Bill 6, Correctional Services Transformation Act, 2018

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

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.

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

College of Family Physicians of Canada statement on solitary confinement

Solitary cell in Prison Jacques-Cartier, Rennes, France

College of Family Physicians of Canada
Prison Health, Community of Practice in Family Medicine (CPFM)
August 7, 2016

Position Statement on Solitary Confinement

Definition and background

Isolation, segregation, separation, cellular, or solitary confinement are some of the terms used to describe a form of confinement where prisoners are separated from the general prison population and held alone in their cell.1 Solitary confinement refers to any confinement of prisoners for 22 hours or more a day without meaningful human contact,2 and with limited or no access to rehabilitative programs.

Solitary confinement may be imposed for administrative or disciplinary purposes. For example, a prisoner who has a violent history or is at risk of injury from other prisoners may be placed in administrative segregation; a prisoner who does not follow the rules and regulations of the institution may be placed in disciplinary segregation.

The United Nations (UN) considers any stay in solitary confinement over 15 days as torture, but the negative consequences of sensory deprivation can be seen as early as 48 hours after segregation.3 These include onset of mental illness, exacerbation of pre-existing mental illness, and the development or worsening of physical symptoms.3 4 5 6 7

Family physicians are health advocates who are called to be socially accountable.8 9 The College of Family Physicians of Canada (CFPC) promotes social justice as the pursuit and/or attainment of equity in society.10 Social justice focuses on addressing the social determinants of health and minimizing their negative effects on individuals’ health.11 12 Accordingly, the CFPC Prison Health Community of Practice in Family Medicine13 advocates for best health outcomes for incarcerated populations in Canada. Therefore, it is the ethical, moral, and professional obligation of health care professionals to advocate for the humane and just treatment of incarcerated persons and to make specific recommendations regarding solitary confinement.14 15 16 17

Recommendations

  1. Abolish solitary confinement for administrative segregation. Non-segregation options must be created within correctional facilities, with adequate resources and correctional staff.18 19 20
  2. Abolish solitary confinement for youth. Due to the more fragile brains, the negative effects of solitary confinement will have a greater impact on youth.21
  3. Solitary confinement for medical reasons (including cardiovascular disease, respiratory disease, cancer, infectious disease, liver disease, and/or diabetes) is inappropriate. These persons require care that will address the medical health needs rather than exacerbate them in solitary confinement.
  4. Solitary confinement for mental illness (including those with post-traumatic stress disorder) is inappropriate. These persons require care in a specialized setting that will address the mental health needs rather than exacerbate them in solitary confinement.
  5. Solitary confinement for discipline is not recommended. The evidence shows that it is not effective and that better options exist.16
  6. Until solitary confinement is abolished, correctional facilities should develop and implement independent review procedures of all those in solitary confinement, to address both legality of the confinement and also to ensure the health (mental and medical) of persons in solitary confinement.
  7. Until solitary confinement is abolished, correctional facilities should assure that the health care needs of persons in segregation are met. Persons in solitary confinement should be assessed in person by medical and nursing staff at least daily, in addition to regular assessment by correctional staff. If the person requires health care, then the patient should be seen in a health care setting that maintains confidentiality and dignity.22

References

1 Shalev S. A Sourcebook on Solitary Confinement. London, UK: Mannheim Centre for Criminology, London School of Economics; 2008.

2 General Assembly resolution 70/175, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), A/RES/70/175 (8 January 2016), available from http://undocs.org/A/RES/70/175. Accessed 2017 Jan.

3 General Assembly resolution 66/150, Torture and other cruel, inhuman or degrading treatment or punishment, A/RES/66/150 (19 December 2011), available from http://undocs.org/A/RES/66/150. Accessed 2017 January.

4 Shalev S. Solitary Confinement and Supermax Prisons: A Human Rights and Ethical Analysis. J Forensic Psychol Pract 2011;2-3(11):151-183. doi: 10.1080/15228932.2011.537582

5 Haney C. Mental Health Issues in Long-Term Solitary and “Supermax” Confinement. Crime & Delinquency 2003;49(1):124-156.

6 Kaba F, Lewis A, Glowa-Kollisch S, Hadler J, Lee D, Alper H, et al. Solitary confinement and risk of self-harm among jail inmates. Am J Public Health 2014;104(3):442-7. doi: 10.2105/AJPH.2013.301742

7 Kupers T. What To Do With the Survivors? Coping With the Long-Term Effects of Isolated Confinement. Crim Justice Behav 2008;35(8):1005-1016.

