Simcha Walfish
2nd year, McGill University, Faculty of Law
April 15, 2018
Image: a segregation cell from the Annual Report of the Office of the Correctional Investigator 2016-2017.
A substantial body of research shows that the practice of solitary confinement – or, “administrative segregation,” as it is also known – can have a devastating impact on the senses and mental health. According to Sharon Shalev’s research, effects include perceptual distortions, ranging from hypersensitivity to hallucinations, specifically
− hypersensitivity to noises and smells;
− distortions in time and space;
− depersonalization, detachment from reality;
− hallucinations affecting all five senses (for example, hallucinations of objects or people appearing in the cell, or hearing voices);
In view of these debilitating effects, it might be wondered why the practice of solitary confinement continues to figure as a foundational component of the system of corrections in so many jurisdictions, including Canada, Britain and the United States. This probe will explore how the current rationale for the practice, which centres on maintaining institutional security, compares with the original rationale for the practice, dating back to the late eighteenth century, which had more to do with reforming the prisoner’s soul. As we shall see, there is a profound discrepancy between the purportedly humanitarian impulse at the origin of the practice and the inhumane effects it is seen as exerting on the prisoner by today’s standards. In light of this discrepancy, it is argued by way of conclusion that the practice must be seriously questioned and rethought.
Today’s Paradigm: Institutional Security
There is a growing movement against indefinite solitary confinement in Canada. Superior Courts in British Columbia and Ontario have recently declared the current federal legislation unconstitutional. A bill before Parliament would limit its use.
The only justifications we hear today is that solitary confinement is necessary for institutional security and the safety of inmates and staff. For example, in the Ontario case, brought by the Canadian Civil Liberties Association, the Government argued that “isolating inmates in administrative segregation [is] an appropriate last resort for managing a difficult and dangerous prison population.” In the case brought by the British Columbia Civil Liberties Association, the government argued that
the psychological effects of segregation on inmates remain the subject of ongoing and vigorous scientific debate. The Government submits that maintaining institutional security and inmate and staff safety is a complicated task, and that administrative segregation is a necessary tool when no other reasonable alternatives exist.
In this paradigm, the harmful effects of solitary confinement are unavoidable. But the supposed necessity for solitary does not explain the conditions. Some cells are as small as 4.48 square metres. They are sparse. Some are windowless. Some do not permit the inmate to control the lights. One inmate, T.N., describes going for “days without the light being turned on” and “if the window on the door was shut, I could not see anything. Everything was dark. All I had were the thoughts inside my mind. The feeling of hopelessness was all-consuming.”
While the experience of solitary confinement is often described as one of sensory deprivation, those who experience it describe it more as a cocktail of deprivation and overload. Donald Best, on his 63 days in confinement:
In the weeks to follow, I soon learned what the administrator meant by noisy: Moans, screams, sobbing, prisoners ranting to nobody – the abandoned are seldom quiet. When my feeding slot was open, I saw prisoners eat their own feces, bang their heads until bloody and fall into a zombie-like state that passes for sleep with the lights on 24 hours a day.
Best was placed in confinement for his own safety. He is a former Toronto Police sergeant. Beyond institutional safety, this is perhaps the most common argument for the continued use of segregation: inmates request to be segregated. As Correctional Investigator Ivan Zinger writes in his most recent report,
The distinction, in the law, between “involuntary” and “voluntary” segregation (protective custody) has always been dubious and is increasingly indefensible. Assuming risks and threats to personal safety were removed, no reasonable person would “voluntarily” agree to be housed in the most restrictive and depriving form of custody the State can legally impose.
The arguments for solitary confinement today are not arguments for inventing a system of segregation but that discontinuing it would be disastrous. For these arguments, the sensory deprivation and overload are unfortunate side effects of a necessary practice.
