, 2018, provincial election. What will happen now is not clear, as Progressive Conservative MPPs voted against the bill, while the NDP supported it.

The Act is based on the belief that the system can be fixed by implementing tighter rules, more reviews and better oversight by health care professionals to identify suicidal inmates and those deteriorating badly and get them out of solitary in time. But there is no evidence that such confidence in health care professionals is merited. In the tragic example of Ashley Smith, the teenager who strangled herself in her cell in 2007, it was a psychologist who decided that her repeated suicidal gestures were attention-getting stunts and ordered correctional officers not to enter her cell to stop her.

The Ontario Human Rights Commission in 2017 called for no less than an end to the practice of segregation, arguing for interim measures of “strict time limits and external oversight to reduce the harm of segregation on vulnerable prisoners.” The Campaign for the Abolition of Solitary Confinement calls for the abolition of solitary as a disciplinary measure and for the abolition of all versions of “administrative” segregation. The campaign has no confidence in partial measures to protect vulnerable prisoners.

How much solitary is too much?

The United Nations’ Mandela Rules, named after Nelson Mandela, who knew solitary from sad personal experience, stipulate a maximum of 15 days at a stretch. This was never Mandela’s recommendation; he is on record only as saying that he found solitary “the most forbidding aspect of prison life.” The 15-day rule seems to have been a compromise, proposed by the UN’s special rapporteur on torture, Juan Méndez (another solitary survivor), as the way to end prolonged and indefinite solitary terms. His statement that over 15 days’ solitary constitutes “torture” has been adopted by most countries. It is the cornerstone of both Canadian federal and provincial policy. Méndez’s report, however, makes it clear that the harm can start at two days, and there never has been any evidence that 15 days is in any way a valid marker.

The Canadian court cases have been about prolonged or indefinite solitary confinement, the worst possible scenario for inmates. Some First Nations inmates have been effectively lost in the system for hundreds of days. Indigenous inmates form 26.4 percent of federal inmates, although they are under 5 percent of the population. The Indigenous Women’s Association reports that in 2015-16 Indigenous women made up “42% of the maximum security women’s population in Canada, and 50% of segregation placements.”

Black Canadians are also overrepresented both in prison and in solitary. The same applies to mentally ill inmates, yet undertakings to end the use of solitary for them are routinely subverted. The definitions of “seriously mentally ill” are narrow. The preferred option of sending the mentally ill to health care agencies is rarely used.

In June 2018, Prisoners’ Legal Services of Vancouver launched a new challenge to Correctional Service Canada, in a human rights case arguing against the use of solitary for mentally ill inmates. Given the narrow definition of “seriously mentally ill” used by CSC, many inmates are in fact locked up, in solitary or observation cells, put in restraints and pepper sprayed. Observation cells, noted a First Nations inmate, are worse than ordinary segregation: stripped down to an anti-suicide smock and mattress, with constant observation and no therapy.

Can the system be fixed?

Numerous civil society organizations think the system can be fixed. The lawsuits undertaken by the Canadian Civil Liberties Association, the BC Civil Liberties Association and the John Howard Society focused on prolonged solitary; they have not argued that solitary is wrong in itself. A recently formed Coalition on Reforming Segregation in Ontario’s Correctional Institutions again assumes that limits and reviews will work, and that solitary is not in itself wrong.

But safeguards already exist, in both federal and provincial legislation; clearly they are not sufficient. Solitary is supposed to be used only as a last resort, when there is “no reasonable alternative,” and inmates are supposed to be let out “at the earliest appropriate time.” No doubt, the 15-day limits will reduce the amount of suicides, attempted suicides, self-mutilation and mental deterioration, but we must expect that these harms will continue. The 15-day limit is based on pure supposition.

Despite overwhelming evidence, few organizations geared to civil liberties or prison reform have so far opted for abolition. Canada has abolished the use of capital punishment, corporal punishment and a bread-and-water diet as deterrents to crime. Officially, all our prison systems are intended to be rehabilitative. Most prisoners will eventually be released into society. Solitary confinement is an anomaly in an otherwise relatively humane system.

The Campaign for the Abolition of Solitary Confinement was formed in May 2017, to advance the goal of abolition. It holds that lesser measures will not suffice, although limits and reviews will reduce harm and are better than the status quo. The campaign presented a brief in March 2018 to the Ontario legislative committee reviewing Bill 6, calling for full abolition while supporting the improvements in the Bill. The brief also unsuccessfully proposed an amendment to widen the ban on solitary that applies to pregnant women and nursing mothers to include inmates under 25 years old, on the grounds that their brains are still developing and that solitary could do lasting harm.

