In March 2001, I returned to Kent to observe a series of five-day reviews
held following an assault on a staff member by a prisoner. The prisoner
was overpowered and immediately taken to segregation. Subsequently, five
other prisoners were segregated based on allegations that they had been
present at a Lifersí group meeting in B unit immediately prior to the
assault and had conspired to have the assault carried out. Each of the
prisoners received a segregation notice that stated:
The date and timing of this meeting is significant
as shortly afterwards an officer was attacked with a wooden paddle similar,
if not the same one, given to the attacker during the meeting. The inmates
who attended this meeting are believed to have conspired and pre-planned
the violent physical assault upon a staff member in the evening and directly
participated by arranging for the aggressor to have possession of the
wooden paddle which was used as a weapon. (Segregation Notice, Kent Institution,
March 22, 2001)
The five-day reviews for the segregated prisoners were scheduled for
Thursday, March 28. When I arrived at Kent that day, I was told that three
of the prisoners had been transferred that morning on an emergency basis
to other maximum-security institutions across the country. As I observed
the reviews of the two remaining prisoners and five others, a clear pattern
emerged as a basis upon which to measure the changes in the segregation
review process at Kent since 1998.
The reviews were chaired by Irv Hammond, the unit manager for Segregation.
Also present was Darryl Broadbank, the programming co-ordinator for segregation
who, beginning in 1999, initiated cognitive living skills and anger management
modules for segregated prisoners. This had been one of the recommendations
of the Task Force on Segregation. Other staff members at the reviews were
the institutional parole officers (IPOs) specifically assigned to the
segregation unit and the IPOs assigned to individual prisoners. The only
IPO who had been at Kent during the Task Force on Segregationís work was
Barry Owen, one of the two veteran case management officers.
None of the guidelines set out in the Draft Administrative Segregation
Handbook was observed at the five-day reviews. Procedural safeguards were
not reviewed to ensure that prisoners had received both three daysí notice
of the hearing and written information; there was no tape recording of
the hearing; and the chairperson did not describe the circumstances leading
to each prisonerís segregation. Thus, even what Mike Csoka had described
as "clearing legal stuff out of the way" was omitted, on the assumption
that these procedural requirements had been observed.
Unit Manager Hammond began each hearing by introducing himself and asking
whether the prisoner knew the other staff members in the room. He introduced
me as an observer, then asked the prisonerís IPO to summarize why the
prisoner had been placed in segregation. In Mr. Ellisí case, when there
was some hesitation as to who would present this summary, the prisoner
himself jumped in, taking the initiative with the comment, "Do you want
me to run this show? The reason Iím down here is that they say I threatened
to slit a staff memberís throat." Mr. Ellis then read from the report
he had been given as part of the written sharing of information. This
alleged that Officer Jones had heard a prisoner from a cell in the lower
range of B unit call out, "Who is that on the camera? Is that Jones? Iím
going to slit your fucking throat." Officer Jones asked Officer Head which
prisoner had called out, and he identified Mr. Ellis. Mr. Ellis acknowledged
that he had mouthed off at Officer Jones in the past but said they had
resolved their differences and he had not made the threats attributed
to him on this occasion. Mr. Ellis challenged the reliability of this
identification by pointing out that at the time of the incident he had
moved to the upper range of B unit, and Officer Jones had identified the
threatening voice as coming from the lower range. Furthermore, from Mr.
Ellisí cell on the upper range, it was physically impossible to see who
was shown on the camera located on the lower range. Mr. Ellis asked that
he be released from segregation since he had already spent six days in
the hole without justification. Mr. Hammond said he would follow up Mr.
Ellisí version of events with the IPSO and convene another hearing once
that investigation was complete, so Mr. Ellis would not have to wait for
his thirty-day review. Mr. Ellis challenged the need for further investigation;
there could be no argument about where he lived, and clearly Officer Head
had made a mistake. Mr. Hammond said it was his job to review the reports
and further investigate the matter. Mr. Ellis pointedly retorted, "Why
wasnít this done during the last six days? Why didnít the IPSO come down
and hear my side of the story? Iíve shared it with other staff."
Mr. Ellisí comments recalled those of Glen Rosenthal at his five-day
review following the Grenier killing in July 1997. They exposed the continuing
failure of the five-day review process to measure up to the legal requirements
of a "review," at which specific allegations are tested in the crucible
of evidence and judgements are rendered on the basis of that evidence.
While in some cases judgements may not be possible at the five-day review,
since the facts are still being investigated, in Mr. Ellisí case segregation
was based on a specific allegation to which he had a very specific answer.
His defence could easily have been investigated before the five-day review.
The same flaw was exposed in the review of Mr. Gibson. His segregation
notice said Mr. Gibson was believed to be part of the conspiracy to assault
a staff member. The observation reports included in the sharing of information
alleged he had been present at the meeting in the Lifersí office in B
unit. Mr. Gibson acknowledged that he was president of the Lifersí group
and that he had been in B unit prior to the assault on official business,
gathering signatures for some proposals that were going to the warden.
However, he had not attended any meeting in the Lifersí office. He acknowledged
that he had been in the pool room immediately beside the Lifersí office
and suggested that his mistaken identification may have stemmed from that.