The Origins of Solitary Confinement: A Spirit of Reform
“We have a plan, the most humane, yet the most terrible and rigid, yet smiling with mercy; calculated to seminate piety, and restore That order and peace, which the world cannot otherwise bestow. The most wicked may turn from the evil of their ways; but we must use the means, perhaps the only means, to cover them under the lenient wings of benignity, and screen the most distressed of the human species, from the shafts of the sorest affliction, even temporal and eternal death” Jonas Hanway in his 1776 treatise, Solitude in Imprisonment, with Proper Profitable Labour and a Spare Diet, the Most Humane and Effectual Means of Bringing Malefactors, Who Have Forfeited Their Lives, or Are Subject to Transportation, to a Right Sense of Their Condition; with Proposals for Salutary Prevention: and how to Qualify Offenders and Criminals for Happiness in both Worlds, and to Preserve the People, in the Enjoyment of the Genuine Fruits of Liberty, and Freedom from Violence
When we delve into the origins of the practice of solitary confinement we find that it was bound up with the birth of the modern prison itself. In his book Prisoners of Isolation: Solitary Confinement in Canada, UBC law professor Michael Jackson argues that the common origins of the penitentiary and solitary confinement “lie not in the practice of torture and the abuse of state power, but rather in a reform-spirited reaction against such practices. The period between 1775 and 1850 saw dramatic changes in Europe and North America in the state’s conception of its right to punish offenders, and the legacy of that period still infuses much of our thinking about punishment and penal institutions.” For Jackson, “it is a paradox of history that a central feature of that correctional strategy – solitary confinement – has come to epitomize the most disturbing abuse of power that exists in the Canadian penitentiary today.”
Until the late 18th century, imprisonment was not the normal punishment for most crimes in England. In 1779, the British Parliament passed the Penitentiary Act. This came at a crucial moment in English penal history. At almost the same time, the American Revolutionary War suddenly stopped the transportation of convicts to penal colonies, transforming imprisonment from a rare punishment to a sentence of first resort for minor property crimes. In the 1780s, a moral panic about a “crime wave” swept England along with a religious movement that interpreted the situation “in apocalyptic terms as evidence of a breakdown in the moral discipline among the poor.”
In this period, in Britain and the United States, solitary confinement gained currency as a form of punishment more humane than the death penalty and as a tool for rehabilitating prisoners. In this model, silence and solitude were key components of a strategy to bring prisoners to reform themselves. In his 1792 treatise, On the Prevention of Crimes and on the Advantages of Solitary Imprisonment, John Brewster, Vicar of Greatham writes that:
Places for the separate confinement of criminals are the prisons were reformation of manners is most likely to be found. To be abstracted 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 counsellor but thought, the offender will find to be the severest punishment he can receive. The sudden change of scene that he experiences, the window which admits but a few faint rays of light, the midnight silence which surrounds him, all inspire him with a degree of horror, which he never felt before. This impression is greatly heightened by his being obliged to think. No intoxicating cup benumbs his senses. No tumultuous houses of correction.
The horror of solitary confinement is here figured as opening up the possibility of repentance. Having offended against the order of society, due to being overtaken by his senses, the convict must be forced to think without being distracted by any new sensory input. Silence and solitude were pushed by Quaker reformers and Christian clergy because they were the ideal path towards repentance.
As Michael Ignatieff writes in “The ideological origins of the penitentiary,” the idea was attractive to Quakers as a form of purgatory. Confinement “forced withdrawal from the distractions of the senses into silent and solitary confrontation with the self.” This idea was taken up by prominent English prison reformer John Howard. According to Ignatieff, Howard believed that “From out of the silence of an ascetic vigil, the convict and believer alike would begin to hear the inner voice of conscience and feel the transforming power of God’s love.”
These developments in England and the United States have an interesting parallel in the work of German doctor Ludwig Friedrich Froriep. Froriep developed a portable device to render “prisoners temporarily blind, deaf, and deaf-mute.” This, too, was meant to be a more humane form of punishment.
Image from Robert Jütte’s A History of the Senses
Froriep’s device was cheaper than solitary confinement and allowed prisoners to continue working. His idea did not catch on in Germany, but a similar system was developed in the Pentonville Prison in London in the 1840s. As Robert Jütte writes in A History of the Senses, “However inhumane such proposals may appear today, they represent the crux of an infiltration of the penal system by the pedagogic, psychological and medical practices that had been under way since the beginning of the nineteenth century.”
