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.

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.

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.

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.