The Rhythms of the Law (II) -- The Sixty-Day Review

At the sixty-day review of a prisoner in segregation, the CCR Regulations require that the case be reviewed by Regional Headquarters to determine whether the segregation of the prisoner continues to be justified. In light of this, it might be expected that the regional representative who attended the sixty-day Segregation Review Board hearings at Kent would play a significant role, if not a leading one. In practice, though, the regional representative resembled the invisible man (or woman). At the May 1994 sixty-day review, the first one I attended, the regional representative did not ask a single question or make any comment. The hearing showed no evidence of independent review or evaluation, and this remained the case throughout my observation period. Though the regional representative changed from time to time, his or her participation was limited to providing information on the progress of inter-regional transfers. This was not surprising given that the regional representative, usually the transfer co-ordinator for the region, occupied a place in the organizational hierarchy below the unit manager and deputy warden. Within such a context, to challenge conclusions or to suggest that all reasonable alternatives had not been explored would be not only difficult but ill-advised from a career perspective.

In addition to the presence of a regional representative, the operational reality at Kent at least at some 60 day reviews I attended, was that the review was "beefed up" by the presence of deputy warden. While in no case did the presence or participation of the regional representative ever make a difference to the outcome of a review, there were several cases where the "take charge" style of the deputy warden brought a resolution which would otherwise have been absent, avoiding the drift from review to review, with the prisoner remaining in segregation.

Mr. A had been placed in segregation based on allegations that he had sexually assaulted other younger prisoners. At his 30-day review, he had been told that he was being considered for transfer to the Special Handling Unit. At his 60-day review, Unit Manager Shadbolt advised him that the investigation was now "complete but inconclusive" and it had been determined that he could be managed in a maximum-security institution. She also advised him that the Inmate Committee from the protective custody units had made some overtures that he could be safely released back into the P.C. population. She was in a process of organizing some negotiations with the Inmate Committee and one of his alleged victims, Ms. B, a transsexual prisoner who was also in segregation, to be sure that if either or both of the prisoners were released to the population there would be no repercussions. Deputy Warden Jessie Sexsmith asked Mr. A whether there would be any ongoing trouble between him and Ms. B. Mr. A said that he was not guilty of any assault, but in any event he would have no problems with Ms. B in the population. Ms. Shadbolt said that nothing could be done until the negotiations which she had outlined took place. Mr. A pressed her as to how long that might take and she said that she would try to do it within the next week. After Mr. A had left the room Mr. Sexsmith said that he felt that a decision should be made about this case that day because it had dragged on long enough. He got on the phone and spoke to both Unit Manager Cawsey and the IPSO, Mr. Dick, and asked them to come down to discuss this case. While Mr. Sexsmith was phoning around, psychologist Zender Katz asked Ms. Shadbolt what she thought negotiations could resolve, if Mr. A maintained that he did not sexually assault Ms. B and she insisted that he did. Mr. Katz argued that if the assault had taken place, requiring Ms. B go back to live in the same unit as Mr. A was like requiring a rape victim on the street to go back and live in the same housing development as the person who raped her. CMO Owen concurred that "we would never do that on the street and how could it be justifiable to do it in here just because Ms. B is a prisoner. She was the victim and should not be forced to live with her assailant."

Ms. B was then seen by the Board. She had been transferred to Kent from RPC on March 2 after she was caught with some hashish and money. She was charged and received a sentence of 10 days punitive and had been in segregation since then. Ms. B had filed a written statement to the effect that she had been raped by Mr. A at Kent before her transfer to RPC. It was as a result of this complaint, coupled with a fight between Mr. A and another prisoner over his alleged predatory activities, that had led to Mr. A’s segregation and the subsequent investigation. Ms. B has been recommended for transfer to Mission but no decision had yet been made by that institution. Mr. Sexsmith asked Ms. B whether she felt that her problem with Mr. A could be negotiated. She replied flatly that it could not. "There is no way I would talk to him after what he has done to me and there was nothing to negotiate about. I will resolve it in my own way on a personal level." When Ms. Shadbolt asked if this meant that he would use violence, Ms. B replied with a shrug "I’m doing a life sentence, he is only doing six years." She was informed that the transfer to Mission was being supported by Kent and was asked a second time if she was released into the population until then, would there be any further problems with Mr. A. She responded that there probably would, because she was not about to forget what he had done. Ms. B was told that a decision would be made about whether she or Mr. A would be released to the population and she then left the room.

