Prisoners in H Unit should have more access to law books; a prisoner from H U nit should be elected as a member of the Inmate Committee so he can voice all their unique and special problems; an open visiting program must be worked out so that the prisoners in H Unit can visit with their families and friends other than a screened visit; a longer and better exercise program must be worked out for H Unit prisoners, perhaps using the gymnasium during the day when the main population is not using it; an education program must be set up for the prisoners in H Unit with their own separate area and instructor; prisoners in H Unit [should] be allowed more showers, clothes and bedding changes and more sanitary conditions; prisoners in H Unit [should] be allowed to have their personal effects; prisoners in H Unit [should] be permitted to go to church and to participate in religious programs if they so desire; prisoners in H Unit [should] be allowed to have a TV, either in the TV rooms or in their cells; prisoners in H Unit [should] be allowed limited hobby work that does not present any type of threat to either staff or other prisoners.53

With few exceptions the prisoners' proposals are consistent with the minimum requirements of the Manual of Standards as amended. The institution's response to the prisoners' proposals was a statement that facilities at H unit did not permit the kind of programs envisaged. Measured against the Manual of Standards, this response to the prisoners' proposals would simply not pass muster. It is clear that the prisorters at Kent can bring forth reasonable proposals that do not undermine the legitimate concerns of security, yet which respect those matters that prisoners view as essential to maintain a semblance of legitimacy and dignity in their confinement.

The Canadian experience with special handling units is particularly relevant to the issue of the conditions of segregated confinement. That experience demonstrates that those prisoners who are regarded as the most dangerous in the penitentiary system can be confined under the strictest security regime without being locked up for twenty-three hours a day and without restricting to the point of extinguishment all the ordinary rights and privileges of prisoners in the general population. Let me be quite clear about this. I have had some harsh things to say about the special handling units and I will be making recommendations regarding them shortly. The fact remains that they provide irrefutable evidence that the rigours of segregation regimes such as the one that exists at H unit in Kent Institution are not justified on security grounds.

The Kent prisoners' list of proposals was an abortive attempt on their part to start negotiating the conditions of their confinement. In Justice Behind the Walls I suggested that a negotiation model is an alternative to a 'due process' model for resolving certain aspects of the relationship between the keeper and the kept.54 The due process model sees the prisoner, the prison staff, and the administration as engaged in an ongoing battle in which the interests of the combatants are viewed as irreconcilable. The due process model proceeds on the assumption that the principal way to legitimize state power and prevent its abuse is by pouring specificity into the criteria for decisions and girding the making of those decisions with rules that ensure fairness. The negotiation model proceeds on the assumption that the prisoner, the staff, and the administration are part of a community characterized by often conflicting but still reconcilable interests. In the negotiation model, formal bargaining brings a redistribution of power along mutually accepted lines on the assumption that such redistribution will provide an alternative check against abuse of power. The negotiation model, it has been argued, also gives prisoners a sense of dignity, self-respect, and responsibility for their own lives, values which the prison traditionally has deadened and which the due process model does little to quicken.55

In Justice Behind the Walls (1974) I recommended that in the context of prison disciplinary practices a dual system of prison justice be established, with negotiation predominating where there was a reconcilability of interests and due process where there was not. I further recommended that in cases of serious offences, regardless of reconcilability, where the exercise of power could take the form of lengthening the term of imprisonment (through loss of remission) or severely limiting institutional freedom (through punitive segregation) the due process model should be the principal method of controlling that power. I now propose a dual system for dealing with administrative segregation. Reconcilability of interests will rarely exist when the prison administrator seeks to segregate a prisoner and the prisoner seeks to resist such segregation. Because of this and because administrative segregation is the most serious and the most abused exercise of power in the Canadian penitentiary, I have used the due process model in constructing criteria and procedures in the Segregation Code.

I suggest, however, that the conditions of segregated confinement are amenable to a negotiated settlement. Although (as the McCann case illustrates) the interaction of prisoners and guards has all the indicia of deep-seated irreconcilability of interests, this is largely a function of existing practices and conditions. But it is clear that the prisoners, the guards, and the prison administration have a common interest in avoiding conditions that result in the constant escalation of force and counter-force. In his evidence in McCann, Dr Stephen Fox spoke of the need for a program of negotiation, 'of equal dialogue' between the prisoners, guards, and administration, as the only alternative to the cycle of violence. As the experience at Kent illustrates, such negotiation is not possible at present because there are no minimum standards to provide a reference point for negotiation; nor do the prisoners have recognized standing to negotiate on such matters. I suggest that with the promulgation of a Segregation Code that establishes minimum standards for conditions of confinement along with clear criteria and a fair process, the precise contours of segregated confinement within a given institution could fruitfully be the subject of a properly recognized system of tripartite prisoner-staff-administration negotiation.56

A new segregation unit is being built at Kent to replace H unit. My re view of segregation practices at Kent demonstrates that new architecture alone is not capable of ensuring the legitimacy of carceral authority. What is more critical is a willingness on the part of the administration and staff to negotiate with the prisoners the regime under which they will live their institutional lives. My proposed model for reform is intended to provide a common agenda for the beginning of that negotiation process.

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