8 Tannenbaum D, Konkin J, Parsons E, Saucier D, Shaw L, Walsh A, et al. CanMEDS – Family Medicine: Working Group on Curriculum Review October 2009. Mississauga, ON: The College of Family Physicians of Canada; 2009.

9 Buchman S, Woollard R, Meili R, Goel R. Practising social accountability: From theory to action. Can Fam Physician 2016;62(1):15-18.

10 The College of Family Physicians of Canada. The CFPC Social Justice Lens Worksheet. Mississauga, ON: The College of Family Physicians of Canada; 2015.

11 Wilkinson R, Marmot M, eds. Determinants of Health: The Solid Facts, 2nd ed. Copenhagen, Denmark: World Health Organization; 2008.

12 Canadian Nurses Association. Social Justice … a means to an end, an end in itself. Ottawa, ON: Canadian Nurses Association; 2010.

13 The College of Family Physicians of Canada. Prison Health Program Committee. Available from: www.cfpc.ca/Prison_Health_Who_We_Are. Accessed: 2017 January.

14 Appelbaum KL. American Psychiatry Should Join the Call to Abolish Solitary Confinement. J Am Acad Psychiatry Law 2015;43(4):406-15.

15 Webster P. Controls over solitary confinement needed. CMAJ 2015;187(1):E3-E4.

16 Ahalt C, Williams B. Reforming Solitary-Confinement Policy – Heeding a Presidential Call to Action. N Engl J Med 2016;374(18):1704-1706.

17 American Public Health Association policy statement, Solitary Confinement as a Public Health Issue, Policy number 201310 (5 November 2013).

18 National Association of State Mental Health Program Directors (NASMHPD). Six Core Strategies for Reducing Seclusion and Restraint Use (c). Available from: www.nasmhpd.org/sites/default/files/Consolidated%20Six%20Core%20Strategies%20Document.pdf. Accessed 2017 January.

19 Colton D, Xiong H. Reducing seclusion and restraint: questionnaire for organizational assessment. J Psychiatr Pract 2010;16(5):358-62. doi: 10.1097/01.pra.0000388632.74899.86.

20 Colton D. Leadership’s and program’s role in organizational and cultural change to reduce seclusions and restraints. In: For Our Own Safety: Examining the Safety of High-Risk Interventions for Children and Young People. Nunno M, Bullard L, Day D, eds. Washington, D.C.: Child Welfare League of America; 2008, p. 143-166.

21 Burke AS. Under construction: Brain formation, culpability, and the criminal justice system. Int J Law Psychiatry 2011;34(6):381-5. doi: 10.1016/j.ijlp.2011.10.001

22 Enggist S, Møller L, Galea G, Udesen C, eds. Prisons and Health. Copenhagen, Denmark: World Health Organization, 2014.

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.

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.

Why We Ended Long-Term Solitary Confinement in Colorado

By Rick Raemisch in The New York Times, October 12, 2017

COLORADO SPRINGS — For years, the Colorado corrections system had a ready answer for inmates it wanted to punish. For almost any reason — smuggling drugs, talking back to a corrections officer, assaulting another prisoner — it would send an inmate to a cell the size of a parking spot. The inmate would stay there, alone, at least 22 hours a day, for two and a half years on average, but sometimes for decades. This is called administrative segregation, and shortly after I became Colorado’s head of corrections in 2013, I began to ask why we were doing it.

Can you imagine spending years without having regular social interactions or without full access to basic human activities like showering and exercising? When did it become O.K. to lock up someone who is severely mentally ill and let the demons chase him around in the cell? What is wrong with us? I asked.

Then, in 2015 I assisted the State Department with other United Nations countries in modernizing international standards for the treatment of prisoners, now known as the Nelson Mandela Rules. During the debates about the wording of the new standards, it was decided that keeping someone for more than 15 days in solitary was torture.

After listening and being involved in those discussions, I agreed. There now is enough data to convince me that long-term isolation manufactures and aggravates mental illness. It has not solved any problems; at best it has maintained them.

That’s why, in September, Colorado ended the practice.

