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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

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