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The American prison cases in this area have centred on the applicability
of the Fourteenth Amendment to the U.S. Constitution, which guarantees
that the states shall not deprive any person of life, liberty, or property
without due process of law. The courts, in approaching the questions of
when and to what extent due process has to be afforded in the prison context,
have looked at the realities of prison life and have accepted the concept
of institutional liberty as being within the protection of the Fourteenth
Amendment. The prevailing approach of the American cases has been to ask
whether the decision under review caused the prisoner 'grievous loss'
so as to outweigh the governmental interest in summary adjudication.111
In Landman v. Royster,112
inmates of the Virginia prison system brought a class action, maintaining
that they had been placed In solitary confinement and / or had had statutory
remission taken from them without due process of law. The court heard
extensive evidence on the practices of the disciplinary system of the
Virginia state prisons and the procedures whereby men were placed in solitary
confinement. In his judgment, Merhige J described the conditions and procedures
for transfer to 'C-cell,' the segregation unit at the Virginia State Farm,
in this way:
C-cell inmates ...enjoy substantially fewer privileges
than men among the general population. Prisoners in C-cell cannot be employed
in a work program; thus they are denied the opportunity to earn money...
Religious services and educational classwork are unavailable, although
men may be visited by a chaplain. There is no access to a library, although
the men can receive magazines ...The likelihood of release on parole is
almost nonexistent to men placed in C-cell and in practice there is no
chance that lost good time will be restored. In addition, showers are
permitted only at weekly intervals instead of daily and men in some segregation
units are unable to exercise outdoors.
The question whether a man should be placed in C-cell
in the first instance ...is not always determined by disciplinary committee
hearings. This, decision may be made by the Superintendent alone ...It
was [the Superintendent's] practice ...to interview all prisoners in C-cell
every six months to determine whether return to general population was
indicated. Criteria determining the decision to place a man in C-cell
or remove him were extremely hazy. A man's attitude, his disruptiveness,
tendency to challenge authority, or non-conforming behaviour, as reflected
in written or oral guard's reports, may condemn him to maximum security
for many years.113
In his legal analysis Merhige J rejected the argument that the right
to be free of substantial restraints of solitary confinement or to earn
statutory remission were matters of mere legislative or administrative
grace. He held that both the decision to take away remission and to place
a man in solitary had substantial effects on a man's life amounting to
'grievous loss': 'A man in solitary confinement is denied all human intercourse
and any means of diversion ...Loss of good time credit may in effect amount
to an additional orison sentence.'114
The judge also stated that once it was decided that a deprivation had
such a substantial effect on a prisoner's life that it must be preceded
by due process, it was not relevant whether the institution chose to present
that deprivation whether in terms of a 'punishment' or as a technique
for maintenance of 'control' or 'security.' The real issue was the actual
effect of the decision, given the realities of the prison, and not the
labels that the prison administrators chose to use.
In his ruling, Merhige J held that before imposition of solitary confinement
or loss of statutory remission, due process required that a prisoner be
given a hearing before an impartial tribunal, notice of charges, the right
to cross-examine adverse witnesses, a decision based on the evidence and,
in certain circumstances, the right to counselor counsel substitute.
It is also important to note that Merhige J, in coming to hIs conclusions,
made a careful analysis of the legitimate interests of prison administration
in the allocation of scarce resources for rehabilitative purposes and
in the speedy determination of disciplinary infractions. He concluded
that the rules of procedural fairness he deemed necessary would not impede
these legitimate interests.
In Clutchette v. Procunier,115
inmates in San Quentin sought declaratory relief on the ground that the
procedures relating to solitary confinement did not meet minimal standards
of due process. In San Quentin, as in British Columbia Penitentiary, a
distinction existed between a sentence of punitive dissociation limited
to thirty days and confinement in the segregation tier or adjustment tier
for an indefinite time. In its judgment, the Court of Appeals for the
Ninth Circuit described the conditions in this way:
There is very little difference between 'isolation'
and the Adjustment Center. Adjustment Center inmates are compelled to
spend their days in idleness, confined to their cells 23 hours a day,
seven days a week. None of the ameliorative programs provided for the
general prison population are available to them. Because they are not
permitted to work, they lose even the meager wages with which they could
make minor purchases at the canteen. They cannot enroll in vocational
training programs or attend school. They are barred from church services,
movies, television, and all other forms of recreation and entertainment
which might help to relieve the monotony of prison life.116 Page 3 of 8
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