Tag: prison reform

Court’s segregation decision

Halifax-based lawyer Hanna Garson. (photo from Hanna Garson)

In 2015, the B.C. Civil Liberties Association and the John Howard Society launched a legal challenge to the federal government’s laws that allow administrative segregation – a form of solitary confinement – in prisons, calling it a cruel and inhumane punishment that can lead isolated prisoners to harm and even kill themselves. They won their case in the B.C. Supreme Court in January 2018, a decision that was appealed by the government the next month. Last week, the B.C. Court of Appeal affirmed the unconstitutionality of provisions that allow indefinite and prolonged solitary confinement of prisoners.

In the January 2018 decision, the B.C. Supreme Court gave the federal government 12 months to pass new laws. In January 2019, the court gave the government an extension to April, but said certain stipulations had to come into effect immediately. Correctional Service Canada was ordered to take several steps, including giving prisoners in segregation more time outside, requiring daily visits from healthcare professionals, allowing inmates legal counsel in hearings related to solitary confinement, and changing the authorization system regarding the placement of an inmate in segregation for more than 15 days.

The federal government was given another extension after the April deadline, to the end of June. Then, on June 24, the B.C. Court of Appeal came out with its decision on the matter – rejecting the government’s appeal.

“This particular case is very interesting, as there are no actual individual complainants,” said Jewish community member Hanna Garson, a lawyer based in Halifax whose focus is ensuring that everyone is treated fairly by the justice system. “So, the court [was] being asked to decide whether or not the written laws themselves breach provisions of the Charter of Rights and Freedoms in Canada.”

According to Garson, sections of the Charter are indeed being breached when it comes to administrative segregation, especially as it comes with no time limit. “People are being put into segregation not knowing when, if ever, they’re going to get out,” she told the Independent. “That really plays on the mind.”

Noting that many people have mental illness or struggle with mental health before they are incarcerated, which “may have led to their negative interaction with the law,” she said, “That population, in particular, is very damaged by periods of segregation.”

The appeal court’s reasons for judgment, written by Justice Gregory Fitch, stated that the Corrections and Conditional Release Act violated Section 7 of the Charter, which protects an individual’s right to life, liberty and security of the person. The court “found that the harm caused by prolonged confinement in administrative segregation undermines the maintenance of institutional security, as well as the ultimate goal of achieving public protection by fostering the rehabilitation of offenders and their successful reintegration into the community.” It also “found that prolonged confinement in administrative segregation is not necessary to achieve the safety or security objectives that trigger its use.”

The judgment noted “that administrative segregation has a small, but significant, disproportionate effect on indigenous men and an even more significant effect on indigenous women” and that the “impugned laws” violated Section 15 of the Charter “to the extent that they authorize and effect a procedure that results in discrimination against aboriginal inmates.”

Section 15 states that, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Another issue, said Garson – who, in addition to being part of the firm Planetta Hughes LLP, is chair of the East Coast Prison Justice Society and is on the board of the Elizabeth Fry Society Mainland Nova Scotia – is that, while prisoners being placed in segregation have access to review boards, administrative segregation review boards consist of the same prison administration that placed them there. “So, it’s not an independent review and so, basically, the people who initially made the decision then question their own decision, which doesn’t necessarily secure a fair assessment of whether or not a person really needs to be segregated,” she said.

While legal counsel is permitted at these reviews, it is not provided in many provinces and few prisoners can afford representation or are not in a mental state of being able to request it, she said. “If you’re running a facility with hundreds of people who may be violent, I can understand a time-out for a moment to see what else needs to be done,” said Garson. “But, there needs to be a time limit and other solutions.

“Long-term, serious mental health treatments take far more expensive staff and thorough training. Are these better solutions though? Without a doubt, yes. Unfortunately, a lot of the constraints are budgetary and this is something that, oftentimes, courts are hesitant to rule on. But, for example, the court did say that, as it says in Section 15 [of the Charter], everyone has a right to be equal before the law and receive equal treatment of the law. So, the court does an assessment of whether or not people are being discriminated against by these laws.”