Before this campaign was launched, only one Canadian organization, the College of Family Physicians of Canada, had called for full abolition (the Elizabeth Fry Societies have called for abolition for women inmates). The time has come to end this barbaric practice forever and for all.

Lynn McDonald is professor emerita of sociology and a former member of Parliament (New Democratic Party). Her private member’s bill, the Non-smokers’ Health Act, 1988, was the first legislation in the world to establish smoke-free work and public places.

Reply from Minister Lalonde

Ministry of Community Safety and Correctional Services
Office of the Minister
25 Grosvenor 18th floor Toronto ON M7A Tel: 416-325-0408 MCSCS.Feedback@ontario.ca
MC-2018-391

Apr 09 2018                        By e-mail

Dear Dr. McDonald and Colleagues:

Thank you for your e-mail regarding recommendations for corrections reform. I appreciate the feedback provided and the collective insight which you and your colleagues have shared.

Ontario is working hard to modernize the justice system to make it more accessible, efficient and responsive to the needs of people across the province. As part of this modernization, my ministry will continue to move forward with the changes that are necessary to transform Ontario’s correctional services to create a system that is modern, focused on prevention, community-based and people-centred.

On February 20, 2018, I introduced Bill 195, the Correctional Services Transformation Act. Given the prorogation of the Legislature on March 16, 2018, the proposed legislation was reintroduced as Bill 6, the Correctional Services Transformation Act on March 21, 2018. If passed, Bill 6 will become the foundation for the boldest transformation of our corrections system in a generation. Our proposed changes are the result of tireless work with corrections staff, partners and several comprehensive expert reviews.

Our shared goal has always been the rehabilitation and reintegration of individuals within our system. This proposed legislation would result in better support and care for those in our custody, and improved outcomes for those under our supervision.

The proposed legislation, if passed, would modernize corrections by:

  • Setting rules around, and clearly defining, segregation by aligning with international standards and phasing out its use for vulnerable individuals.
  • Improving conditions of confinement by requiring minimum living standards that would apply to all adult inmates and bringing consistency to the system.
  • Increasing transparency and accountability by establishing an independent Inspector General to ensure compliance with the legislation and all policies.
  • Clearly defining via legislation, the health care services that incarcerated individuals should have access to, including treatment of disease or injury, health promotion, disease prevention, dental care, vision care, mental health and addictions care, and traditional Indigenous healing and medicines.
  • Better supporting rehabilitation and reintegration by requiring individualized, evidencebased assessments for every inmate.

In order to be successful in the coming years, our government has implemented the right supports, which has included more front-line staff, such as health care staff and 2,000 new correctional officers. In addition, there will be increased mental health support through the addition of new mental health nurses and enhanced staff training.

As part of our corrections transformation strategy, we are working with the Ministry of Health and Long-Term Care (MOHLTC) to transform health care services in correctional facilities. This will include exploring options to shift oversight and the provision of health care services to MOHLTC to improve health outcomes for correctional clients. Providing health care services for those with complex needs and ensuring continuity of care for those entering and leaving our system are key priorities.

These measures are part of our vision for a system that is built around dignity, human rights and accountability. We will continue working together with our dedicated correctional staff and partners to make this transformation a reality.

Thank you again for your e-mail.

Sincerely,

Marie-France Lalonde Minister

 

Bill 6, Correctional Services Transformation Act, 2018

(as submitted to the Standing Committee on Justice of the Ontario Legislative Assembly, April 2018)

See also Minister Lalonde’s April 9 letter to the Campaign for the Abolition of Solitary Confinement.


The Campaign for the Abolition of Solitary Confinement commends the Government of Ontario for the many improvements evident in Bill 6: the “transformation” claim is appropriate. Our critical remarks are confined to Parts V and VI on solitary confinement, under whatever name, segregation or restrictive placements.

These provisions, when enacted, will likely result in fewer suicides and attempts, less self-harm and mental deterioration, but it must be expected that all these will continue, for the harm of solitary confinement does not begin at 16 days. On solitary confinement, Bill 6 amounts to harm reduction, not transformation.

A prison sentence does not justify practices that harm health, as the sensory deprivation entailed in solitary confinement does. Meaningful human contact is essential. Human beings also need fresh air, sunlight, exercise, nutrition and sleep to remain in or regain health. We were pleased to see specification for these physical requirements (fresh air, etc.). Lack of meaningful human contact is no less, and probably more, harmful to health.

