If solitary confinement is torture, why are we still doing it?

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In 1973, Jack McCann escaped from a federal prison in British Columbia. Of all the places he could go, he headed straight to the Vancouver Sun. The reason? Jack McCann had been held in solitary confinement for 754 days at that point. He sought to publicize his case and the circumstances faced by others in solitary confinement in the federal penitentiary system in Canada.

The end result of his efforts, two years later, was a landmark case argued in front of the Federal Court of Canada. The plaintiffs, including Jack McCann, won an admission by Justice D.V. Heald that solitary confinement, as it had been used in these cases, constituted "cruel and unusual punishment." Unfortunately, solitary confinement is still used in federal prisons today, often as a stop-gap to deal with mentally ill offenders. This practice harms the individuals involved, and also highlights a fundamental flaw in our conceptions of, and solutions to, crime and punishment in this country.

It must be said that the use of solitary confinement today is somewhat different than in 1975. The conditions in the cell itself have improved, and the use of administrative segregation is subject to greater oversight, stopping short of independent adjudication. The amount of continuous time an offender can be placed in administrative segregation has been reduced. Today, a person is generally placed in administrative segregation for less than 90 days at a time. However, currently about 34 per cent of those involuntarily placed in segregation remain there for longer than 90 days. Equally important, an offender can be put in segregation multiple times, almost back to back.

The harmful effect of solitary confinement on mental health is widely known. This has been acknowledged by the United Nations, in the Istanbul Statement, and even by the Correctional Service of Canada's own taskforce. It has been made clear, by the UN and others, that depending on the circumstances, the use of solitary confinement can violate international agreements against the use of torture. These groups especially warn against the use of solitary confinement on children under age 18, or those with mental illness. And yet, solitary confinement is still regularly used in federal prisons in Canada. Even more shocking, a large portion of those put into administrative segregation, as it's now called, are experiencing mental illness.

According to Howard Sapers, the Correctional Investigator for the Federal Prison System, the number of offenders in the federal prison system dealing with mental illness has doubled in the past decade.

Today, in Canada, what we are seeing, institutionally, is the use of administrative segregation as a stop-gap to manage offenders with mental illness. After the push in the 1980s and 1990s to de-institutionalize mental healthcare, community-based mental health services were not adequately increased to handle the load. As a result, we have seen increasing numbers of homeless persons with mental health concerns and a dramatic increase in persons with mental illness in our penitentiary system.

Worryingly, as the number of prisoners with mental health concerns has grown, the capacity of mental health services in prisons hasn't changed. The need for mental health services is extremely high. Currently, at admission, 10-12 per cent of offenders have already been diagnosed with a major mood or psychotic disorder. When we look at undiagnosed mental illness, substance abuse or concurrent disorders -- meaning people who are dealing with both substance abuse and mental illness, according to Sapers, "we could be talking about 70-80 per cent of the [prison] population".

In the face of this great need, the shortage of mental health services is acute. As Sapers puts it, "We have five regional psychiatric hospitals, in fact, but we have on any given day more than twice that number of offenders who are in an acute phase of their illness, who could benefit therapeutically from being in one of those beds." Many offenders never get past an initial assessment, as there isn't enough capacity to provide continuing care.

Without proper care, the combination of mental illness and incarceration can be devastating. Recently, we have seen a serious increase in self harm, suicides and deaths in the federal prisons. In 2009 alone, according to Mr. Sapers, the number of non-natural deaths while in custody increased by 70 per cent.

More often, offenders with mental health concerns end up in administrative segregation. Often, the chain of events is devastatingly simple. A not atypical story was the 2007 case of Ashley Smith. Ms. Smith was a Ontario teenager who committed suicide while in administrative segregation. She had spent a year in federal custody without ever receiving a comprehensive psychological assessment, despite a documented history of mental health concerns. (Her initial crime had been throwing apples at a mailman). While in custody she presented, or was considered to present, continuing disciplinary problems. This resulted in escalating sentences and administrative segregation. With a shortage of staff trained to identify and manage mental health related concerns, these types of behaviors are often classified simply as disciplinary concerns, resulting in further punishment.

When we get down to the crux of this issue with mental health and segregation, the problem begins with how we -- as a society -- conceptualize crime and punishment. Many times, we view criminals as singular, rational actors. We ignore the personal and social context of their actions. How can we reduce crime, when we don't consider the causes of it? How can we punish a behavior, if we don't understand where it's coming from?

People who commit crimes often are coming from a context of drug abuse, poverty and/or mental illness. According to Dr. Ivan Zinger, the Executive Director and General Counsel to the Correctional Investigator, "In terms of addiction issues, about four out of five offenders now arrive at a federal institution with a serious substance abuse problem, with one out of two having committed their crime under the influence of drugs, alcohol or other intoxicants." Considering the abuses done to First Nations communities, it is not surprising that they are highly over-represented -- as a group -- in prisons. When we consider the context, we can see that fear and punishment are not effective deterrents to crime, as they do not address these underlying social concerns. Punishment, as a concept, is a band-aid solution to a much deeper problem.

A better approach is rehabilitation -- as Sapers sees it, "The purpose of corrections is to prepare people for community release, for re-integration, to live safely within the community." We should spend our tax dollars on programs that actively work on rehabilitating offenders, addressing mental health and substance abuse, so that they won't re-offend upon release.

It can be difficult, with "hot-button" topics like crime, to take a step back and reflect on the issue from a dispassionate point of view. Instead of working to service our grief and desires for revenge, we should shape our criminal justice system in a way that best services our need to have a safe and humane society, and the physical and mental health needs of offenders.

Currently, we face an acute need in our federal prison for mental health care. Administrative segregation causes undue harm to offenders, especially those with mental illness, with no greater benefit or purpose. As highlighted by the Correctional Investigator, mental health and the use of administrative segregation should be our top priority when it comes to prison reform. Without improvement in this area, we harm not only the individuals in need, but also society, when we release these individuals without the benefit of additional care and treatment, at risk to offend again.

Carrie Baptist is the former news director for CiTR News, 101.9 FM in Vancouver. She works as a social worker in Vancouver's Downtown Eastside.

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