SECTOR 4:
CHAPTER 2
ADMINISTRATIVE SEGREGATION AT MATSQUI AND KENT, 1993-96 -- THE PERSISTENCE OF CUSTOMARY LAW

In many societies, customary law transmitted through an oral tradition provides the basis upon which social, economic, and political relationships are ordered and maintained. Efforts to change that basis through the introduction of written legal codes often meet with resistance and result in the development of parallel legal orders with an uneasy and distant relationship. "Uneasy and distant" is also an apt characterization of the relationship between the formal legal and administrative framework of administrative segregation under the CCRA and prison customary law and practice. From a reading of the formal statutory framework, there is the clear expectation of a process which has a uniform and consistent structure, with prison administrators making decisions by applying the same legislative criteria from institution to institution, region to region. Yet this legitimate expectation must compete with the reality that each prison is a distinct society with a unique character, rhythm, and way of ordering relationships between the keepers and the kept. For this reason, customary law and practice play a central part in each institution, particularly in those areas where the formal legal regime accords correctional administrators the greatest discretion. It is precisely because the formal legal criteria for administrative segregation are so broad that customary law and practice are the most significant force in determining why, when, and how prisoners are placed in segregation.

Page 1 of 1