Continue reading at
https://www.nytimes.com/2017/10/12/opinion/solitary-confinement-colorado-prison.html

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

Hon Marie-France Lalonde, MPP
Minister of Community Safety and Correctional Services (Ontario)
October 10, 2017

Dear Ms Lalonde

Thank you for your response of September 13, 2017 to our letter advocating the full-scale abolition of solitary confinement in the prison system. We were pleased to see your bold, long-term, vision, both on solitary and imprisonment itself, but wish to concentrate on the immediate goal: the abolition of solitary confinement.

We were puzzled by your statement about shifting health care services to the Ministry of Health and Long-term Care, apparently to be “explored.” Clearly it would be important to deal with this, if to be done, to be done without delay. It is not clear to us how the announcement of December 2016 of adding 239 health care staff “related to segregation and mental health” fits with the transfer of inmate health care itself to the Ministry of Health.

Maintaining the security of both staff and inmates of course is an important concern. We know of no evidence, however, that shows that segregation enhances security, particularly of staff. There has been a marked decline in the use of solitary in the federal system, from 474 inmates in 2015 to 298 inmates in 2016. Yet CSC reports, from data provided by wardens, that over 90% found no increase in incidents from the reduced use of segregation, or the use of alternatives for the mentally ill. The report concluded, in the grudging language of CSC, that “generally, the reduced use of administrative segregation has not had a negative impact on the safety and security of staff and inmates in the institutions.”

We urge you to do better than the caps of fifteen days/sixty days total recommended by Howard Sapers. Both limits would mean an improvement on the current system. We could expect fewer inmate suicides, attempts and incidents of self-harm, fewer deteriorating in mental health, and fewer previously healthy inmates developing new conditions of mental illness. All these harms, moreover, are known to occur with even very short stays in solitary. Nor is there any known benefit from the use of solitary.

We agree that some measures of temporary isolation will continue to be necessary, in cases of assault, and for the protection of some inmates (for example of former police officers). Yet these should be short, not entail sensory deprivation, 24-hour lights on and restriction of human contact to a slot in the door.

We say the time has come to end the use of solitary confinement. It was instituted with the naive hope that inmates would, separate from criminal elements in the general prison population, use their time in a separate cell to reflect on their transgressions and reform. It did not happen, and why it did not has been known for more than a century. Administrative segregation became a convenient solution for wardens for trouble makers rather than dangerous offenders. Inmates who commit new crimes can be dealt with in the regular court system.

We share the view that incarceration, as deprivation of liberty, is a legitimate punishment for crime. The use of solitary confinement in addition is not justified. That it has been used disproportionately for the mentally ill, indigenous persons, racial minorities and youth adds to the reasons for its abolition.

We would like to discuss these matters with you. If you would be willing to meet with us (several members of our organization), please have an assistant contact us (email given below).

Yours sincerely

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

To Ralph Goodale and Members of Parliament

Solitary confinement: harm reduction is better than nothing, but not good enough

We are pleased to see the announcement of the Hon Ralph Goodale, Minister of Public Safety, that new legislation (Bill C-56) will be introduced this fall to limit, albeit with serious exceptions, the use of solitary confinement in federal prisons. The proposed limit of 21 days (later to be reduced to 15 days) will prevent some suicides and some mental deterioration, but why not do the job better?

The proposal falls far short of UN recommendations, which include a 60-day limit in solitary in any year, as well as the 15-days per stay. Ignored is the warning that scientific studies “have established that some lasting mental damage is caused after a few days of social isolation” (Juan E. Mendez. UN Rapporteur, 18 October 2011).

Bill C-56, as proposed, will still leave an enormous amount of discretion in the hands of wardens and the Commissioner of Corrections. A former director of Corrections Canada, Mary Campbell, called the bill “very thin,” the minimum to say “they did something.”

Mr Goodale is quoted as saying 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 purpose of our prison system, at every level, is rehabilitation and reintegration into society, as Mr Goodale himself acknowledges. His proposals fall short of the reforms accepted by the Ontario government, based on the report of Howard Sapers, former federal Correctional Investigator. These, too, fall short of the reform we seek, the virtual abolition of solitary (only very brief use, in dangerous situations, while other plans are being made).

We urge the minister to look at the progress made in other jurisdictions to reduce, radically, the use of solitary, and eliminate it completely for some categories of prisoner.

Solitary confinement is the last barbaric element of our prison system. Like slavery and child labour — acceptable practices in the past — it should go. No inmate is improved in solitary, no prison made safer by its use.

Yours sincerely
[ 12 members of the Campaign for the Abolition of Solitary Confinement ]