The last two elements of my proposed segregation process are closely related. First, in every case where the institution seeks to continue segregation for more than thirty days the hearing officer shall hear expert evidence as to the effects of such continued segregation on the individual prisoner. Second, there is to be a ninety-day outer limit on the duration of administrative segregation. I have described how segregation practices have given rise to great psychological and physical suffering. The purpose of the first proposal is to ensure that the hearing officer is made aware of the effects of the segregation decision on a case-by-case basis; where the evidence demonstrates that continued segregation will cause substantial psychological or physical harm, the prisoner must be released from segregation. Under the proposed code, the independent hearing officer will hear the evidence of two experts in psychiatry or psychology. One of these is to be appointed by the warden, the other by the prisoner. (H the warden and prisoner agree on the same expert, only one opinion is required.) The requirement of two experts is based on my own experience and that of the prisoners I have interviewed that psychiatrists and psychologists who are employees of the prison authorities have not sufficiently demonstrated the necessary independence of mind to justify exclusive reliance upon their evidence as to the effects of segregation. An expert from outside the prison system who is free from the strong institutional pressures to uphold a common front is more likely to 'tell it like it is.' It may be that the transfer of the decision-making power from the warden to the independent hearing officer will encourage prison psychiatrists and psychologists to be more forthright in their opinions on the effects of segregation. It might just as easily push them into an even closer identification with the prison administration's view of the case. For the time being, therefore, it is likely that prisoners and their counsel would look to experts outside the prison system to participate in the hearing and review process.

The ninety-day limit on the duration of administrative segregation may appear to be the most radical element of my proposed segregation code in light of present practice. In fact, the limitation was an integral part of the original regimes of penitentiary discipline. At Pentonville, nine months soon became the maximum time spent in solitary. The Crofton system in Ireland, long the inspirational source for the Canadian prison inspectorate's ideas on penal reform, had a similar time limit. Underlying the time limits of the nineteenth century was the belief that if solitary confinement was extended beyond a certain point, the reformatory objectives of penitentiary discipline would be undermined rather than enhanced. My resurrection of an outer time limit is designed to serve a number of purposes which have less to do with positive assumptions of rehabilitating men in prison than with the negative, albeit more realistic, conviction that we must not permit the segregation experience to debilitate men in prison.' Thus the ninety-day limit is designed to change the open-ended nature of administrative segregation, which every segregated prisoner I have interviewed has regarded as the principal factor in the undermining of prisoners' psychological integrity. Furthermore, because the authorities will no longer be able to lock up prisoners indefinitely, the time limit is designed to provide an incentive to develop and implement responsive programs for segregated prisoners aimed at easing their reintegration into the population within a clearly defined period. The ninety-day limit provides a limited agenda for both the keeper and the kept. The only exception to the ninety-day limitation would be the case where a segregated prisoner commits further acts which under the proposed criteria justify a further period of segregation. That additional period of segregation would also be subject to a ninety-day limit.41

I would be less than honest if I did not admit to a further reason for suggesting an outer time limit on segregation. I believe that the adoption of the full reform slate I am advocating will bring about significant changes in the nature of segregation. I may be wrong. I believed that the McCann case would bring about change. I have described how subsequent events proved me wrong and why I believe that the lack of change may have much to do with the deeply entrenched adversarial relationship between the keeper and the kept. That relationship is highly resistant to structural change, especially where the agent of change -the judgment of a court -is itself the product of an intensely adversarial process. Most of my proposals accept that in the context of maximum-security institutions, the nature of this relationship is not likely to change. Indeed, most of the proposals can be viewed as attempting to ensure that in the ongoing battle the prisoners have sufficient legal armour to defend themselves adequately against the prison's heaviest assault. It is just possible that, as has already happened with the SHUs, my proposals will make segregation appear more rational and civilized but leave it in fact no less repressive for the men who endure it. If I am wrong again and if despite my elaborate code segregation remains the soul-destroying experience it has always been, then the ninety-day limit will at least render the repression finite. The time limit will reduce the likelihood of prisoners setting themselves on fire like Jack McCann to escape the madness, slashing their throats like Donny Oag to focus their pain, slipping over the edge of insanity like Tommy McCaulley, and ultimately, like Jacques Bellemaire, 'letting the light go out.'

How would this model procedure operate in practice? Let us go back to the facts of case F. Having received the informant's warning about the planned escape and hostage-taking, and having corroborated this through discovery of the weapons cache, the warden will be authorized to segregate the prisoners on the reasonable and probable ground that they represent a serious and immediate threat to the physical security of the prison or the physical safety of staff or prisoners. Within twenty-four hours the warden will be required to advise the prisoners that they are suspected of planning an escape and hostage-taking. At the hearing before the independent officer two days later, they would be entitled to be represented by counsel who would see that the case against the prisoners was substan tiated by specific evidence. At that point the warden could raise the issue of the confidentiality of the information and the need to protect the source of that information. In case F, the prisoners involved knew full well who the informants were. Soon after their segregation they had asked to see me, and in the interview they told me that they had been given no reason for their segregation by the warden other than a written notification that they were there 'for the good order and discipline of the institution.' However, they had been told informally by the psychologist that they were being segregated because of their suspected involvement in an escape and hostage-taking plan. In their interview with me they denied any involvement and suggested that the two prisoner informants, who they alleged were homosexual lovers, had concocted a false story in return for the institution's agreement to transfer them together to another institution. The two informants were indeed transferred into protective custody soon after the accused prisoners had been segregated. The accused prisoners suggested that the idea that they were planning an escape and a hostage- taking was fanciful because they had been well-behaved in the institution, had never committed any disciplinary offences, and had been working in the kitchen for months with easy access to knives and other potential weapons, yet had never sought to use these under circumstances where hostage-taking was not difficult. One of the prisoners had set out all these facts in a letter to the chairman of the Segregation Review Board.

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