After hearing testimony and expert opinions, Garson said, “the court decided that both aboriginal people and people suffering from mental illness are segregated far more often … and that the impact on them is far more negative. But, it went further, ordering incarceration facilities to put in place better solutions – better programming that does not involve segregation.

“Usually, the court is hesitant to make decisions that would force the government to put more funding into something. But, it did in this decision, which is, in my opinion, really wonderful and a great precedent. This case is really groundbreaking and, to a certain extent, it was a wonderful thing that it was appealed.”

The B.C. Supreme Court said, “basically, we had to come up with new laws. But then, they suspended it for a year, as the government needs time to pass new bills and stuff like that. In the meantime, the attorney general appealed, because they don’t think it’s fair,” she said.

The Constitution of Canada, which includes the Canadian Charter of Rights and Freedoms, is the supreme law in Canada, she explained. Section 52 (1) of the Constitution Act 1982 mandates that any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. The decision by the appeals court will become a binding precedent in all provinces, not only in British Columbia.

Garson emphasized that she is especially happy with the decision because it is one that has really considered the damage segregation does on the mental health of those being isolated and notes that, “if we really care about rehabilitation, then [segregation] makes no sense as a strategy, especially for those with mental illness.”

Because the court looked at the experiences of those who have been segregated and the decision will affect them, the system and society as a whole in the long-term, Garson said, “It’s more like a living document in that way, and it’s a very exciting case for this reason.”

As for where Jewish law falls on this matter, the organization T’ruah has been leading a campaign to abolish solitary confinement in the United States. In a 2014 report on the compliance of the United States with the United Nations Convention Against Torture, T’ruah notes, “The very first two chapters of our Torah teach us that every human being is created in the image of God, and that no human being should be alone. The practice of solitary confinement violates these principles and diminishes the divine image. It also violates one of the Torah’s central moral teachings, expressed in Leviticus 19:18, that one should ‘Love your neighbour as yourself.’ The rabbis explain that this is taught, so that no one can justify degrading treatment of a member of their community…. If you do thus, know that the person you have dishonoured was created in the image of God.”

The report argues that “Jewish tradition understands instinctively that humans are social creatures. In a story about a character who outlives his family, friends and study partners, the Talmud teaches, ‘Either companionship or death.’ Life alone is unbearable. Jewish law warns against excessive punishment, ‘lest your brother be degraded before your eyes.’ (Deuteronomy 25:3) Even a person who has committed a horrific crime must be regarded as a member of one’s own family and, therefore, deserving of dignity.”

T’ruah contends that Jewish criminal law seeks to inspire teshuvah (repentance) and that there are several principles that should hold in prisons:

“1. No matter his or her crime, the prisoner should be seen as our ‘brother or sister’ and treated with dignity.

“2. No human being should be alone for extended periods of time. Isolation diminishes the human being and can even be deadly.

“3. Prisons should seek to rehabilitate the prisoner and not simply to degrade him or her.

“4. A prisoner should have a fair trial before being placed in solitary confinement. Therefore, solitary confinement cannot be used for those in pre-trial detention.”

Rebeca Kuropatwa is a Winnipeg freelance writer.

World without prisons?

Prof. Liat Ben-Moshe teaches disability studies at the University of Toledo. (photo from Liat Ben-Moshe)

University of Toledo assistant professor Liat Ben-Moshe moved to the United States in 2002 to do her doctorate in disability studies at Syracuse University, as the field was not offered in Israel at the time.

Ben-Moshe describes the field as one “that looks at disability as an identity and a culture.”

“So,” she said, “we read things about mad culture – ‘mad’ as in ‘crazy’ – deaf culture and a variety of disability histories, disability laws and social movements related to disabilities … as well as representation [of] people with disabilities and disability, in general, in films and in literature.”

Ben-Moshe is a member of and has been a leading voice in the disability community. She works to educate anyone who will listen about disability rights, to change the outlook.

“We are not asking for charity,” said Ben-Moshe. “We are asking for what is rightfully ours, like an increase in disability stipends and things of that nature. At that time, there was also no kind of formulated disability law.” Now, there is, and there are both similarities and differences between such laws in Canada, the United States and Israel, she said, noting, “They are all rights-based laws, discrimination-based laws.”

