This recognition of 'prisoners' rights' is part of a larger development which, while more pronounced in the United States, is clearly evident in Canada, where we have seen the extension of legal rights to racial minorities, mental patients, the disabled, welfare recipients, children, and the largest of all 'minorities,' women. This development has been explained by sociologists as relating to the evolution of 'mass society,' the social movement that seeks to integrate every group into the poljtical, economic, and legal systems of society.10 In the context of prisoners' rights, Jacobs has argued persuasively that the rising expectations and demands of prison ers should be seen as the consequence of the progressive realization of this mass society.11

The case for judicial intervention in the prison to ensure that the rule of law prevails has not, however, been argued with reference to sociological theses. In Palmigiano v. Baxter,12 a decision of the United States Federal Court of Appeal for the First Circuit, the court articulated the modern legal argument for judicial intervention behind prison walls.

Prison officials, facing complicated and combustible situations each day, must be free to make a wide range of decisions. Much must be left to their good faith and discretion ...Time has proved, however, that blind deference to correctional officials does no real service to them. Judicial concern with procedural regularity has a direct bearing upon the maintenance of institutional order; the orderly care with which decisions are made by the prison authority is intimately related to the level of respect with which prisoners regard that authority. There is nothing more corrosive to the fabric of a public institution such as a prison than a feeling amongst those whom it contains that they are being treated unfairly. The control of official discretion within prison walls is vital for other reasons as well. Most decision making of correctional personnel is less visible to the public than is the decision making of other public officials, and therefore less likely to benefit from the inherent constraints of public discussion and scrutiny. Prisoners themselves have no opportunity to participate in a political process which might otherwise provide some guidance for official discretion. Moreover, because prisoners are under the constant care and supervision of correctional personnel within 'total institutions' which regulate every aspect of their lives, there exist awesome possibilities for misuse of discretion to the extent that decisions which affect prisoners in important ways may be made arbitrarily or based upon mistakes of fact. Finally, it is coming to be realized that almost all of the ...individuals who are at anyone time subject to correctional authority will eventually rejoin the rest of our citizens outside the prison walls; if they are to learn to respect public authority and to participate in the democratic control of that authority as normal citizens, they need to be able to challenge what appears to be arbitrary assertions of power by correctional officials during the course of their confinement.13

It was this thesis which the plaintiffs in McCann urged the Federal Court of Canada to adopt. To the extent that it seeks to prevent the abuse of discretion by prison officials and to ensure the legitimacy of carceral authority, judicial intervention is directly linked with John Howard's principle of outside inspection. It adds to that principle the assertion that an independent judiciary has an important role to play in guaranteeing the vigilance of that inspection.

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