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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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