Locating the decision-making power in an independent adjudicator would also provide a trigger absent under the existing procedures. Segregation Review Board discussions were often unfocussed and shapeless, particularly in cases of long-term segregation, where the very existence of a lengthy segregation almost fatalistically provided the evidence of its future inevitability. In many cases the decision to maintain segregation emerged not as a decision but as a fait accompli. In other cases, prisoners were left with vague promises that the institution would "try to do something" -- to overcome the resistance of other institutions to accepting a prisoner; to ensure that a progress summary required for a transfer application was completed before the next review; to see that the institutional preventive security officer visited the prisoner to try to resolve problems of incompatibility. In these and myriad other situations, the prisoner was, in fact, "sloughed off." Under the Model Segregation Code, the independent adjudicator at Segregation Review Board hearings would have both the legal authority and the obligation to "do something."

The second feature of the Model Segregation Code that would have made a difference to Mr. Oag’s case is the ninety-day limitation I proposed on the overall duration of segregation. Operationally, this would have meant that Kent Institution had no more than ninety days from the time Mr. Oag was first segregated to find an alternative placement for him. This would have created some urgency in presenting his case for transfer to another institution, and it would have put the decision about transferring Mr. Oag into a framework in which the "least restrictive alternative" was recognized as a legal imperative, not seen as an administrative option. In the absence of both time constraints on the duration of administrative segregation and the other protections contained in the Model Segregation Code, Donnie Oag finally left Kent Institution on statutory release on February 8, 1997, straight from his cell in segregation, having spent the last 1,000 days of his sentence in a "prison within a prison."

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