(The staff office, the Lifersí office, and the pool room are separated
by walls with large glass windows which enable staff to see into both
the other rooms.) Mr. Gibson also pointed out that the observation report
he received was dated before the meeting
in the Lifersí office was supposed to have taken place, suggesting that
the officer may have been confused on a number of matters. Mr. Gibsonís
third point was that after leaving B unit he had returned to his own unit
and made a phone call to a friend. The institution could confirm from
his PIN number that at the time the meeting in B unit supposedly took
place, he was on the phone in another part of the prison. Mr. Gibson said
that Mr. Laverty, the prisoner who had committed the assault, was his
partner and best friend. However, Mr. Laverty had never spoken to him
about planning to assault an officer, presumably because Mr. Gibson would
have tried to dissuade him from this course of action.
Mr. Hammond told Mr. Gibson he would investigate the matter further
with the IPSO. As with Mr. Ellis, the IPSO had not yet spoken to Mr. Gibson,
even though there were significant elements of his defence, in particular
the phone call, which could have been verified prior to the five-day review.
The other prisoner who remained in segregation as part of the assault
investigation was Mr. Miller. Mr. Miller acknowledged he had been in the
Lifersí office in B unit but stated this was solely for the purpose of
giving a tattoo and had nothing to do with the planning of an assault.
He was told by Mr. Hammond that he would remain in segregation pending
the completion of the investigation. Mr. Miller had not yet seen anyone
from the IPSOís office, nor had he been asked by any other staff member
to account for his activities in the unit.
In addition to the five-day reviews, I also observed several thirty-day
reviews. Mr. Colluneyís case illustrated how institutional politics can
undermine compliance with the law, again reinforcing the need for independent
adjudication. Mr. Colluney had been placed in segregation at Mission Institution
following the interception of drugs his visitor had tried to smuggle in.
After spending two months in segregation, he was involuntarily transferred
to Kent, where it was discovered that he had a listed incompatible in
the open PC population. He therefore remained in segregation while the
IPSOís office explored the possibilities of mediation. Such mediation
did not prove feasible, and Mr. Colluney, notwithstanding his cooperative
behaviour, remained in segregation. At his ninety-day review, he was advised
that Kent would seek his re-transfer to Mission Institution. This plan
was pursued with the full support of his case management team. The Mission
administration, however, was not prepared to accept Mr. Colluney back
for at least six months. Given his incompatibility in the open population,
he would have to serve those six months in segregation at Kent.
Several staff members at Kent had already raised Mr. Colluneyís case
with me; they believed he was being unfairly kept in segregation while
the wardens of Kent and Mission played hardball with each other. At Mr.
Colluneyís segregation review hearings from December 2000 to February
2001, the same entries appeared on his file:
His behaviour continues to be fully satisfactory
and his case will be pursued for a return to medium-securityto alleviate
long-term segregation. A check with the preventive security officer does
not identify any additional information at this time. (Review of Offenderís
Segregated Status -- Institutional Review, Kent Institution, December
2000 - February 2001)
At the time of his segregation review on March 28, 2001, Mr. Colluney
had been in segregation for 146 days. Mr. Hammond advised him that the
Kent administration was still endeavouring to have him transferred back
to Mission. Almost despairingly, Mr. Colluney reminded the Segregation
Review Board that he had been in segregation at Kent for five months,
on top of the two months he had spent in segregation at Mission. In the
middle of February he had been reclassified to medium security, and he
was now only six months from his release date from prison.
Mr. Hammond acknowledged all of these facts. Tellingly, he concluded
the review by saying, "We are doing everything we can, and I realize that
weíre getting close to the end of our legal rope."
After Mr. Colluney left the room, I engaged Mr. Hammond and other staff
members in a discussion of his case. I suggested that since Mr. Colluney
was a medium-securityprisoner and a transfer to Mission was a reasonable
alternative to segregation, the warden of Kent had no legal rope at all
left under the CCRA. Under amendments to
the transfer process introduced in 1999 (the subject of Sector 5 of this
book), the warden now had the decision-making authority to transfer Mr.
Colluney to Mission. Mr. Hammond said he had impressed upon the warden
the inappropriateness of keeping Mr. Colluney in segregation and this
case had become an embarrassment to his staff.
In a later conversation with one of those staff members it became clear
it was more than just embarrassment. I was told staff understood Mr. Colluney
was being held illegally, given the existence of a reasonable alternative.
Yet because of institutional politics, the warden of Kent seemed unable
to pull the decision-making trigger to get Mr. Colluney to Mission. How
could staff be expected to give high priority to compliance with the law
when the wardens of Kent and Mission were prepared to allow institutional
politics to compromise it? It was a good question, and one I posed to
the warden of Kent when I spoke to him later that day.
The end-of-the-legal-rope metaphor seemed to have an energizing impact.
Telephone calls and e-mails flew between Kent and Mission, and arrangements
were made for Mr. Colluneyís transfer, which took place two days later.
Under a system of independent adjudication along the lines I have recommended,
that transfer would have taken place at least two months earlier.
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