The problem with solitary confinement
It's a practice that has been in the news since the Ashley Smith case first made headlines and, last week, the Ontario government announced it had launched a review of its solitary confinement policies.
Kelly Hannah-Moffat is an expert on prisons, risk assessment and punishment, particularly as experienced by women and marginalized populations. A professor of sociology at the University of Toronto Mississauga and director of the Centre of Criminology & Sociolegal Studies, she spoke with writer Jenny Hall about the practice – what is it, what is it supposed to accomplish, and how is it being used?
What does solitary confinement really mean in practice?
Most of the time solitary confinement refers to being in a cell with a restricted amount of possessions. You're in a cell with a steel bed that is attached to the wall. Sometimes you have a mattress, sometimes you don't. There will be a toilet and a sink attached to the wall. You might have a barred door or a full metal door with a small window. There's a slot at the bottom that a meal tray can go through.
Normally you are in that cell for 23 hours a day and allowed out for an hour for showers or for recreation, which is quite basic and involves moving to another space, sometimes a closed-in concrete space that has some natural light or natural air. You can walk around, but you're by yourself. Normally, the movement between the cell and the recreation space is in restraints – shackles and handcuffs. Many cells are subject to 24-hour monitoring by camera.
There is very little human interaction. Solitary confinement basically prevents you from associating with other prisoners, and severely restricts your movement and can prevent access to visits, treatment, programmes and services.
Are you allowed to have books?
It depends on the type of solitary confinement you're in. If you have all your privileges withdrawn, then no. But if you're allowed some privileges, then you could have a book. If you're on a suicide or self-injury watch, you may not have a mattress, you may not have a blanket, you may not have your own clothes and you wouldn't have a book or anything you could use to start a fire, harm yourself, or cover a camera.
Can you explain the different types of solitary confinement?
A more punitive or disciplinary segregation would occur if an offender has violated one of the institutional rules. More commonly used is something called administrative segregation, where someone can be placed in segregation for security reasons – to protect their safety or the safety of other prisoners or to protect the security of the institution. This might be somebody who causes fights or is prone to victimization due to their offences or status. It might be someone suffering with acute or unmanageable mental health issues who can't self-regulate in the wider population or somebody who chronically self-injures or is at risk for committing suicide.
How common is solitary confinement?
Correctional Service Canada will say that it does not use solitary confinement but instead uses forms of administrative segregation or a "secure unit." This is a bit of linguistic gymnastics because each is a secured space where there is minimal freedom and high surveillance. So in effect, we don't have clear numbers. But we do know from reports from the correctional investigator, who is a federal ombudsman who looks into complaints and grievances and looks at issues pertaining to the rights of federally sentenced prisoners, that there were 8,221 admissions into segregation in 2012-13. This is up from 7,137 in 2003-04. We also know that a significant proportion of complaints about conditions pertain to segregation, and that many people in segregation have mental health difficulties or are at risk of self-harm or suicide.
So the typical person in segregation is not our image of the horrible, violent offender.
We tend to have a skewed perception of prisoners, especially those who are in segregation. We see them as "the other," as the terrifying violent predators or the mythical personalities we see on TV who are overly vicious and lethal. But that's not representative.
Many have mental health problems or cognitive impairments. It's no surprise when you look at files of people in prison. They are struggling with complex and interconnected issues: addiction, abuse, trauma. They were often in the child welfare system or had family-of-origin issues. They haven't done well at the front end of their life, so it's not surprising when they get to the back end that this is where they are.
Is it legal to put people with mental health issues or cognitive impairments into solitary confinement?
The UN declaration for the minimum standard for treatment of prisoners says that you should not put people with mental health difficulties in segregation.
That has not been honoured, and that's partly because we don't have very good capacities to address mental health needs in custody. People in custody don't have good access to psychiatric nurses, to psychologists, to staff with appropriate levels of training to deal with people who are ill.
The Office of the Correctional Investigator and many international and local advocates, inquires and inquests have raised many concerns about the continuation of this practice and its damaging and sometimes lethal effects. Yet it continues.
Does solitary confinement work when it's applied for disciplinary reasons?
You might have a sense that if we put somebody in segregation, they're going to learn their lesson, and they're going to come out and behave properly and follow the rules. There's no empirical evidence to actually support that. Generally speaking, we know that deterrence is not particularly effective in getting compliance from people. International research shows that segregation has harmful effects, and that it can actually exacerbate the negative behaviour you are trying to control. It can create irreversible psychological damage.
Could that same logic mean that prison in general isn't effective?
There is no evidence that says prison is effective. It isolates people's mobility for a short period of time, but it does very little to ensure that someone won't reoffend in the future. You can selectively incapacitate people, you can hold them in a space and prevent them from moving and interacting with other people for a defined period of time, but in the long term that doesn't solve the underlying problems that bring people into conflict with the law. In fact, in terms of solitary confinement specifically, people in segregation for a long period of time will start to exhibit the very problems that you're trying to prevent. It can create aggression, depression, suicidal ideation, a range of mental health issues that may not have been there previously, or it can exacerbate pre-existing ones.