Bill 6 gives great attention to the details of improving the administration of solitary, to prevent flagrant abuses. It seems to have ignored some basic facts:

  1. There is substantial evidence, from many countries and over a long period of time, that the harm of solitary begins with only a couple of days. The contention that it is only lengthy or indefinite solitary that is harmful has been argued in Canadian courts, but not accepted in recent court rulings (2017 ONSC7491 and 2018 BCSC62; and see Bailey Fox, “You are not Alone: Ontario and British Columbia Invalidate Solitary Confinement,” Court.ca February 6 2018).
  2. The “Mandela Rules” were named after Nelson Mandela, who was made an honorary citizen of Canada, but he never sanctioned them. He described the horrors of solitary, without ever specifying that a limit of 15 days would prevent them.
  3. The UN Special Rapporteur who gave 15-days as the cut-off for solitary to constitute “torture” specified that harm can begin after as little as 48 hours (UN Special rapporteur Juan E. Mendez, 18 October 2011). Why should Ontario’s aim be only the prevention of torture?
  4. There is no evidence to show that any type of inmate (or person) benefits from solitary confinement.
  5. Human beings are social beings and require meaningful human contact to be healthy. Yet there is no provision in Bill 6 to ensure meaningful human contact. We note that the Irish Prison Reform Trust, which advocates the abolition of solitary confinement, calls for, as an intermediate measure, out-of-cell time of 8 hours for those in “restrictive regimes,” 12 hours out-of-cell time as the ultimate target for all prisoners (Behind the Door: Solitary Confinement in the Irish Penal System. By Irish Penal Reform Trust. February 2 2018).
  6. The fact that solitary confinement is used as a punishment, “disciplinary segregation,” is a clear admission that it is by its nature punitive, and not only for long or indefinite stays.

Monitoring: we recommend that the ministry publish comparative data both on patterns of use of solitary, number of inmates at what terms, type of inmate in solitary (notably Indigenous) and harms (suicides, attempts, self-harm, mental deterioration), to permit comparisons before and after implementation of the legislation. Data should be provided distinctly for disciplinary and non-disciplinary solitary.

Specifics:

Section 55 (1) provides for at least two visits per week, an improvement, but this falls far short of ensuring adequate meaningful human contact. We welcome the specific exclusion of communication through meal hatches counting as visits, in Section 63 (1) (b).

Section 57 (1) specifies that inmates in segregation retain all rights and privileges of inmates in the general population, except those that cannot be because of their confinement. It is well known that inmates in solitary in practice lose access to educational and rehabilitation programs. How will this be changed? Again, data are required to ascertain if the new wording in fact resulted in better practice.

Section 57 (3) Segregation prohibitions: we welcome the short list of exclusions from solitary: pregnant woman and those who recently gave birth; the chronically self-harming or suicidal; significant mental illness or developmental impairment or mobility problem.

We are concerned with the use of “chronically” with self-harming and suicidal. We know of no evidence that there is any cut-off in numbers of attempts. How many attempts at suicide must an inmate make before he or she is considered “chronically” suicidal?

Are Regulations intended to address this point?

Section 57 (3) (e)

We urge that another prohibition be added: any person under the age of 25. The brains of young people are still developing up to the age of 25, so that the sensory deprivation aspects of solitary are particularly harmful to the young. We note that, in considering an appropriate age of access for cannabis use, neurologists advised 25 years; that is, that the human brain is still developing up until that age.

Section 58 (1) The 15 day limit is an important improvement over existing practice, as is the 60-day maximum over a 365-day period, Section 59 (1); and the provision that an inmate’s transfer, Section 57 (4) does not constitute a break in the 60 days. However, provision is made for the superintendent to authorize longer solitary, for the same reasons as before. This provision calls for monitoring.

Section 60 Limits of non-disciplinary segregation; we note that the justification for the use of solitary uses the same language that has been inadequate for preventing abuses in the past.

Section 61 Review. The superintendent is now required to provide a written record of options that were exhausted before the decision for solitary was made, and must review, Section 61 (1). A visit is required, Section 61 (3).

We recommend that Bill 6 be amended to reduce the maximum length of stay of solitary, say, to 10 days after 3 years of operation of the bill, and to 5 days after 2 further years, to 40 days maximum for a year and then 20 days. This should apply also to disciplinary solitary, Section 74 (2).

This amendment would require also amendment of the times for review in Sections 65 and 66.

Part VI Discipline

Flogging, the paddle and bread-and-water diets were eliminated decades ago in Canada as punishments within prison. It is time for the use of solitary as a punishment to go. It contributes nothing to rehabilitation but to the contrary frequently if not always has deleterious consequences. All inmates in the Ontario prison system can be expected to be released, desirably not in worse condition than when they entered.

For the most serious offences committed in prison, criminal charges are available; for less serious loss of privileges should be the penalty.

