The British Columbia Civil Liberties Association (BCCLA) and the John Howard Society have launched a potentially ground-breaking campaign and lawsuit alleging that the laws governing solitary confinement in federal prisons and their application breach fundamental human rights and are thereby unconstitutional. The lawsuit could have a large impact on prison practices across Canada.

The lawsuit only concerns federal prisons, which have been more widely researched than provincial prisons. Solitary confinement is also used in provincial prisons, which Reasonable Doubt discussed here.

I spoke with Julia Payson, executive director for the B.C. branch of the John Howard Society. Payson explained that solitary confinement involves isolating a prisoner to a single cell for typically 23 hours per day. The prisoner has limited contact with prison workers, other prisoners, and rehabilitative programs; it approaches complete isolation.

Advocates who are critical of solitary confinement were hopeful that recent investigations—like those from the United Nations, the Arbour report, and the Ashley Smith inquest—would lead to fair and meaningful changes. That did not happen, which effectively forced the John Howard Society’s hand in launching the lawsuit.

The lawsuit alleges that solitary confinement as legislated and practiced in federal prisons amounts to cruel and unusual punishment and infringes fundamental rights, like the right to life, liberty, and security of the person and the right to equal treatment.

Health risks and torture

One in four prisoners spends some time in solitary confinement. Male prisoners who spend time in solitary confinement are admitted on average 1.7 times per year with each stay lasting 35 days; let those statistics sink in.

Payson recently gave an interview to the Almanac radio program on CBC. A former inmate named Peter called in and told her that a lot had changed for him since he was in prison “but solitary confinement will never leave me”. It’s a common story.

Numerous studies have documented how solitary confinement causes injuries. Solitary confinement can worsen already existing mental illnesses and create mental illness where there was none before. People suffer, amongst other things, hallucinations, anxiety, loss of impulse control, severe depression, heart palpitations, and reduced brain function. In many cases, the damage is irreversible.

Solitary confinement can kill. Eddie Snowshoe was kept against his will in solitary confinement in an Edmonton maximum-security prison for 162 days. His mental health deteriorated until after several failed attempts he finally took his own life. Nearly half of prison suicides happen in segregation.

The United Nations Special Rapporteur on Torture and the Committee Against Torture concluded that prolonged (over 15 days) solitary confinement can amount to torture.

Discrimination

The lawsuit alleges that solitary confinement legislation and how it is practiced amounts to discrimination against indigenous people and people who have mental health problems.

Indigenous people are more likely to spend time in prison and indigenous prisoners are more likely than other prisoners to be held in solitary confinement. Indigenous people make up 23 percent of the prison population but 31 percent of segregation admissions. Indigenous inmates also stay in solitary confinement on average five days longer than non-indigenous inmates.

Payson says that solitary confinement is increasingly being used to warehouse difficult offenders, many of whom have mental illnesses. A recent three-year review of federal inmate suicides recommended a prohibition on long-term segregation of the seriously mentally ill, self-injurious, or suicidal inmates. But the practice continues.

Unlike Canada, the United States has started moving away from solitary confinement for mentally ill prisoners; for example, New York and Colorado banned segregation for the seriously mentally ill.

Solitary confinement likely has a greater impact on mentally ill prisoners because they are more vulnerable to psychological injuries. In many ways, segregating mentally ill inmates is similar to forcing someone with a spine injury to do manual labour as a part of their prison sentence.

Checks and balances?

It is common sense to require checks and balances for people who hold power over vulnerable populations. Prisons control virtually every part of a prisoner’s life, putting prisoners in a particularly vulnerable situation.

In order to understand the checks and balances for solitary confinement it is important to appreciate that there are two primary types: 1) disciplinary segregation, and 2) administrative segregation.

Disciplinary segregation makes up a small percentage of solitary confinement admissions, just 2.2 percent.

In order for a prison to put someone in disciplinary segregation, the inmate must be found guilty of an offence beyond a reasonable doubt (a high standard). The prison must provide the inmate with reasonable access to a lawyer. An independent decision maker decides whether segregation is appropriate. The maximum stay is 30 days or 45 days if multiple terms are served consecutively.

Administrative segregation is quite different than disciplinary segregation. The prison has a wide, general guideline for when they may use segregation: when the inmate attempted or intends to act in a manner that threatens the safety of the prison or any person. There are no time limits for confinement. The prison does not need to meet the high burden of beyond a reasonable doubt. The prison does not need to give the inmate access to a lawyer.

What are the checks and balances for administrative segregation? Payson says that inmates can mount a challenge to solitary confinement through a judicial review. Judicial review can be a complicated legal process for a lawyer, let alone a layperson. The review process is started after someone has been segregated.

The reality is, says Payson, most vulnerable members of the prison population will not self-advocate and it is unreasonable to expect them to.

Imagine someone with mental illness challenging his solitary confinement. He is expected to mount a complicated legal challenge when he has a single hour per day outside of his cell (which is also to shower, go outside, et cetera); he is likely suffering further from the conditions of segregation; and, he likely does not have money to hire a lawyer and does not have access to legal aid.

Is it any wonder that solitary confinement is over-used?

There are obviously other options to solitary confinement, says Payson.

"Solitary confinement does not work…prisoners generally leave solitary confinement less healthy and less able to socialize with other inmates. Solitary confinement should be a last resort short-term solution only and never in cases of acute mental illness…the solution is rehabilitation rather than isolation and those working within the federal prison system know what can be done to change this practice."

For more information on the lawsuit, visit the BCCLA Justice Not Torture website.