THE CONDITIONS OF SEGREGATION

In the previous two sections I have suggested that the American Correctional Association's Manual of Standards, like the recommendations of the Van tour Report, is deficient in not articulating specific criteria to limit the power of administrative segregation and in failing to provide adequate procedural safeguards in the segregation hearing and review process. However, the manual is more explicit in setting out minimum standards for the conditions of segregated confinement. These standards require prisoners in administrative segregation to be clothed like other prisoners; to be provided with basic personal items for use in their cells, unless there is an imminent danger that the prisoner will destroy an item or injure himself;42 to receive the same meals as the general population; 43 to have the same issue and exchange of bedding, linen, and clothing as the general population;44 to be provided with the same opportunities for visits,correspondence, and telephone privileges as are available to the general population, unless there are substantial reasons for withholding such privileges;45 to have the opportunity to shave and shower at least three times per week;46 to receive a minimum of one hour per day of exercise outside their cells, unless security or safety considerations dictate otherwise;47 to have access to legal materials and the opportunity to borrow reading materials from the institutional library; to be allowed to participate in institution programs to the same extent as the general population, providing their participation is consistent with the safety and security of the institution;48 and to receive daily visits from the senior correctional supervisor in charge, a qualified member of the medical department and, by request, members of the program staff.49

It is clear that these standards are designed to ensure that the segregated prisoner is afforded the same rights and privileges as the prisoners in the general population, apart from freedom of movement outside the cell. As I have already pointed out, the present penitentiary regulations, in theory, provide that a segregated prisoner shall not be deprived of any of his privileges and amenities; but they subject this provision to an enormous qualification: 'except [those] that cannot reasonably be granted having regard to the limitations of the dissociation area and the necessity for the effective operation thereof.'50 The depressing reality which existed in 1975 at the British Columbia Penitentiary and which continues to exist at Kent Institution is that this qualification has been used to justify discriminatory and debilitating treatment of segregated prisoners. The recommendation of the Van tour Report that prisoners in segregation be entitled to the same amenities as other prisoners (except for the privilege of association) 'insofar as is reasonable'51 has proved to be totally inadequate in bringing about any real change in this situation.52

The standards in the manual are also subject to qualifications. Standard 2-4222 seeks to prevent abuse of some of those qualifications by requiring that whenever a prisoner is deprived of any usually authorized item or activity, a report of the action is to be made and forwarded to the chief security officer. The commentary to this standard requires that the withholding of any item or activity should be for no longer than is necessary to ensure the safety and well-being of the prisoner, staff, and other prisoners. This is clearly designed to ensure that decisions to withhold privileges are made on an individual basis. However, in my judgment the mere reporting of a withholding is not likely to ensure that it is well founded. The policy of individualizing and justifying restrictions on the rights and privileges of segregated prisoners would be more effectively, secured if such decisions were referred for ratification to an independent hearing officer.

Some of the other qualifications in the standards require rather more extensive amendment. Subjecting the entitlement of segregated prisoners to participate in institutional programs to such vague qualifying phrases as 'the safety and security of the institution' is little more than an open invitation to continue the past practices of de facto exclusion. If the purpose of the standard is to ensure that segregated prisoners are not excluded from programs, this purpose would be better achieved by requiring the institution to provide a range of programs suitable for prisoners working by themselves or in small groups, programs which minimize security and safety risks. The concem, in other words, should not be to provide an illusory standard of equality of opportunity to participate in all institutional programs but rather to provide separate but equal opportunities.

Would the adoption of the conditions of segregation set out in the Manual of Standards (subject to my amendments) ensure adequate reform of conditions? An appropriate way to answer this question is to look at the proposals that the prisoners at Kent Institution have suggested for H unit The following is taken from a list of proposals presented to the institutional authorities by the Inmate Committee early in 1981.

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