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. Aís
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 "Iím 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. Dickís
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 Ė- 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 Katzís
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. Bís
complaint against Mr. A and the other allegations of Mr. Aís 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. Bís written statement which he thought was credible and reviewing
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. Sexsmithís response was that he still harboured reservations
about the credibility of Ms. Bís story. Mr. Dickís rejoinder was that
in his view Ms. Bís 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
everyoneís views. There was a consensus in favour of Ms. Bís release and
Mr. Sexsmith bowed to that consensus and announced the decision; Ms. Bís
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. Sexsmithís
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. Sexsmithís 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 Sexsmithís 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 doesnít bother me at
all. It doesnít hurt me being in segregation. The Ďsegí unit here is nothing
compared to lots of prisons Iíve done time in." Mr. Sexsmithís response
to this was, "Well, it does me. You may not think itís doing you any harm
but based on my experience, long term segregation will damage you eventually
and you donít even realize it."
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