As Ben-Moshe was developing her understanding of disability law and how society began looking differently at people with disability, she started seeing correlations between how people with disabilities were being treated in institutions and how prisoners were being treated.

Society has dismantled many large institutions for people with mental and intellectual disabilities. “People don’t really understand how massive these institutions were,” said Ben-Moshe. “Some of them housed 3,000 people with intellectual disabilities in the heyday.

“Closures of these facilities came out of a desire to really change the way that we understand what disability means and how to react to it on a social level,” she explained. “We don’t need to be segregated in order for the civility to be viable in our communities. And the reason I’m connecting it to the prison arena is because there has been – and, today, for sure – a vibrant, although quite small, social movement that advocates for the closure of prisons…. By that, I mean prison abolition.”

Ben-Moshe contends that people should not be locked away as punishment.

“It’s really a radical framework – to understand how we can react to each other differently and how we can respond to harm that’s done to us differently … without segregation, without locking people away,” she said. “When you take this [locking up] idea of out of sight, out of mind, [something] that only exacerbates the root of the harm, you can see a lot of connections between this [non-segregating] framework and the framework of deinstitutionalization.”

Just as some people thought that deinstitutionalization could not work, there are those who don’t believe that decarceration is achievable. But Ben-Moshe said we can learn from how deinstitutionalization took place in most American states and in Canada, and how well it has worked, in general.

“How do we learn from it, as a historical precedence?” she said. “A lot of my work is about bridging those two ideas – frameworks and social movements.”

Ben-Moshe mentioned the 128-page ebook called Are Prisons Obsolete? by Angela Davis (Penguin Random House, 2003). In it, says the description online, Davis argues that “American life is replete with abolition movements and, when they were engaged in these struggles, their chances of success seemed almost unthinkable. For generations of Americans, the abolition of slavery was sheerest illusion. Similarly, the entrenched system of racial segregation seemed to last forever, and generations lived in the midst of the practice, with few predicting its passage from custom…. Davis expertly argues how social movements transformed these social, political and cultural institutions, and made such practices untenable.”

There is no short answer to the question of how to abolish prisons. But, according to Ben-Moshe, the answer has to come from communities. The prison abolition movement in the United States, she said, is led by the black feminist movement and, in Canada, it is led by indigenous groups, as these communities are most impacted by the prison system.

Insofar as the movement’s success in both countries, Ben-Moshe said, “I’d say, definitely, there is, in Canada, a pretty vibrant prison abolition movement. As it is in the U.S., it’s pretty varied. Some of it does come from the indigenous perspective. For example, the idea of sentencing circles.

“In many indigenous communities, there has never been a prison. So, we don’t necessarily need to go back in time to see what it means to live in a world without a prison. We can talk to the indigenous people who have never bonded to this idea of prison. Not to romanticize it. I mean, harm has been done in those communities, but how did they deal with it? That’s definitely something that’s going on in Canada, as well.”

Ben-Moshe pointed to the somewhat new concept of using ankle bracelets, as opposed to imprisonment, as a misguided move. The way she sees it, by doing this, instead of reducing incarceration, the prison walls become endless.

“These are for-profit things that people who are incarcerated have to pay for,” said Ben-Moshe. “And what we see is that people who would have not even been incarcerated before now get ankle bracelets.”

In the same way that disability can’t exist in a place with no barriers, prisons can cease to exist if people are taught how to better work within society’s limits.

“If everyone spoke sign language, those who are deaf wouldn’t even be categorized as disabled, because they would just be a linguistic minority,” said Ben-Moshe. “Disability is not something in people. It’s something in the interaction between people and their environment.

“In disability studies, we talk about ‘ablism’ (able-ism), which is oppression that people with disabilities face. But, I also connect that to racism, sexism and other forms of oppression, to say that we’re always living simultaneous forms of privilege and oppression.”

Rebeca Kuropatwa is a Winnipeg freelance writer.