Mr. Sexsmith then took charge of the meeting and said that this issue was going to be resolved right then and there. In his view, it was quite clear that both prisoners could not be released to the population; the question was which one of the two should be released. Mr. Owen said that in his view Ms. B should be released as she was the victim. Mr. Dick’s response was that if Ms. B was saying that if she were released to the population she would do what ever was necessary to deal with Mr. A, then the question answered itself –- Ms. B should stay and Mr. A should be released. Mr. Owen responded, "But you would be releasing the victimizer." Mr. Sexsmith said that he had read all the reports on this case and it was not clear to him that the issue of Ms. B being a victim was so clearly established. It seemed to him from the reports that Ms. B had been selling herself for a bale of tobacco and this raised the question in his mind of why would Mr. A have to rape her if she was so easily bought. Mr Katz’s response was that on the street prostitutes have the right to say "no," why should it be different in prison? The point was made also that Ms. B had waited for several months after this assault to come forward with her account. Mr. Katz responded that again this was not all that uncommon on the street and Ms. B should not be penalized because of that.

Mr. Dick said that when he did the investigation arising from Ms. B’s complaint against Mr. A and the other allegations of Mr. A’s predatory behaviour, he talked to a number of prisoners who were alleged victims and they said that they had consented. The investigation also revealed that Mr. A was lending tobacco at an interest rate of two bales for one, and when younger prisoners could not pay him back he in effect turned them into sex slaves, so there was a question here about the reality of their consent. In the end he found the investigation inconclusive in that there was not enough hard evidence to pin anything on Mr. A, but there was a lot of suspicion. Mr. Dick also went on to say that in his opinion he felt that Ms. B had been assaulted by Mr. A; this was based upon reading Ms. B’s written statement which he thought was credible and reviewing A’s response.

Mr. Sexsmith summarised that in his view the bottom line was that if Mr. A said that he would not harm Ms. B and Ms. B said that she will harm Mr. A, then Mr. A should go out to the population. Mr. Katz suggested these were not fair questions because if you assumed that the rape had taken place, of course Mr. A would say that he would not harm Ms. B; similarly, Ms. B, having been raped, would naturally harbour some bad feelings towards her attacker. Mr. Sexsmith’s response was that he still harboured reservations about the credibility of Ms. B’s story. Mr. Dick’s rejoinder was that in his view Ms. B’s account was credible and that if he had to make a choice, he would favour the victim. This was a reversal of his original stand which was that Mr. A should be released. Mr. Sexsmith declared that this matter should be put to a vote and he went round the room asking everyone’s views. There was a consensus in favour of Ms. B’s release and Mr. Sexsmith bowed to that consensus and announced the decision; Ms. B’s was to go back to population as soon as there was bed space available. A would remain segregated.

What these cases revealed very clearly was that absent Mr. Sexsmith’s questioning of why was it necessary to keep either or both of these prisoners in segregation, and pushing the various participants to come up with reasons and the factual basis for them, including the reliability of the information which had been received, these prisoners would have remained segregated for some time yet. Ms. Shadbolt and Mr. Cawsey, as the persons involved in the day-to-day decision making, had already exhausted their own examination and any new insight flowed from Mr. Sexsmith’s persistent questioning of the case for segregation. This, of course, is what a review ought to be in every case; yet this was the first and one of the few examples I saw, in all the segregation reviews I observed, of a real examination of the factual justification for segregation.

There was one other case at the 60-day review in May 1994 which reflected Deputy Warden Sexsmith’s long experience as a correctional officer and prison administrator. Mr. Zamora, during the course of his review, had indicated that he was prepared to stay in segregation to avoid having to "step out," if he was released back to population. Mr. Sexsmith questioned the implications of this. Mr. Zamora replied, "It doesn’t bother me at all. It doesn’t hurt me being in segregation. The ‘seg’ unit here is nothing compared to lots of prisons I’ve done time in." Mr. Sexsmith’s response to this was, "Well, it does me. You may not think it’s doing you any harm but based on my experience, long term segregation will damage you eventually and you don’t even realize it."

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