Section 74 (2) 1. While disciplinary solitary remains on the books, we commend the provisions of Part VI to limit its terms.

Reducing the limits: We recommend that the same reduced limits proposed above for non-disciplinary solitary apply also to disciplinary. In each case it would require a new clause in the bill.

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

Ministry of Community Safety and Correctional Services
Office of the Minister
25 Grosvenor 18th floor Toronto ON M7A Tel: 416-325-0408 MCSCS.Feedback@ontario.ca
MC-2018-391

Apr 09 2018                        By e-mail

Dear Dr. McDonald and Colleagues:

Thank you for your e-mail regarding recommendations for corrections reform. I appreciate the feedback provided and the collective insight which you and your colleagues have shared.

Ontario is working hard to modernize the justice system to make it more accessible, efficient and responsive to the needs of people across the province. As part of this modernization, my ministry will continue to move forward with the changes that are necessary to transform Ontario’s correctional services to create a system that is modern, focused on prevention, community-based and people-centred.

On February 20, 2018, I introduced Bill 195, the Correctional Services Transformation Act. Given the prorogation of the Legislature on March 16, 2018, the proposed legislation was reintroduced as Bill 6, the Correctional Services Transformation Act on March 21, 2018. If passed, Bill 6 will become the foundation for the boldest transformation of our corrections system in a generation. Our proposed changes are the result of tireless work with corrections staff, partners and several comprehensive expert reviews.

Our shared goal has always been the rehabilitation and reintegration of individuals within our system. This proposed legislation would result in better support and care for those in our custody, and improved outcomes for those under our supervision.

The proposed legislation, if passed, would modernize corrections by:

  • Setting rules around, and clearly defining, segregation by aligning with international standards and phasing out its use for vulnerable individuals.
  • Improving conditions of confinement by requiring minimum living standards that would apply to all adult inmates and bringing consistency to the system.
  • Increasing transparency and accountability by establishing an independent Inspector General to ensure compliance with the legislation and all policies.
  • Clearly defining via legislation, the health care services that incarcerated individuals should have access to, including treatment of disease or injury, health promotion, disease prevention, dental care, vision care, mental health and addictions care, and traditional Indigenous healing and medicines.
  • Better supporting rehabilitation and reintegration by requiring individualized, evidencebased assessments for every inmate.

In order to be successful in the coming years, our government has implemented the right supports, which has included more front-line staff, such as health care staff and 2,000 new correctional officers. In addition, there will be increased mental health support through the addition of new mental health nurses and enhanced staff training.

As part of our corrections transformation strategy, we are working with the Ministry of Health and Long-Term Care (MOHLTC) to transform health care services in correctional facilities. This will include exploring options to shift oversight and the provision of health care services to MOHLTC to improve health outcomes for correctional clients. Providing health care services for those with complex needs and ensuring continuity of care for those entering and leaving our system are key priorities.

These measures are part of our vision for a system that is built around dignity, human rights and accountability. We will continue working together with our dedicated correctional staff and partners to make this transformation a reality.

Thank you again for your e-mail.

Sincerely,

Marie-France Lalonde Minister

 

An Irish strategy for ending solitary confinement

Excerpted from ‘Behind the Door’: Solitary Confinement in the Irish Penal System. Irish Penal Reform Trust, 2018

1. Elimination of the use of solitary confinement:

1.1 The Minister for Justice and Equality should develop and consult on a Strategy for the Elimination of Solitary Confinement based upon principles of decarceration.

1.2 The Irish Prison Service should ensure, as a minimum, full compliance with the Mandela Rules and should amend its policy on ‘the elimination of solitary confinement’ (IPS, 2017) accordingly.

1.3 The Irish Prison Service should set the minimum out-of-cell time at 8 hours per day. Additionally, a target should be set of at least 12 hours’ out-of-cell time per prisoner per day, based upon meaningful human contact and access to services and activities.

1.4 The term ‘meaningful human contact’ should be defined as contact with family and peers; interactions with professionals, staff or volunteers within the prison system should not be used as a substitute for such contact.

1.5 Separation of a prisoner from others should not be permitted for reasons of punishment, but only for reasons of safety in emergency situations, and for the shortest possible period of time.

1.6 The placement in solitary confinement of adults with mental health difficulties or mental or physical disabilities should be prohibited.

1.7 The placement in solitary confinement of pregnant or breastfeeding women prisoners or mothers with babies should be prohibited.

1.8 Adequate community mental health services should be provided, including access to psychiatric beds, to ensure that no one is detained in prison who would be more appropriately accommodated in mental health facilities.

