Locating the decision-making power in an independent adjudicator would
also provide a trigger absent under the existing procedures. Segregation
Review Board discussions were often unfocussed and shapeless, particularly
in cases of long-term segregation, where the very existence of a lengthy
segregation almost fatalistically provided the evidence of its future
inevitability. In many cases the decision to maintain segregation emerged
not as a decision but as a fait accompli. In other cases, prisoners were
left with vague promises that the institution would "try to do something"
-- to overcome the resistance of other institutions to accepting a prisoner;
to ensure that a progress summary required for a transfer application
was completed before the next review; to see that the institutional preventive
security officer visited the prisoner to try to resolve problems of incompatibility.
In these and myriad other situations, the prisoner was, in fact, "sloughed
off." Under the Model Segregation Code, the independent adjudicator at
Segregation Review Board hearings would have both the legal authority
and the obligation to "do something."
The second feature of the Model Segregation Code that would have made
a difference to Mr. Oag’s case is the ninety-day limitation I proposed
on the overall duration of segregation. Operationally, this would have
meant that Kent Institution had no more than ninety days from the time
Mr. Oag was first segregated to find an alternative placement for him.
This would have created some urgency in presenting his case for transfer
to another institution, and it would have put the decision about transferring
Mr. Oag into a framework in which the "least restrictive alternative"
was recognized as a legal imperative, not seen as an administrative option.
In the absence of both time constraints on the duration of administrative
segregation and the other protections contained in the Model Segregation
Code, Donnie Oag finally left Kent Institution on statutory release on
February 8, 1997, straight from his cell in segregation, having spent
the last 1,000 days of his sentence in a "prison within a prison."
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