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7. The Case for Entrenchment of Prisoner's Rights

In the earlier chapters of this book, I have shown how the prison reformers who introduced the penitentiary into the lexicon of punishment saw the need for rules to check the virtually unfettered discretion of the authorities, which they regarded as lying at the core of the abuses of the old system of imprisonment. The rules were designed as much to bind the keeper as they were to discipline the kept. I have shown how the system of solitary confinement, which, like the system of rules, was integrally associated with a reform movement designed to change the nature of the prison and the men within it for the better, has become the most abused and abusive part of modern corrections. I have shown how its exercise has become devoid of any rules limiting the power of the correctional authorities in its invocation and application. From a historical perspective it is clear that the Parliamentary Subcommittee on the Penitentiary System in Canada, in its 1977 demand that 'justice be recognized as an essential condition of corrections,' was restating a principle that had been propounded as an essential element of penitentiary discipline by the Brown Commission in 1850 and reiterated by Inspector Moylan throughout his long tenure as inspector of prisons. The principle has failed to inform the practices surrounding the penitentiary's ultimate power over prisoners. The parliamentary subcommittee recommended that there be 'clear rules, fair disciplinary procedures and the providing of reasons for all decisions affecting inmates' to replace 'the arbitrariness traditionally associated with prison life.'1 To ensure the enforceability of the justice principle, they further recommended that the rules and procedures affecting prisoners be consolidated into a consistent code of regulations having the force of law. For this reason I propose that the Segregation Code I have set out should be embodied in regulations and not merely in commissioner's directives. Once this has been done the legal profession and the courts will playa vital role in seeing that the code is enforced as a necessary continuum of the criminal justice system. Under the code the task of ensuring 'that thesystem is definitive in its commitment, clear in its intentions and effective in its prescription'2 will fall primarily upon lawyers in their representation of prisoners at hearings before the independent chairperson. That representation will involve the development of arguments on the meaning and application of the code's criteria and procedures, which inevitably will have penumbras of uncertainty at their edges. The role of the courts will be much more focused than it is under the existing law. The code provisions rather than court decisions will identify what fairness requires both in a substantive and in a procedural sense. The role of the courts will be to review rulings by the independent chairperson on issues of interpretation of the code and to consider cases involving allegations that the code provisions have been violated. In the words of the subcommittee, 'the nature of the task ...to be done by the courts in ensuring that the Rule of Law prevails within penitentiaries should not be disproportionate to what they do outside prison walls on an ongoing basis.'3

The model of reform I have advocated, while recognizing the important role to be played in certain cases by negotiation between prisoners, prison staff, and prison administration, clearly relies upon legal rules and due process of law to control the exercise of power. Some readers may wonder how, having shown how little effect the McCann case has had on subsequent practices of segregation, I can have any confidence that the Segregation Code, attended by its greater intrusion of the law and lawyers, will change what actually happens within the walls. As Richard Ericson has pointed out, 'it is a common feature of bureaucratic organizations that rules intended to influence the actions of agents are routinely absorbed by the agents to conform with their existing practices.'4 In the exercise of state power outside the walls, in matters such as police powers of arrest and search, the legal and criminological literature has documented that, despite the existence of legal limitations on these powers and the development of rules to ensure respect for individual rights, there exists a great distance between the law in the law books and the practice in the police station. Thus, 'efforts to develop rules relating to the right of the accused to silence while in police custody are absorbed and made useful to the police; efforts to review and control police search practices have no effect but to legitimate what the police wish to do.'5 Why should it be any different with the Segregation Code? Will the code with its reliance on legalism be nothing more than a veil leading people to 'mistake due process for substantive relief from tyranny?'6

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