1.9 The Minister for Children and Youth Affairs should provide, as a matter of urgency, statutory rules governing detention of children. In line with the most recent Concluding Observations by the UN Committee against Torture, such rules should include an absolute prohibition of the use of solitary confinement for children.

2. Separation for reasons of protection:

2.1 The Irish Prison Service should research and develop a range of initiatives to address violence in prisons. These may include, but should not be limited to, restorative justice approaches and weapons amnesties.

2.2 The IPS should ensure all staff are trained on the impact of solitary confinement and restricted regimes as well as in conflict management techniques such as de-escalation

2.3 Prisoners being placed, or requesting to be placed, on a restricted regime for their own protection should be given information, in accessible language, about the implications of such placement including details of the restricted access to education, vocational training, association, etc.

2.4 Where a prisoner requests to be kept on protection for an extended period, this should be kept under constant review.

2.5 Special supports should be put in place to encourage prisoners to come off a restricted regime where it is assessed as safe to do so, including access to a step-down programme.

2.6 Prisoners on protection or other restricted regimes should be provided with meaningful access to work, training and education, as well as other activities and services. As far as possible this should be in association with other prisoners.

2.7 Prisoners on restricted regimes should have increased access to family contact, through telephone and visits.

2.8 The Prison Rules 2007 should be further amended to include regular examination of prisoners isolated under Rule 63 by a prison doctor. Such examination should include both physical and mental health assessment by appropriately trained medical personnel.

3. Access to justice:

3.1 There should be a mandatory notification provided to their solicitors where prisoners are placed on Rule 62 and Rule 6 3. Prisoners should also be informed that they have the right to contact their solicitor and should be given an opportunity to do so as soon as practicable.

3.2 There should be a mandatory notification to a legal representative in cases of placement in Safety Observation Cells and Close Supervision Cells, regardless of the length of time for which such placement is envisaged.

3.3 The situation of prisoners held in isolation and/or subjected to a restricted regime should continue to be afforded particular attention by the Inspector of Prisons, including through thematic inspections. The Government should provide the Office of the Inspector of Prisons with appropriate resources to enable it to fulfil its mandate in this regard.

3.4 Prisoners held in isolation and/or subjected to a restricted regime should have strengthened access to independent complaints mechanisms and should be afforded appropriate assistance to avail of those mechanisms.

4. Collection and publication of statistics:

4.1 The Irish Prison Service should regularly collect and publish data relating to the length of time prisoners spend on restricted regimes in all prisons.

4.2 Data relating to repeated and multiple placements of the same prisoner(s) on restricted regimes should be collected, in particular where such repeated placements concern prisoners with mental health difficulties and those segregated for reasons of discipline.

4.3 Separate statistics for Limerick (male) and Limerick (female) prisons, should be provided.

4.4 The Irish Prison Service should disaggregate data by other characteristics, including ethnicity, nationality, sexual orientation, and disability, to enable monitoring for potential disproportionate use of restricted regimes among particular groups.

To Ralph Goodale, Minister of Public Safety: 30 January 2018

Outdoor yard at Edmonton Institution. New rules say inmates will be given two hours rather than one hour of yard time. {photo: Office of the Correctional Investigator of Canada}

Hon Ralph Goodale, MP
Minister of Public Safety
30 January 2018

re: Abolition of solitary confinement

You and your staff, no doubt, as we, are studying the two recent decisions on solitary confinement (segregation). You will presumably redraft Bill C-56 before proceeding with it in the House, unless an appeal is planned.

The Marrocco decision (December 18, 2017), under appeal by CCLA, was inconsistent and unsatisfactory in many respects, but it was clear that the damage of solitary begins as early as 48 hours. The evidence for this is strong, and even acknowledged in the UN Special Rapporteur’s landmark statement of 2011. Yet the federal government is still fighting it. Justice Marrocco was not persuaded by much of its evidence, and we are appalled that such shabby material should be advanced by your department.

We, like the CCLA, are disappointed that the decision did not specify a limit, but would rely on the heretofore-undemonstrated ability of CSC officials to release an inmate from solitary before serious damage (suicide, self-harm, mental deterioration or the onset of mental illness) occurs. We suspect that there will be more litigation on this matter, if it is not addressed by better legislation.

We note, again, that reduction in the periods of use of solitary by CSC 2014-16 did not result in increased danger to correctional staff.

Justice Leask, on the BC Civil Liberties Association case (January 16, 2018), ruled that prolonged and indefinite solitary/segregation is unconstitutional. He did not specify a number of days, but considered that 15 was “sensible,” the compromise measure in the Mandela Rules. That would certainly reduce the harm of current solitary measures, but we continue to note the obvious: that the harm starts at 48 hours.

