The Rhythms of the Law (I) -- The Thirty-Day Review
Like other aspects of life in a prison, the law governing segregation
has its own set of rhythms, and the thirty-day and sixty-day reviews are
its basic metre. Within this legal and operational framework, however,
the actual number of days a prisoner spends in segregation slides into
the background. At one of the first thirty-day reviews I observed, thirty-four
prisonersí cases were considered. Three of these prisoners had served
more than 300 days in segregation, five more than 200 days, seven more
than 100 days, and sixteen between 30 and 100 days. Only three prisoners
had served between 20 and 30 days.
The legal model of segregation review envisages a process in which correctional
administrators review each case against legal criteria to determine whether
there are initial grounds to justify segregation and whether those or
other grounds exist to justify continuing it. Part of the latter inquiry
requires the Board to satisfy itself that there are no reasonable alternatives
to segregation. The legislation clearly places the burden upon the correctional
authorities to justify, on a continuing basis, detention in a prison within
a prison. But the model of the law is one thing; the model of operational
reality is another. That reality often reshapes the review so that there
is a presumption, in some cases irrebuttable, that the prisoner will be
retained in segregation.
The element of operational reality which, more than any other, eclipses
the legal reality of an effective monthly review is the prospect of the
prisonerís transfer to the general population of another prison. For many
prisoners in segregation for their own protection, this is the only realistic
avenue for their release. Yet because of their histories, finding another
institution willing to accept them and where they do not have "incompatibles"
is often a difficult process which drags on for months and even years.
I observed that the frustrations experienced by prisoners facing this
situation, coupled with other pressures such as being double-bunked and
having restricted access to open visits and telephone calls, was reflected
in ways ranging from depressive withdrawal to outspoken protests at segregation
review hearings. Dwight Lowe, who in the course of his long imprisonment
has spent many years in segregation, was one of those who consistently
spoke out about the effects "operational reality" had on the lives of
prisoners in segregation. When I first saw Mr. Lowe at his thirty-day
segregation review on May 9, 1994, he had been in segregation for 392
days, dating from his transfer from Mountain Institution.
Unit Manager Shadbolt, who chaired the Segregation Review Board, asked
Mr. Lowe, "What do you have to tell us?" Mr. Lowe replied, "I want to
know whatís happening." He was informed that although Kent was trying
to get him back to Mountain Institution, he was a hard sell. Mr. Lowe
then asked angrily why there were only four open-visit slots for protective
custody prisoners and why only two prisoners could go out at a time. He
said this was causing problems, with some prisoners muscling others for
visits. Psychologist Zender Katz said to Mr. Lowe, "Letís not talk about
unit politics, letís talk about your case." Mr. Lowe got even angrier
and said that the visit situation affected everybodyís case: "When you
push guys to the limit and then you fuck around with the visits youíre
asking for trouble." He went on to point out that this was his fourth
summer in the hole. Mr. Lowe referred to a report he had prepared for
the K unit correctional supervisor, which outlined complaints he had gathered
from prisoners, and went on, "You guys are supposed to promote and foster
family relationships under your correctional mandate. You donít do that
with your visitorsí policy." Ms. Shadbolt said the visit slots were not
going to change, and Mr. Loweís last comment before he left the room was
"Well, if it doesnít change, itís going to lead to someone getting really
Dwight Loweís report, although framed in very specific terms, raised
issues that go to the heart of the different ways prisoners, particularly
prisoners in segregation, experience time and space. These larger dimensions
are eloquently captured in an essay by Dr. Richard Korn, who has interviewed
hundreds of prisoners in solitary confinement, and who gave evidence before
the Federal Court in the McCann case.
These hostages of Time are its profoundest students.
Mankind had to wait for an Einstein to prove that one cannot understand
Time without dealing simultaneously with Space and Motion. Any Greek galley-slave
could have proved to Socrates that ten days chained to an oar in the bilges
lasts longer than ten days in a comfortable room chatting with friends.
Time has a different duration in different places. Space has a different
configuration over different times.
Experienced prisoners can nicely calculate the impact
of different spatial settings on the inner duration of the same unit of
calendar time. How long does a calendar year last in the county jail?
"Twice as long as a year in San Quentin," answers the ex-con from California.
And a year in San Quentin? "Four times as long as a year on the street."
And how long is a week in the "hole"? The respondentís eyes become dream-like.
"A month, two months . . . limbo."
Sensitive prison visitors are typically shocked by
the dimensions of the cell. They are troubled by the restrictions on movement
and activity. While valid, these concerns miss the heart of the problem.
The problem is the impact of Time, Space, and Action on each other. Solitary
travellers in the desert sometimes report that the sky above them feels
too close for comfort. The solitary, inactive prisoner often feels physically
crushed between the walls, the ceiling and the floor. A jeweller working
on the insides of a tiny watch is operating in a larger psychological
space than the man immobilized in his cell. Constricting a manís space
while simultaneously restricting his activities has a fantastically expansive
effect on the crucial third dimension of Time. As space collapses inward
toward the vanishing point, Time is ballooning out toward infinity. (Richard
Korn, "Liberating the Future from the Past? Liberating the Past from the
Future?" [1998; unpublished])
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