January 1995: The Merk and Jago Cases -- The Indelible Mark of Maximum Security

The morning of January 3, 1995, was bitter but bright. As I drove to Kent I encountered the strong Arctic outflow winds I had heard about on the radio weather forecast. But if these winds were going to usher in a year of change, the cases that appeared on the docket of the first disciplinary court at Kent gave no hint of it, because they bore the unmistakable mark of maximum security.

Mr. Merk and Mr. Jago were both charged with offences based upon an incident on December 17, 1994. Mr. Merk was charged with threatening to assault. The offence report of that date stated, "At the beginning of the meal line CO Clark and I overheard a portion of a conversation between Merk and Jago. Merk said, ‘Yeah, then we’ll take them hostage, torture ‘em and cut their throats.’ We were on post next to the kitchen control bubble and heard them as they walked into the dining room." Mr. Merk pleaded not guilty, stating that he and Mr. Jago were talking about the video game Street Fighter which they had just been playing in the common room. Their references had not been to staff or other prisoners. The hearing was adjourned to the following week, when the officers in question would be available to give evidence.

Mr. Jago was charged with disobeying a justifiable order. The offence report stated, "Refused to go to segregation when ordered. Physical force and gas used to subdue Jago. The inmate refused a direct order to go to segregation." Mr. Jago said he was going to plead not guilty but first wanted to know what Mr. Fox was thinking of giving him if he was convicted. If he was going to be segregated, he would fight the charge. He stated that if Mr. Fox had been in the institution the previous week, he would have seen that as a result of this incident Mr. Jago had a shiner, his lip was bleeding, and his eyes were burning from pepper spray.

Mr. Fox said he could not give Mr. Jago any assurance he would not get segregation time if he was found guilty, because it would depend on the circumstances, but at the moment Mr. Jago was presumed to be innocent. Mr. Fox did, however, ask Officer Wallin whether the institution was prepared to indicate what its recommendation might be. Officer Wallin said he did not want to prejudice Mr. Jago’s right to a fair hearing. Mr. Jago said that his hearing would not be prejudiced, because he was in control of what he did, but he was concerned that his cognitive living skills course not be interrupted, and he had sixteen days to go on that. One of the reasons he would plead not guilty was to avoid going to segregation so as not to interrupt that program. Officer Wallin stated that if Mr. Jago was found guilty he would recommend a suspended sentence so as not to interfere with his program. Mr. Jago then said he was prepared to plead guilty. Officer Wallin recommended 15 days’ segregation, suspended for 60 days, which Mr. Fox imposed.

Two days after these hearings, I observed the videotape of the removal of Mr. Merk and Mr. Jago from their cells to segregation. The removal of Mr. Merk was uneventful. Correctional Supervisor Logan informed him that he was going to segregation for comments he had made outside the kitchen regarding taking hostages. Mr. Merk co-operated, allowing himself to be handcuffed behind his back, and was then escorted to segregation, where he was strip-searched and placed in a cell.

The removal of Mr. Jago followed a very different trajectory. Mr. Logan informed Mr. Jago that he was going to segregation. Mr. Jago responded, "What are you talking about, what for?" Mr. Logan told him that earlier in the day threats had been made about taking hostages and cutting throats; although Mr. Jago had not made the statements, he was implicated in them. Mr. Jago continued to question why he was being taken to segregation, and Mr. Logan said his orders were to take him there. Mr. Jago, still seated at his desk, stated, "I won’t go easy," at which point Mr. Logan, accompanied by four or five other officers, moved into the cell very quickly and forced Mr. Jago onto the bed. It is not clear from the video whether it was at this time or a few seconds later that Mr. Jago was pepper-sprayed in the face by Mr. Logan. In any event, four of the officers were quickly on top of Mr. Jago, holding him down. Mr. Jago could be heard screaming. He was subsequently escorted out of the cell, complaining that his face was burning and asking for his tobacco.

On my first viewing of the tape I was shocked at the immediacy of Mr. Logan’s resort to force and gas. Mr. Jago had not adopted an aggressive physical stance -- indeed, he was still sitting at his desk. He had not become verbally abusive to Mr. Logan. His statement that he would not go easy had not been accompanied by any threatening gesture or attempt to pick up a weapon. Mr. Jago was not a big man; Mr. Logan was an extremely strong and physically fit officer, an expert weightlifter with biceps the size of Mr. Jago’s head, and he was accompanied by four or five other staff members. My assessment of the situation was that the use of force was premature.

I rewound the tape to view it a second time. Correctional Supervisor Knopf came into the room, and I asked her whether she had seen the tape. She had. I gave her my first impressions and also suggested that if she had been the correctional supervisor at the time, the matter would have been handled differently, without resort to the use of gas. We looked at the tape again together. I asked her why Mr. Logan had moved in on Mr. Jago and used the gas without further efforts to persuade him to go without resistance. Ms. Knopf said these situations were judgement calls, and what we could not see from the videotape was Mr. Jago’s body language. Furthermore, Mr. Logan had a wealth of experience and an intuitive sense of when it was appropriate to move in quickly. She acknowledged, however, that different officers approached situations in different ways. She suggested a video I might want to review, entitled "Verbal Judo," which she used in staff training to illustrate how it is often better to resolve a situation by coming at it from a variety of angles rather than through direct confrontation. This was her preferred approach, but it was not everybody’s. She ended her comments by saying I was right in thinking she would not have used gas on Mr. Jago.

