A HEARING AND REVIEW PROCESS FOR SEGREGATION

The segregation criteria I have suggested will not achieve the purposes of reform unless they are implemented within a procedural context perceived by prisoners to be fair. The Manual of Standards makes specific provision for the administrative segregation process. The relevant sections provide:

2-4215: The warden / superintendent or shift supervisor can order immediate segregation when it is necessary to protect the inmate and others. The action reviewed within three working days by the appropriate committee.

2-4217: Written policy and procedure provide that inmates are placed in administrative segregation only after a hearing before the warden / superintendent or shift supervisor, classification committee or their standing committee specifically designated for this purpose.

Discussion: Placement in administrative segregation should be preceded by the inmate receiving notice of the intended placement, appearance at the hearing and an opportunity to present his or her case to the hearing officers.

2-4218: Written policy and procedure provide for a review of the status of inmates in administrative segregation by the classification committee or other authorized staff group every seven days for the first two months and at least every thirty days thereafter.

Discussion: The Classification Committee should review the status of every inmate who spends over seven continuous days in administrative segregation. The hearing should determine whether the reasons for initial placement in the unit still exist; if they do not, the inmate should be released from the unit. Provision should be made for the inmate to appear at the hearing, and the results of the review should be communicated to the inmate.23

The relative lack of specificity in the due process requirements for the hearing and review process is in stark contrast to the lengthy list of such requirements specified for disciplinary hearings of major rule violations. In such cases the standards provide for written advance notice to the prisoner of the charges, a hearing before an impartial tribunal, the right to appear in person and hear evidence (except confidential information), the right to present evidence, the right to be represented by a staff member, and the right to be advised in writing of a decision based on the evidence.24

The adequacy of the Manual of Standards in ensuring a fair hearing and review process for 'special management inmates' may be judged in light of the fact that Millhaven Institution with its special handling unit has been accredited.

In 1974, when I first considered the question of procedural fairness in prison disciplinary decision-making, I outlined a proposal which contained a hearing procedure for serious disciplinary offences presided over by an independent chairperson appointed from outside the Penitentiary Service. I also urged that the administrative-segregation decision was so charged with negative consequences for a prisoner that it too should be subject to the imprimatur of an independent hearing officer. This proposal was suggested by the need for a decision-maker who was free of the biases of institutional personnel,25 and was designed to reconcile the tension that exists between the institution's need to maintain confidentiality and the prisoner's need to know the case against him. This was how I envisaged the reconciliation of these interests:

A solution to this problem of reconciling the institution's interest in maintaining confidentiality of the sources of certain kinds of information and the inmate's interest in a fair hearing ...arises from the special role of the independent chairman. This official could be presented with all of the institution's information, including confidential material and could make a judgment as to the reliability and, in light of other non-confidential corroboratory evidence, the justification for keeping the information from the inmate. Since it could be expected that the claim to confidentiality would be readily made and since it makes it more difficult for the inmate to answer the charge, directives should clearly establish a presumption in favour of disclosure of all information to the inmate, leaving the institution with the burden of establishing the need to maintain confidentiality in the particular case. Such a procedure, while recognizing a claim to confidentiality, would allow for case by case scrutiny and where the claim is upheld, the inmate access to the information refused, there would at least have been an evaluation by an independent judge.26

The Correctional Service, prompted by the recommendations of the Vantour Study Group Report on Dissociation, has implemented the proposals I put forward in 1974 for independent hearing officers for serious disciplinary offences in maximum- and medium-security institutions. The Vantour Report recommended against independent hearing officers dealing with segregation cases and instead put forth its own proposals for the Segregation Review Board. The Parliamentary Subcommittee on the Penitentiary System recommended that the Vantour proposal 'should not be judged and found wanting until it has been tried. The adequacy of protection should be reconsidered after two years of experience.'27 Based on my observations of the segregation process at Kent Institution, the system must be found wanting, in large measure because of the absence of specific criteria for segregation. This absence means that there is no presentation at the hearing of any of the evidence on which the institution is relying to justify segregation. Consequently, the prisoner is denied any real opportunity to cross-examine or to answer the case against him. He is told that he is to be detained in segregation 'pending an investigation of possible charges' or 'pending disposition of outstanding charges.' This does not constitute an invitation to the prisoner to defend himself against the allegations made against him, nor does it indicate whether those allegations justify continued segregation. What I propose in the Segregation Code is a process which, while permitting the warden to order segregation for up to seventy-two hours without a hearing (providing only that written reasons for the order be given to the prisoner within twenty-four hours), requires that continued segregation be authorized only on the order of an independent hearing officer. At the end of the seventy-two- hour period a full hearing is to be held, at which the institution's case will be presented to the hearing officer in the presence of the prisoner, unless there is a substantiated claim to maintain confidentiality for particular evidence, in which case the hearing officer would summarize that evidence for the prisoner. The prisoner would have the right to cross- examine witnesses (save those to whom confidentiality was extended) and to present evidence on his own behalf, including the calling of witnesses. The hearing officer would be required to provide detailed written reasons for the decision. The importance of this requirement to the overall process has been ably expressed by Chief Judge Foreman of the us District Court in a case concerning administrative segregation: 'The Court emphasizes that reasons are required in part to facilitate later review, both administrative and judicial. To serve this function, the reasons cannot be merely boilerplate. Detailed reasons facilitate later review, help prevent arbitrary decisions, and provide the affected individual with a rationale for the decision.'28

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