These are important questions. To answer them it is necessary to consider how the criminal-justice system outside the prison seeks to reconcile the tension between the exercise of coercive state power and the need to protect the individual against its abuse. Herbert Packer has argued that this reconciliation is sought through the interaction of two competing models of the criminal process,7 the due process model and the crime-control model. These two models represent separate value systems that compete for priority in the operation of the criminal process. The due process model emphasizes adherence to legal rules and reliance upon formal, adversarial, and reviewable adjudicative processes. It gives a high profile to the role of the lawyer in invoking the rules designed to limit state power and protect the rights of the accused. The crime-control model, by contrast, emphasizes speedy, informal resolution of cases and has its centre of gravity in the early administrative fact-finding stages. Accordingly, it gives a high profile to the role of the police and their ability to investigate crime with minimal interference. One model sees its media mirror image in 'Perry Mason,' the other in 'Hill Street Blues.'

The thrust of much of recent criminological research is that the criminal-justice system in operation in Canada and the United States leans toward the crime-control model, particularly in the lower criminal courts where the great majority of cases are resolved.8 The typical case is disposed of by a guilty plea negotiated between defence counsel and the prosecutor or the police or both. Defence counsel do not typically see themselves as defenders of liberty and protectors of freedom, but as professionals involved in what Richard Ericson calls the 'ordering of justice.' They usually have 'one-shot' relationships with their clients, and recurring relationships with other professionals in the system -prosecutors, detectives, and probation officers. Because of overburdened court dockets and underfinanced legal aid tariffs, there are strong institutional pressures to process rather than litigate cases and professional pressures to compromise and reach agreement on what is a just and justifable outcome.9 The accused, who is usually dependent on his lawyer for information about the range of options and possibilities for compromise, may have good reason to agree to a guilty plea rather than go to trial. Doing so may mean spending less time awaiting trial in the appalling conditions that exist in most jails; it may result in a less severe sentence than would otherwise be imposed if he went to trial and was found guilty.

The Segregation Code, in its reliance on specific rules and a hearing process that gives the prisoner the right to counsel and the right to challenge the institution's case, accords with the due process model of criminal justice. Will the right to a hearing become in practice little more than the negotiated acceptance of segregation under the guiding hand of counsel in the service of the crime-control model? I believe there is good reason to think not. While there may be some cases in which prisoners do not contest the factual allegations used by the prison administration to justify segregation (for example, where a prisoner is caught in the act of trying to escape), judging by my experiences with prisoners in the British Columbia Penitentiary and Kent, it seems likely that the institution's allegations will be challenged in a high percentage of cases. But apart from any dispute about the facts, there still remains the issue of whether the facts justify segregation under the criteria set out in the code, and if so how long such segregation should last. Prisoners in maximum security, faced with the severest sanction the prison administration can impose, will not submit to its imposition without protest. There are no compelling reasons for the prisoner to waive his right to protest. He will already be in segregation at the time of his hearing before the independent chairperson. There is nothing to be gained by willingly submitting to further segregation. Prisoners, who are more knowledgeable about the nature of the prison decision-making process than the typical accused in the criminal process, will not easily defer to a lawyer's view of a just and justifiable result.

It will be crucial to .the successful implementation of the Segregation Code that lawyers respect their clients' assessments of the severity of the segregation sanction and the legitimacy of their wish to challenge its imposition. Because the code seeks to change the rules under which the prison has traditionally operated, it is vital that the prison administration be compelled to justify its actions within the context of the new rules. The systematic questioning of the administration's authority is fundamental to the operation of the code as a control on the abuse of that authority. Such questioning is most likely to come from the young lawyers and law students upon whom the weight of prison legal work is likely to fall. That is not to say that it should be their burden alone.

In this analysis I have been concerned with a single cluster of issues surrounding the penitentiary's ultimate power. Many other issues require a similar analysis. The Segregation Code is but one part of a prisoners' rights code that is necessary to bring corrections into the mainstream of the criminal-justice system. For this to happen in the area of segregation, or in any other area, it will be necessary for the legal profession as well as the courts to rise to the challenge that is thrown up to them. Let us be quite clear about this. Prison work is neither glamorous nor profitable. To ensure that the role of lawyers becomes entrenched in the administration of prison justice, law schools, law societies, and the legal aid authorities must understand both the history of the challenge and the implications of its rejection. John Howard and his Canadian successors understood clearly that only through rules and the vigilance of outside inspection would penitentiaries fulfil their purpose of legitimizing the pain of imprisonment. The stark record -and the evidence of Jack McCann and his brothers in solitary is as critical to our understanding of present carceral practices as John Howard's writings are to those of the eighteenth century -leads ineluctably to the conclusion that the rules themselves must have the legitimacy of law, and the inspection process must have the commitment of the legal profession and the courts. Inscribed in stone over the entrance to the law school at which I teach are the words 'Let Justice Be Done Though the Heavens Fall.' Doing time in one of Canada's maximum- security penitentiaries is about as far removed from the heavens as can be conceived. It is, as the parliamentary subcommittee condemned it, 'the most individually destructive, psychologically crippling and socially alien- ating experience that could conceivably exist within the borders of the country.'10 If Canadians are prepared to take the motto outside the law school seriously, and if this book has done its job of demonstrating the motto's critical relevance inside the prison walls, we might begin to stop the crippling and destruction of prisoners' lives. The screams in the night might begin to recede from our collective memory.

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