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Independent Adjudication -- An Ideal or an Aberration?

Thus far, I have suggested that much of the dissatisfaction expressed by staff and prisoners about the disciplinary process can be traced to identifiable causes which can be addressed by making incremental rather than radical changes. Improving the staff’s understanding of the process, making it more effective through better training of an institutional representative, ensuring greater legal representation of prisoners, and improving the competence and credibility of Independent Chairpersons through a set of prescribed qualifications and remuneration commensurate with the importance of the position should increase both staff and prisoner confidence in the legitimacy of the process.

There is, however, another quite different line of explanation for the dissatisfaction of prison administrators and staff. This line of explanation has the following elements. First, the decisions made by the Independent Chairperson are the only prison decisions affecting the rights and liberties of prisoners made by someone not a full-time employee of the CSC. In all other significant areas, including administrative segregation, transfers and visits, decisions are made by prison administrators. Although the evolution of administrative law, the advent of the Charter, the proclamation of the Mission Statement, and the passage of the CCRA have acknowledged and entrenched the duty to act fairly and the principles of fundamental justice, responsibility for the implementation of these principles, except in the area of disciplinary hearings, remains in the hands of prison administrators. Administrative practice in segregation and transfer decisions, areas over which they have exclusive control, is the standard prison administrators and staff use to arrive at the proper balance between maintaining security in the institution and being fair to prisoners. This practice, with its heavy reliance upon confidential information and informal decision-making, is in stark contrast to the process under which prison disciplinary hearings are held and the basis upon which adjudication of guilt or innocence is made by the Independent Chairperson. By the measure of current administrative practice in the areas of administrative segregation, transfers and visits, the disciplinary process before the Independent Chairperson appears as aberrant. In this view, the features of that aberration are that the process is overly concerned with the rights of the prisoner -- the presumption of innocence, the need for proof beyond reasonable doubt -- and not sufficiently concerned with the rights of the staff who give evidence or the needs of the institution to maintain security and discipline.

In my 1974 study "Justice behind the Walls," one of the arguments I advanced for the introduction of Independent Chairpersons was that they could provide a role model for due process values in prison decision-making. In both that study and subsequent ones, I also argued that the case for independent decision-making was not limited to the formal disciplinary process but should extend to the other critical processes that affected the rights and liberties of prisoners. That extension has not happened. Although decisions in these other areas now take place within the legal and administrative framework of the duty to act fairly, they reflect a system in which the balance lies with the institutional interest of maintaining control and security. Fairness is a value subsidiary to operational reality.

This second line of explanation may not only better explain the dissatisfaction of prison administrators and staff with the formal disciplinary process; it may also explain why many prisoners express the opinion that the formal disciplinary process is still not fair. It could be argued that this belief stems from insufficient information about the process. Given my findings that the Independent Chairpersons at Kent and Matsqui do treat prisoners fairly and that findings of not guilty are a common feature of the system, providing better feedback to prisoners regarding the outcome of cases might seem a reasonable strategy to change their perceptions. However, the formal disciplinary process is but one area of prison decision-making, and in many cases decisions made by non-independent prison administrators regarding segregation and transfer may overshadow, even supersede, the formal disciplinary outcome. Consider the numerous cases I have described here in which prisoners awaiting a hearing on disciplinary offences were confined in administrative segregation for longer periods than those to which they could be sentenced if found guilty. In these cases, regardless of the outcome of the process, the administrative practice of segregation constituted the effective punishment. Consider also the cases in which not only were prisoners transferred to higher security on the basis of charges they were subsequently acquitted of, but those acquittals did not result in reversal of the transfers. It is therefore no surprise that prisoners view the disciplinary process as part of a seamless administrative web which they judge to be unfair.

In Sectors 4 and 5 of this book, where I focus on administrative segregation and the involuntary transfer process, I will return to the nature of the relationship between the "administrative" decisions and formal discipline and revisit the role of independent adjudication in bringing justice into the prison.

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