Some specifics:

  1. That solitary confinement is punitive is demonstrated by its continued use as a punishment for offences in prison; that it is limited to 30 days as a sanction (total 45 for multiple offences), while administrative segregation is (for the present) not limited, is an anomaly that should be ended. Disciplinary segregation should be abandoned, in favour of criminal proceedings in the case of serious offences and loss of privileges for lesser offences.
  2. On administrative segregation for an inmate’s self-protection, we recognize the need for physical separation for some inmates, but this should NEVER entail sensory deprivation. Sensory deprivation is cruel and inhumane, and amounts to torture –the only question being how soon it constitutes torture. It is harmful to all so treated and counter-productive to rehabilitation, the stated goal of Canada’s correctional system, at every level.
  3. Improvements such as two hours out of cell instead of one are not sufficient to avoid harm. Exercise in cages is not an alternative. Pending the abolition of solitary, we urge that CSC look to intermediate measures, such as substantial out-of-cell time and meaningful human contact.
  4. On the use of administrative segregation to protect prison staff, other inmates and the prison, we urge that CSC examine positive alternatives to segregation. Other jurisdictions have moved away from solitary, and European countries that incarcerate less have also been better in curbing solitary. In North America, Colorado is well in advance of Canada. Why not send officials there to see it, and/or invite officials from Colorado here to discuss their alternatives? New York banned the use of solitary for inmates under 18 and for pregnant women, and instituted other restrictions. Mississippi reduced its use of solitary by 75%. There are plenty of good examples.
  5. Programs for inmates in solitary/segregation: we urge that CSC do the necessary work to ensure that education and rehabilitation programs in fact happen; for First Nations inmates, access to elders and indigenous spiritual assistance as well.
  6. CSC is known to be set in its ways, its culture hostile to change, a problem we urge be addressed as a priority. Training workshops are used in other jurisdictions to bring in new programs, why not at CSC? The routine use of treatment plans for inmates and measures for de-escalating conflicts both require staff preparation and support.

Yours sincerely

[members of the Campaign for the Abolition of Solitary Confinement]


Send us an email to add your name to the letter: info@abolishsolitary.ca

It’s time to abolish solitary confinement

Lynn McDonald | Opinion | Canadian Centre for Policy Alternatives: The Monitor, Jan-Feb 2018

CANADA’S FEDERAL CORRECTIONAL investigator has described solitary confinement as “the most austere and depriving form of incarceration that the state can legally administer in Canada.”

However, he used the term “segregation,” the standard euphemism used in the corrections system. In reality, solitary means confinement in a very small cell, 23 hours a day, without meaningful human contact. It is the most extreme form of punishment after hanging, flogging, the paddle, and bread-and-water diets, all of which have been abolished in the prison system.

Solitary is used for several purposes in Canadian prisons: as punishment for infractions of prison rules; for the protection of staff and other inmates; and for self-protection (e.g., where an incarcerated former police officer fears attack). Suicidal and mentally ill inmates are still routinely placed in solitary, despite repeated reports showing how harmful it is for their already vulnerable state of mind.

The stated purpose of incarceration, for every type of prison in Canada, is rehabilitation. Solitary confinement was originally established with “penitence” in mind (time to reflect, no bad influences), hence “penitentiaries.” Solitary, however, soon proved to make inmates mad, not rehabilitate them.

There is now a vast academic and professional literature documenting the harm of solitary confinement, augmented by reports from coroners and inquiries on particularly scandalous cases. Recommendations are made, yet little changes. The federal government has reduced its use of solitary since 2014, likely in response to recent lawsuits, and notes that assaults on prison staff have not increased. But the government still insists that solitary is needed.

Proposed reforms

Both the federal and Ontario governments have promised legislative reform.

The Ontario government commissioned Howard Sapers, a former federal correctional investigator, to conduct a review of the use of solitary in Ontario prisons. His report, which was largely excellent, recommended better oversight of solitary confinement, a 15-day time limit for inmates in solitary (and a maximum of 60 days in a year), and the exemption of pregnant women, nursing mothers and the mentally ill. The Wynne government promptly committed to implementing these recommendations.

The federal government introduced its own reforms last spring in Bill C-56. As in Ontario, the legislation would limit stays in solitary — initially to 21 days, then dropping to 15 — and sets a maximum of 90 days per year for any inmate. However, wardens will be able to override these limits under certain circumstances, a loophole that was roundly criticized, along with other contradictory elements of the law.

For example, the 15-day limit is based on a United Nations declaration that solitary confinement beyond that point is tantamount to “torture.” Why 15 days? How is it that 16 days or more is cruel and unusual punishment, even torture, while 14 or 15 days in solitary would be fine?

