It was not surprising that the majority of the prisoners in this instance viewed their five-day reviews with scepticism, even contempt. The requirements of the law were invoked solely to ensure that prisoners had their three days’ notice of the review and their right to appear. But that right meant nothing in the context of a decision already made. These are men already deeply suspicious of and resistant to authority. For them to be told, in the name of fairness and the law, that they have a right to a hearing, and then to be told a decision has been made in advance, is worse than giving them no hearing at all -- and it does greater damage to the legitimacy of correctional authority.

A year later, I shared with Mike Csoka my perception that he saw the legal requirements of the CCRA regarding segregation as a set of procedural hurdles to be cleared before he got down to the real business at hand. He replied, with his usual candour.

My reputation and my word mean more to me than that I fill out all these boxes. Sometimes I’ll give that air that I’ve got to get all this out of the way. Do I disagree with the law? Do I think it’s a waste of time? No, because some guys won’t do it, some guys will screw an inmate around. I won’t. I live by my reputation. So, you call them hurdles, I wouldn’t call them hurdles; I call them necessary steps I have to go through, that I will go through because it’s the law. But sometimes I feel that there’s just too many of them. (Interview with Mike Csoka, Kent Institution, July 1998)

The role of an independent adjudicator is not to replicate the hard-won knowledge and experience of correctional administrators like Mike Csoka. It is to examine the legal criteria for segregation within a procedural framework which allows the institution to present its case and the prisoner to answer it. Given the broad criteria in the CCRA (sometimes overly broad, as I have commented elsewhere), the institution in this case would have had little difficulty in persuading an independent adjudicator of the lawful justification for segregating the primary participants in the Grenier homicide and the A unit smash-up. The institutional case would involve a review of the videotape and other evidence implicating particular prisoners and a justification of why anything short of segregation would prejudice the security of the institution, compromise the safety of other prisoners, or jeopardize the ongoing investigation. If the disclosure of any evidence (for example, information from prison informants) posed a danger to the safety of prisoners, the institution could make out a case for nondisclosure to the independent adjudicator. As long as the institution did its job in presenting reasonable grounds for maintaining segregation, it is difficult to imagine that an independent adjudicator would not weigh these points heavily in maintaining segregation, unless a prisoner presented a credible argument that he was mistakenly implicated or that his presence in the population would not prejudice security or safety, or compromise the investigation. An independent adjudicator would not turn a blind eye to the realities of a maximum-security prison in the aftermath of a homicide precipitated by a power struggle between rival groups. But his or her determination, measured against the criteria of the law, would be made free from correctional judgements formed in the adrenaline rush of crisis and emergency and with due regard to the submissions of prisoners.

Other important aspects of the independent adjudicator’s role are illustrated in these cases. Several prisoners complained during their hearings that their rights and privileges were being denied in administrative segregation. For example, they were kept in the same clothes or coveralls for five days, were denied access to daily showers, and were having difficulty in making legal calls. Under my Model Segregation Code, the independent adjudicator would ensure full compliance with the law regarding the conditions of segregation and report serious violations to both the warden and the commissioner.

The presence of an independent adjudicator would not undermine or straitjacket the authority of wardens and staff to manage their institutions decisively at times of crisis, maintaining a precarious balance of control and security. Independent adjudication is designed to safeguard another kind of precarious balance, one likely to be upset at times of crisis and emergency: the balance between correctional discretion involving the most intrusive form of imprisonment -- administrative segregation -- and the rights of prisoners to the full protection of the law.

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