6. A Model for Reform
The riot that took place at Kent in June 1981 can be viewed on one level
as a resistance to lawlessness.1 Rioting
is not the prisoners' preferred means of protest because it inevitably
brings reprisals against those involved. After the riot, the members of
the Kent Inmate Committee and others who were seen by the authorities
as ringleaders were all placed in H unit. One month later several of them
were charged with disciplinary offences, convicted, and given some of
the harshest sentences to be handed down in recent penitentiary history.
One individual received ninety days' punitive segregation and forfeited
135 days of his remission. After serving over thirty days in the hole,
he was transferred to the special handling unit at Millhaven and subsequently
charged with criminal offences.
Lawyers, when confronted with lawlessness and abuse of power, are trained
to respond with an armoury other than forcible resistance. We look to
a panoply of legislation and regulations to circumscribe authority, and
to the courts to supervise and hold officials within the boundaries of
that authority. So far we have been woefully impotent in confronting abuses
of carceral power. The comments of an observer of American correctional
law - an area where judicial intervention has been far more extensive
than in Canada - are even more relevant to the Canadian situation.
Most of what has been accomplished has done little
more than remove a handful of vines from the jungle in which offenders
find themselves entangled. The basic structure of the prison has not changed
at all. The basic structure of the criminal justice system has not changed
at all. The level of societal concern for those who find themselves behind
prison walls has not changed at all. I am not optimistic about the likelihood
that much of what we see will be changed at all. But it could. Whether
changes are made or ignored will depend in large part on the quality and
scope of the attack that is mounted by those who work outside the walls
to change what happens on the inside.
There are many reasons to believe that the legal community
could launchsuch an attack with a reasonable probability of success. If
the members of that community fail to do what they are capable of doing,
the rest of us - the preachers and the teachers and the trainers and the
many species of therapists - will be glad to make them honorary members
of the fraternity of failures we have so studiously cultivated for many,
many years. They will have earned it.2
This is not a comforting prospect, but it is nevertheless a vital challenge.
The question remains as to the nature of the changes lawyers can advocate.
At the beginning of this book I suggested that the power to place a man
in solitary confinement is the ultimate manifestation of the state's carceral
power over the individual. The abuse of this power in Canada's maximum-security
penitentiaries casts a shadow of illegitimacy over the nature of imprisonment.
In advocating a model to control this power-a model which specifies criteria
for its exercise, subjects it to standards of procedural fairness, and
prescribes the minimum requirements for the regime under which segregated
prisoners will serve their time -I hope to illustrate to prisoners, to
prison administrators, and to lawyers that imprisonment can be subjected
to the rule of law and that the rights of the kept can be protected without
undermining the ambiguous and invidious task assigned to the keepers.
A preliminary point which relates to the implications of such a model
of reform must be addressed. Some of the people who have read drafts of
this book have argued that having documented the history and nature of
the state's ultimate carceral power and having sought to demonstrate its
illegitimacy, I should lend the weight of this book to the prison-abolition
movement. Their argument is that while solitary confinement may be the
worst case of the abuse of the keeper's authority and the worst case of
the abuse of the human rights of the kept, those abuses characterize the
very nature of imprisonment. They argue that it is imprisonment itself,
rather than the particular practices upon which I have focused, that is
the central evil. They argue further that to fail to draw the abolitionist
conclusion and to present a model for reform is likely to confer legitimacy
on the prisons, and, in Jessica Mitford's words, 'may strengthen the system
in the long run by refurbishing the fašade of prison and thus assuaging
the public conscience.'3 The suggestion
that I stop my analysis at this point and conclude by condemning not just
the practice of solitary confinement but also the prison as an institution
has its attractions. It is attractive because in its 'absence of tiresome
qualifications, cautious parentheses, and saving clauses [it] seems in
itself like a foretaste of the mass liberation proposed.'4
It is attractive because I agree that the prison, be it the nineteenth-century
bastille of the British Columbia Penitentiary or the modern 'correctional
institution' of Kent, 'denies autonomy, degrades dignity, impairs or destroys
self-reliance, inculcates authoritarian values, minimizes the likelihood
of beneficial interaction with one's peers, fractures family ties, destroys
the family's economic stability, and prejudices the prisoner's future
prospects for any improvement in his economic and social status.'5
It is attractive because I would like to live in a society whose members
had enough respect for each other and for the values of equality and social
justice that we would not need the prison.
Yet I have resisted the attractions of the abolitionist stance because
it offers little consolation or hope to those now experiencing the most
extreme of the pains of imprisonment. I undertook to write this book,
as I undertook my involvement in the McCann
case, to put a stop to practices that no man should impose upon another.
This book is grounded in the experiences of Canadian prisoners who have
suffered these practices. I have sat with men who have set themselves
on fire and slashed their throats, with men who have been driven mad,
and with a man, who, days later, hanged himself in his solitary-confinement
cell. My endorsement of the abolitionist position, however impassioned,
is not going to stop the practices that give rise to such experiences.
My model for reform is designed to ensure that the practices do cease.
Jessica Mitford has argued that it is possible to distinguish between
two types of reform proposals: those which 'will result in strengthening
the prison bureaucracy, designed to perpetuate and reinforce the system,
and those which to one degree or another challenge the whole premise of
prison and move it in the direction of its eventual abolition.'6
She has suggested that examples of the latter type of reform are proposals
aimed at 'returning to prisoners those constitutional rights that will
enable them to organize and fight injustice within the system.'7
This is the thrust of my model of reform. I hope that its presentation
will not be interpreted as diminishing the need for Canadian society to
give the most serious reconsideration to the future of imprisonment.
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