Doctors have pointed out that both physical and mental harm occurs even with stays in solitary of two or three days. The UN report that recommended the 15-day limit itself acknowledged that harm occurs with as little as 48 hours, as a recent case in Ontario appears to demonstrate.

In December 2016, Soleiman Faqiri, an Ontario inmate with schizophrenia, died in solitary after being beaten and pepper sprayed by correctional officers 11 days after his arrest. It’s not clear what prompted the officers’ entry to his cell, and no charges have been laid.

n short, the 15-day limit is a compromise measure that is not based on evidence but indeed contrary to considerable research documenting harm. There is no good reason to stick to it.

Will correctional officers be at greater risk if solitary is abolished completely? Again, there is no good research to back up this widely held claim. Some countries effectively do without solitary and some U.S. states have radically reduced its use. Correctional Service Canada, and the equivalent provincial and territorial services, should be looking at alternatives.

Support for abolition

The abolition of solitary confinement has been endorsed by the College of Family Physicians of Canada, among other organizations. Some groups support abolition for women inmates, but such a law would likely result in a Charter challenge.

That solitary is disproportionately used for Indigenous and Black inmates and the mentally ill has prompted human rights commissions and civil rights groups to condemn it. However, the point remains that, even if applied equally to all groups, solitary is harmful.

By law, solitary confinement is supposed to be used only when there is “no reasonable alternative,” with release “at the earliest appropriate time.” The reality is that officials leave inmates in solitary for horrendous periods of time, and no one is held accountable for ensuing suicides or other consequences.

The time has come to stop the excuses, by legislating an end to solitary confinement.

Solitary confinement: abolition needed, not regulation

By Lynn McDonald in Hill Times, Ottawa, 4 December 2017, p.22

The federal government has been embarrassed into action by scandalous cases of inmates left in solitary for months or even years. It began reducing its use of solitary in 2014, to find, in a review in 2016, that there was no increase in danger to staff . Yet it continues to believe that solitary is needed. It’s not.

Senator Kim Pate’s litany of the woes of Canadian corrections is a good starting point for taking on the issue of solitary confinement (“‘Repressive’ ‘risk-aversive’ corrections system needs parliamentary oversight,” The Hill Times, Nov. 28, p. 1). What is wrong with solitary (or “segregation” in corrections lingo) has been well-known for decades. It causes harm, mental and physical, even with terms as short as a few days. The over-representation of the mentally ill and Indigenous inmates continues, despite lawsuits and coroners’ inquiries making recommendations for reform. The United Nations calls solitary over 15 days “torture,” and, in the same report, admits that the harm starts with 48 hours.

The federal response

The federal government has been embarrassed into action by scandalous cases of inmates left in solitary for months or even years. It began reducing its use of solitary in 2014, to find, in a review in 2016, that there was no increase in danger to staff. Yet it continues to believe that solitary is needed. In June 2017, it introduced a (flawed) bill to restrict the use of solitary and institute reviews. Bill C-56, as yet undebated, would limit stays initially to 21 days at a time, in 18 months to 15 days—as per the UN’s dictum. But wardens can over-ride the limit, and undoubtedly will.

Bill C-56 allows exceptions so long as the prison head provides “a written rationale” to show that release “would jeopardize the security of the institution, a person or the offender, or interfere in an ongoing investigation.”

But there is no evidence that solitary improves security, but only a widely held supposition. Indeed evidence is now available to the contrary. (Some consideration will have to be given when there is an “ongoing investigation,” say, for a new offence, but this is still no justification for the sensory deprivation aspects of the sentence.)

Bill C-56 would have “independent external reviewers” review files on inmates in for longer than 21 days at a time, or more than 90 days in the same calendar year, or in more than three times in a year.

But why “review” what should not be there in the first place? There is no category of inmate that improves in solitary. Nearly all inmates are released eventually; rehabilitation is the stated goal of all Canadian prisons, including federal penitentiaries. What, actually, will these reviewers review? Self-harm? Suicide attempts? Hallucinations? Can they predict which inmate might commit suicide if kept in? Or for how many more days one can stand before gross mental deterioration? Based on whose reports?

The prison as mental institution

The reality is that Canadian (and American and probably other) prisons are the major housers of the mentally ill. That is, the number of mentally ill persons in prison well exceeds those in psychiatric facilities. An estimated 30 per cent of Canadian inmates suffer from some mental illness.

The United Nations Committee Against Torture in 2012 urged Canada to ban solitary for the mentally ill. Its report also noted the inordinate number of deaths in custody. Suicides disprortionately occur in solitary.