So if it doesn't work, why has the system evolved the way it has? Is it an issue of lack of resources so solitary confinement is overused?
Part of it is resources. Part of it is who has jurisdiction over the provision of mental health services and how to arrange for those services to be delivered to people under federal sentence. One of the big issues that came up in the Ashley Smith case is how to move people into secure hospital settings where they can be treated for problematic behaviours that are then understood as symptomatic of a mental illness. In a hospital setting, you're using treatment interventions. You're not using punitive restrictions that will escalate into various types of use of force – macing, using restraints, having masks over people's faces or having them in shackles and leg irons. There is international best practice on how to do this that is not being followed.
There has also been resistance to looking at community-based alternatives. We know, for example, that for those prone to self-injury, having somebody to sit there and talk to you and listen to you and just having access to non-judgmental conversations is really important.
The other side of this is that there's a tremendous toll on the staff that have to work in those units. There is very little training given to people who work in maximum-security segregation units. Investing in the HR side of things is difficult to do. We are in an era of fiscal restraint, and we have punitive sensibilities – you get what you deserve.
And it seems that being tough on crime is a popular political stance.
Taking a hard line on crime is politically popular, but it's very short-sighted. Parole is an excellent example of this. In Canada, we have a determinate sentencing structure, which means we send people to prison for a specific period of time. Except for life sentences, all sentences have an expiry date. Every sentence ends, which de facto means that these individuals will return to the community. The question is how would you like that person to be returned? Would you like them to come back angrier and more damaged? Or would you like them to come back with a renewed sense of purpose and opportunities to take their lives in different directions?
The desire for punishment is very human. If you or someone you care about has been victimized, the desire for retribution is understandable, but it doesn't necessarily make good policy. Getting rid of or severely restricting parole options, for example, keeps people in prison longer. It's very expensive and releases them less prepared to cope with the things they're going to have to cope with – jobs, housing, transportation, child care, family reunification. And if you magnify that and think about segregation, do you really want to release someone to the street from solitary confinement?
Is there any hope for improvement? What can be done?
We see the sensational cases like Ashley Smith, and we ask how, in a modern democracy where we see ourselves as law-abiding and humane, could that happen? There are lots of community advocates accomplished at dealing with mental health issues and with chronic self-injury. Bringing some of that expertise into the prison system is an important thing, but it is equally important to limit the use of custody and provide better support for individuals in the community. Prevention is preferable, and that can be achieved by ensuring that proper social supports and resources are accessible to people in need, especially for people struggling with mental health issues or addictions.
There are also some basic standards about what is humane treatment. We need to clarify the threshold of what constitutes excessive punishment. We have rules that limit the amount of time someone is in segregation. We have rules about doing reviews. But it's all done in-house. Where is the oversight? You've got corrections policing itself. You've got bodies like the correctional investigator, who has for years done special reports around deaths in federal custody and segregation and mental health, and has made a series of very thoughtful recommendations – but they don't get implemented. In some cases, it's lack of political will. Sometimes it's jurisdictional problems. Sometimes it's resource constraint. Sometimes it's myopic thinking.
I don't fault the people who work directly in institutions. Both people in custody and people who work in institutions want safe and secure spaces, but I don't think segregation is a vehicle for doing that. It's a short-term solution to an immediate and often preventable problem. And sometimes it exemplifies and demonstrates the failures in the system. This was stunningly obvious in Ashley Smith's case, where you saw the woman being transferred across the country from place to place and the same things happening over and over again and escalating and escalating. There's a pattern here, and somebody needs to be looking at the patterns holistically and at the prisoner as an individual, asking, what does she need right now? What will she need tomorrow and the next day? How do we create a holistic plan to move her forward as opposed to just trying to prevent the next incident of self-injury? It's more of an individual than an event-based approach that is useful.
For me, it's about identifying those systemic barriers to change. We sometimes talk about more law, more policy, more regulation. We actually don't need that. We've got tons of that. We need cultural shifts in how we think of these things, strong enforcement mechanisms, a respect for the culture of law and the limits that laws present, and more holistic approaches.
Why is change so hard?
Prisoners are out of sight, out of mind and often vilified. Prison walls are more than metaphorical. It is quite difficult for people to get inside to learn about what is going on. There's very little transparency and accountability for the decision-making that occurs inside. And there's no significant judicial oversight other than the office of the correctional investigator, and there's no requirement that corrections actually follow the recommendations of the correctional investigator – or of a coroner's inquest or an inquiry. Judges' rulings must be honoured and inquest recommendations are acknowledged, but when they then filter down into daily practices, little real substantive changes in living conditions inside occur. And prisoners do not have a tendency to complain. They don't always know their rights. Even if they do, they think the exercising of their rights is futile because people who are adjudicating their grievances are in the very intuitions they're grieving.
It's a perfect storm in a way, and it's an unsympathetic population of people. Few will take up their cause, but it's a barometer on our civility. Yes, when you violate a law and you harm somebody, you deserve a consequence. But what ought that consequence look like? And how do we make punishment, especially in its extreme forms, productive as opposed to inhumane?