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3. Solitary Confinement in the Age of Corrections: Cruel and Unusual Punishment in the Twentieth Century

In the 130 years since the Brown Commission rendered its report on the brutality of the first penitentiary regime at Kingston, there have been many changes in the Canadian penitentiary system, changes that most observers would view as evidence of the progressive liberalizing and humanizing of carceral power. The rule of silence has been abandoned; the cat o'nine-tails and other forms of corporal punishment have been prohibited; access to the outside world through visits and correspondence has been expanded; maximum security is now only one of a series of custodial alternatives; in accordance with the 'rehabilitative ideal' (which, to accommodate prevailing theories of criminality, has been redefined to emphaize social and psychological rather than moral growth), there has been an 'enrichment' of the penitentiary regime through various types of programs and the addition to the staff of persons skilled in counselling; and the prisoner's return to society from the penitentiary has been modulated with the introduction of the parole system.1

I have said that these changes are seen by most observers of the penal system as part of a pattern of liberalization. Others take a more cynical view, and see a process not of liberalization but rather of the extension and elaboration of control over the lives of prisoners in the name of rehabilitation.2 (I have written elsewhere on the reality of re habilitation in the penitentiary, particularly the prisoners' reality,3 and I shall return to this theme later.)

While there have been changes in the system, there exist certain continuities that link our time with the preceding century. Prisoners are still serving time in Kingston Penitentiary and in other maximum-security institutions built in the nineteenth century on the architectural model of Kingston.4 Within their austere and forbidding walls, men no longer cry out from the lash as it falls on their bared backs; but the screams that were heard in Cherry Hill and in Pentonville 150 years ago are still heard in Canada's maximum-security penitentiaries today. These screams are not those of the ghosts of the past; they are the screams of the living, of men who still endure the experience of solitary confinement.

As my review of the evolution of the penitentiary in the nineteenth century has shown, solitary confinement was inseparably linked to the disciplinary regime, both in principle and in the language of the penitentiary. Today, one would search in vain to find any reference to it in the statutes, the regulations, or the myriad directives that together form the legislative and administrative structure for penitentiary discipline. If we seek continuity in language in tracing what has become of solitary confine ment we will conclude that it, like the cat-o'-nine-tails, has been cast aside as an agent of discipline. But to trust in language would be to err.5

In the modern language of the penitentiary, prisoners are not placed in solitary confinement; rather, they are put in 'dissociation.' Within the prison walls dissociation is also referred to as 'segregation,' and is known to prisoners everywhere in North America as 'the hole.'

A prisoner in a Canadian penitentiary may be dissociated under three broad categories. Under section 2.29 of the Penitentiary Service Regulations (which were introduced in 1962 to replace the 1933 regulations)6 a prisoner who has been found guilty of a serious disciplinary offence may be sentenced to up to thirty days in dissociation. This is referred to in the regulations as 'punitive' dissociation. The other two categories of dissociation, which are referred to as 'non-punitive,' are provided for in section 2.30 of the regulations: Because section 2.30 will be referred to a great deal, it is set out here in full:

(1) Where the institutional head is satisfied that

(a) for the maintenance of good order and discipline in the institution, or (b) in the best interests of an inmate

it is necessary or desirable that the inmate should be kept from associating with other inmates, he may order the inmate to be dissociated accordingly, but the case of every inmate so dissociated shall be considered, not less than once each month, by the Classification Board for the purpose of recommending to the institutional head whether or not the inmate should be returned to association with other inmates.

(2) An inmate who has been dissociated is not considered under punishment unless he has been sentenced as such and he shall not be deprived of any of his privileges and amenities by reason thereof, except those privileges and amenities

(a) can only be enjoyed in association with other inmates, or
(b) cannot reasonably be granted, having regard to the limitations of the dissociation area and the necessity for the effective operation thereof.

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Kingston Pententiary, circa 1930s