As well, since neurologists warn that the brain continues to develop until age 25, there should be an absolute ban on solitary for those under 25.

Can we do it better?

Some American states have begun to reduce their use of solitary confinement— rampant in the American prison system with its “supermax” prisons. The director of the Colorado Department of Corrections argues, from its data on solitary, stated “the less you use it, the safer your facilities are.” European countries are well ahead of us in limiting solitary (two weeks in Dutch prisons).

Honouring Nelson Mandela

The Mandela Rules, which limit solitary to 15 days, are named after Nelson Mandela, who endured 27 years of prison before his release. He called solitary “the most forbidding aspect of prison life. There is no end and no beginning; there is only one’s mind, which can begin to play tricks.” Mandela was named to the Order of Canada in 1998, and made an honorary citizen in 2001. We could honour him better by abolishing solitary confinement.
Lynn McDonald, CM, PhD, LLD, is a professor emerita, and a former NDP MP from 1982-1988; she is co-founder of the (recently formed) Campaign for the Abolition of Solitary Confinement: http://www.abolishsolitary.ca.

Comment piece by Stewart Phillip in the Globe and Mail

By Stewart Phillip | The Globe and Mail, October 23, 2017
Stewart Phillip is the president of the Union of BC Indian Chiefs.

Mr. Trudeau, stop the residential school to solitary confinement pipeline

Survivors of residential schools carry trauma. But the trauma is also intergenerational: When caregivers of children are hurt by a genocidal system, the trauma is passed on to that child.

Canadian prisons are filled with people who carry the deepest of traumas from a young age. Many of the incarcerated are disproportionately Indigenous people, and about a third of all prisoners who are isolated in segregation cells are Indigenous.

Bobby Lee Worm, for example, is a young Indigenous woman who spent a total of 1,123 days in solitary confinement. There, she attempted to take her own life.

Ms. Worm was a witness against Canada in a recent lawsuit by the BC Civil Liberties Association (BCCLA) and John Howard Society challenging solitary confinement in federal prisons. She is a member of the Daystar First Nation, and her family are residential school survivors. Unfortunately for Bobby Lee, intergenerational trauma meant growing up surrounded by rampant abuse, poverty, and violence. At age 12, she ran away from home and started getting into trouble with the law.

Ms. Worm stated in her testimony: “Since childhood, my sense of being able to control my life has been shattered again and again. This feeling of powerlessness worsened during the years that I spent in segregation. While in segregation … I was literally powerless; every aspect of my every movement was controlled and under scrutiny. I felt like I had been thrown in a hole and left to rot.”

“Administrative segregation” is a vicious code term Canada uses for solitary confinement, when it takes people who are already incarcerated and further contains them in isolated cells. Right now, these decisions are made in the absence of evidence, with no independent oversight and no limits to how long someone can be kept in segregation.
Like Indigenous people, black people are also overrepresented in Canadian prisons and solitary cells. Andre Blair, for example, was once isolated for 363 days “for his own safety” because the guards said he was attacked by other prisoners. Mr. Blair testified that his own voice mattered little when decisions were made to place him in solitary: “When I objected to the allegations against me on the basis that there was no proof, the officer told me that he did not have to prove anything, it was not a court of law, and there was nothing I could do about it.”

In total, Mr. Blair has spent 637 days in solitary confinement.

According to the United Nations, prolonged solitary confinement is a form of torture. Experts agree that it worsens mental illness and increases the risk of suicide.

By keeping Indigenous people in solitary confinement, Canada inflicts new forms of trauma on those already suffering from the traumatic legacy of its own residential schools.

If Canada continues on this path, how is healing possible? How can reconciliation be realized?

Each of the witnesses who testified about their experience of isolation described the serious harms it caused them; for many, it aggravated pre-existing trauma.

“I realized that I was acting out because I had so much pain stored up inside me,” testified Bobby Lee “I understood that in order to move out of solitary … I had to contain all of my emotion. I became paranoid about how much emotion I was showing”

Canada recently responded to criticisms of its segregation practices with Bill C-56, but the proposed fix is meaningless. On paper, the bill would initially limit a person’s stay in solitary confinement to 15 days; however, prison officials could still extend the duration of the stay at their sole discretion. This bill does little more than create more paperwork in order to keep a person isolated in solitary confinement.

Justin Trudeau’s government speaks of reconciliation for past wrongs, but doesn’t seem to recognize its responsibility for the traumatic legacy it actively perpetuates within its own prisons.

If Justin Trudeau’s government truly wants to be responsible for ending the trauma Canada has inflicted and continues to inflict on Indigenous peoples, he must put forward real change, not what’s in C-56.