SECTOR 4:
CHAPTER 1
ADMINISTRATIVE SEGREGATION -- THE LITMUS TEST OF LEGITIMACY

Lessons from History

Many elements of the tension between rhetoric and reality in the contemporary prison can be found in the regime of administrative segregation. True to the rhetoric of corrections, the very term "administrative segregation" provides apparently benign semantic camouflage for the most intensive form of imprisonment. In Prisoners of Isolation, I charted the history of solitary confinement in Canada and described how its origins, like those of the penitentiary itself, lay not in the practice of torture and the abuse of state power but rather in a well-intentioned and reform-spirited reaction against such practices. John Howard, the pre-eminent prison reformer of his generation, was insistent in his blueprint for radical reform of eighteenth-century imprisonment that the legitimacy of punishment, in the eyes of both the public and the offender, was dependent upon its observance of the strictest standards of justice and morality. In the minds of early reformers, the abuses, cruelties and corrupt administrative practices within the prison system were explained by the absence of rules and the lack of supervision by an outside authority; thus, their proposals for reform had two parts. The first was the imposition of an authority of rules to be applied to the keepers no less than the kept. The second was the determination to ensure that these rules were enforced through the superintendency of magistrates and by the democratic overview of the general public: "In place of the unwritten, customary, and corrupt division of power between criminals and custodians, the reformers proposed to subject both to the disciplines of a formal code enforced from the outside" (Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1705-1850 [New York: Pantheon, 1978]at 77).

The authority of rules proposed by the eighteenth-century reformers had a dual purpose:

They were an enumeration of the inmates’ deprivations, but also a charter of their rights. They bound both sides of the institutional encounter in obedience to an impartial code enforced from outside. As such, they reconciled the interests of the state, the custodians, and the prisoners alike. (Ignatieff, A Just Measure at 78)

The regime of solitary confinement was the centrepiece of this new model of the prison; it was designed to be a punishment that was severe but humane, rational and ultimately transformative. As described in an account written in 1792:

To be extracted from a world where he has endeavoured to confound the order of society, to be buried in a solitude where he has no companion but reflection, no counsel but thought, the offender will find the severest punishment he can receive. The sudden change of scene that he experiences, the window which admits but a few rays of light, the midnight silence which surrounds him, all inspire him with a degree of horror which he never felt before. The impression is greatly heightened by his being obliged to think. No intoxicating cup benumbs his senses, no tumultuous revel dissipates his mind. Left alone and feelingly alive to the strings of remorse, he revolves on his present situation and connects it with that train of events which has banished him from society and placed him there. (John Brewster, On the Prevention of Crimes [1792] at 27)

Such was the original theory of the penitentiary: "In the silence of their cells, superintended by authority too systematic to be evaded, too rational to be resisted, prisoners would surrender to the lash of remorse" (Ignatieff, A Just Measure at 78). It was this theory that was embodied in Canada’s first Penitentiary Act in 1834; it was this theory that Kingston Penitentiary was intended to translate into practice.

As I have described in Sector 1 of this book, the hope that the opening of Kingston Penitentiary would usher in a new era in the treatment of prisoners, with reformation and moral re-education replacing the spectacle of terror, was never realized. The means that Kingston’s first warden chose to enforce discipline were characterized by the 1848 Brown Commission as "barbarous and inhumane." In its recommendations for the future management of Kingston Penitentiary, the Commission addressed the principle by which prison discipline was to be administered:

All convicts should as far as possible be placed on a footing of perfect equality; each should know what he has to expect, and his rights and obligations should be strictly defined. If he breaks the prison rules, he should also have the quantum of punishment to which he becomes subject. He should not witness the spectacle of offences similar in enormity treated with different degrees of severity, unless in cases of frequent repetition. One of the most important lessons to be impressed on the convict’s mind is the justice of his sentence, and the impartiality with which it is carried into execution. (cited in J.M. Beattie, Attitudes towards Crime and Punishment in Upper Canada 1830-1850: A Documentary Study [Toronto: University of Toronto, Centre of Criminology, 1977] at 152)

The Brown Commission also addressed the principle of outside inspection. Although the Penitentiary Act of 1834 had established a local board of inspectors with general jurisdiction to superintend the administration of Kingston, the Commission found that this board had proved inadequate to the task of controlling the abuses and excesses of the warden. Having "pointed out how likely the unrestricted and continued exercise of arbitrary power is to degenerate into apathy or tyranny," the Commission recommended the appointment of national inspectors directly responsible to the government, with expanded authority to make rules and regulations and clearly defined duties to visit and inquire into the management of the penitentiary.

In Prisoners of Isolation, I commented on the parallels between the ideas of John Howard and the recommendations of the Brown Commission:

What was to be sought in the carrying out of discipline within the prison walls, if it was to operate as a catalyst for moral transformation, was the re-establishment of the moral legitimacy of punishment. To Howard and the Brown Commission, this meant that the jailer, with his virtually unfettered discretion, had to be rendered accountable to the authority of rules and to outside supervision and that the punishment must meet the strictest standards of justice. To their European counterparts such as Decazes, commenting on French penal discipline, it meant that "the law must follow the convicted man into the prison where it has sent him." (Jackson, Prisoners of Isolation at 31)

In this and the following chapters, I will make the case that rendering the jailer accountable to a legally binding authority of rules and establishing an effective process of outside supervision are as yet unfulfilled preconditions to ensure that the practice of administrative segregation adheres to fundamental principles of justice.

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