I also discussed the Jago videotape with another unit manager who had seen it. She had spoken to Mr. Jago about the incident, and he had admitted it was stupid for him to say, "I won’t go easy," even if it was just an act of verbal bravado. She made the further comment that a swift and forceful response is the best way to make an impression on some kinds of prisoners. Particularly in relation to someone like Mr. Jago, who fit into the category of the "young punk", an experience like this would "make him smell the coffee," so that the next time he was asked to go to segregation he would realize the smart thing to do was go quietly and ask questions later. In her view, a pre-emptive action like Mr. Logan’s could make a greater impression and thus have a greater influence on the prisoner’s future behaviour.

This approach was not far removed from a statement I’d heard a B.C. Penitentiary officer make in 1973; he admitted to gassing a prisoner by mistake but sought to justify it on the basis that it would be "a lesson for the future." Mr. Jago’s gassing was quite intentional, but the action may have had more to do with making an impression on Mr. Jago by conveying to him the need for instant compliance than with any real threat he presented.

Mr. Merk’s case resumed on January 10, 1995. Officer Cove gave evidence regarding the portion of the conversation he overheard between Mr. Merk and Mr. Jago, in which Mr. Merk stated, "Yeah, then we’ll take them hostage, torture ‘em, and cut their throats." Mr. Fox asked the officer whether he knew the context of the conversation. He said he did not; he overheard the prisoners talking as they walked past him and his co-worker. Mr. Fox asked whether the prisoners seemed to be in good humour. The officer said they were. Mr. Fox asked if the officer had observed anything sinister about their conversation; for example, were they looking around to see if anyone was listening, or were they whispering? The officer said there was nothing of that nature.

Mr. Merk, in his own evidence, admitted making the statements but said he and Mr. Jago were talking about the video game they had been playing for a couple of weeks and joking about what kind of game they would make up themselves, specifically for prisoners. He said he had no institutional record for violence, and he was shocked when he was thrown in the hole that night and told he had been overheard talking about taking hostages. He had spent Friday to Monday in the hole and was then released.

Mr. Fox asked Officer Cove whether he had anything to add to his statement, particularly about the context of the conversation. The officer said the conversation had taken place on the day before increased double-bunking was going into effect, and a number of prisoners were commenting about resisting this move. The comments overheard between Mr. Merk and Mr. Jago were extremely disturbing and threatening given the hostile environment at Kent at the time, and that was why they were written up.

Mr. Fox said he was dismissing the charge, not because it had been inappropriate to log the statements or to lay the charges but because there was no evidence of a threat to assault any individual. While it may have been a fair assumption of the officers that the threats were directed against them, there was no evidence beyond a reasonable doubt that Mr. Merk was directing his threats to a person rather than speaking in reference to a video game.

Even given the legitimate staff concern regarding prisoner discontent with increased double-bunking (although double-bunking had been implemented at Kent thus far without incident), it is difficult to understand why there was not some investigation prior to the decision to segregate the two men. Had there simply been an inquiry of Mr. Merk or Mr. Jago about the conversation, Mr. Jago would not have been gassed, the men would not have spent the weekend in segregation, and charges against them would not have been laid. Any concern that approaching the two men could have provoked an incident, if they had been serious about taking hostages, could have been addressed easily by questioning them in the presence of several officers. Indeed, Mr. Logan did appear with a full cohort of support. However, those officers were deployed to segregate first, leaving it to others to ask the questions later. That may be the maximum-security way, at least for some correctional supervisors, but it can result in very rough justice.

There is a postscript to Mr. Jago’s case. In November 1997, together with Jared Sharp, an Australian student spending the semester at U.B.C.'s Faculty of Law, I interviewed Mr. Jago. The interview was one of several conducted at Kent as research for a paper Mr. Sharp was writing on the effects of juvenile incarceration on future violent conduct. Interestingly, Jared Sharp and Keith Jago were born within months of each other. Mr. Jago had first been imprisoned in "juvie" when he was thirteen years old. He had spent most of his teenage life locked up, primarily in maximum-security juvenile institutions. In his interview, Mr. Jago described a level of violence in those institutions, both between staff and prisoners and among prisoners themselves, which far exceeded the violence he had experienced at Kent Institution. Those years had created in him a deep hatred for correctional authority and reinforced a value system based on a "violence works" rationale. I asked Mr. Jago if he had learned anything from his years in juvenile institutions. Reflecting on his time at the Boulder Bay maximum-security camp, he told us:

The only thing I learned is that in freezing cold weather standing in the middle of a lake trying to make a helicopter pad, your hands tend to freeze to the sledgehammer. Other than that there was nothing to learn in Boulder Bay. (Interview with Keith Jago, Kent Institution, November 1997)

Mr. Jago told me he had no problem with a system of discipline. "Discipline’s good; just don’t go to the excessive like throwing me in a little rubber room and start spraying me with hoses. That’s too much. I’m not an animal, I’m a human being." When, ten years after his experiences in juvenile detention, Mr. Jago was gassed at Kent Institution while sitting at his desk, it was not a signal that he should smarten up but a painful reminder that he had not yet outdistanced his reasons for hating correctional authority.

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