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 prisoners’ 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 prisoner’s 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 what’s 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, "Let’s not talk about unit politics, let’s talk about your case." Mr. Lowe got even angrier and said that the visit situation affected everybody’s case: "When you push guys to the limit and then you fuck around with the visits you’re 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 don’t do that with your visitors’ policy." Ms. Shadbolt said the visit slots were not going to change, and Mr. Lowe’s last comment before he left the room was "Well, if it doesn’t change, it’s going to lead to someone getting really hurt."

Dwight Lowe’s 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 respondent’s 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 man’s 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])

Page 1 of 2