Image: “Prisoners under the silent system wear masks as punishment at Pentonville Prison, London, in the mid-19th century.”
These reformers recognized the horrors of silence and solitude: Hanway refers to solitary confinement as “most terrible”; Brewster as the “severest punishment.” The horrors of solitary confinement were thought to be helpful to reform the convict, to compel them to find religion. In the words of George Washington Smith in his 1829 pamphlet, A Defence of the System of Solitary Confinement, printed for the Philadelphia Society for Alleviating the Miseries of Public Prisons:
The reformation of convicts may be effected either by radical alteration of their dispositions, by instruction, &c. or by the application of punishment sufficiently severe to deter them from a repetition of crime. Both these means are admirably combined in our system. In solitude the progress of corruption is arrested; no additional contamination can be received or communicated; no exposure produces fatal degradation by the destruction of every principle of shame, or of self respect, of every hope of restoration to character and the enjoyment of society. The convict in his cell will be compelled to reflect on the error of his ways, to listen to the reproaches of conscience, to the expostulations of religion.”
The quiet solitude afforded by solitary confinement was a key tool in the new spirit of reform where the mission of the penitentiary became rehabilitation. Prisoners were not placed in isolation because the prison administration did not know how else to avoid anarchy but because solitude and silence were good for the prisoners’ souls.
Enduring Architecture
While much has changed in the goals and methods of corrections in Britain, the US and Canada, the old ideas are still present in the practices and physical spaces of the modern prison. The Kingston Penitentiary, built in 1835, only closed in 2013. Other Canadian prisons were built in the 19th century or following the architectural model of Kingston. As Jackson writes, “Within their austere and forbidding walls, men no longer cry out from the lash as it falls on their bared backs; but the screams that were heard in Cherry Hill and in Pentonville 150 years ago are still heard in Canada’s maximum-security penitentiaries today. These screams are not those of the ghosts of the past; they are the screams of the living, of men who still endure the experience of solitary confinement.” Jackson’s review of the evolution of the penitentiary in the 19th century shows that
solitary confinement was inseparably linked to the disciplinary regime, both in principle and in the language of the penitentiary. Today, one would search in vain to find any reference to it in the statutes, the regulations, or the myriad directives that together form the legislative and administrative structure for penitentiary discipline. If we seek continuity in language in tracing what has become of solitary confinement we will conclude that it, like the cat-o’-nine-tails, has been cast aside as an agent of discipline. But to trust in language would be to err.
The sensory deprivation and overload of solitary confinement is not an accident and it is not inevitable. It is not surprising that the prison in Canada that uses solitary confinement the most, was built in the 19th century. Nor should we be surprised that the newest correctional facility in Canada has not changed much in the design of its segregation cells:
Image: A “pristine” solitary cell at the new Pictou County prison (Communications Nova Scotia)
As momentum builds towards abolishing solitary confinement, we cannot be surprised to find inertia and resistance. After all, institutional security is surely a valid concern. There are even some reports suggesting that violence in prisons has increased as the use of solitary confinement has decreased. However, if reducing the use of solitary confinement is the one thing that changes in Canadian prisons, it is not surprising that the problem will not be resolved. Solitary confinement is so deeply embedded in the modern prison that thinking beyond it requires imagining possibilities outside the physical and intellectual confines of that system.
Further reading:
Buried Alive: Stories From Inside Solitary Confinement by Nathaniel Penn.
Pentonville Model Prison by Kayla Matteucci
Justice Behind the Walls by Michael Jackson, a site containing Professor Jackson’s work on human rights in Canadian prisons.
Solitary confinement and federally sentenced Indigenous women: a moment for change by Krista Nerland
Solitary confinement ‘can drive you to some very dark places’, interview with a former inmate
“Isolation Devastates the Brain”: The Neuroscience of Solitary Confinement by Carol Schaeffer
Craig Haney: Solitary Confinement is a “Tried-and-True” Torture Device by Sarah Childress
Indigenous Inmates and Their Treatment Within Corrections Canada, panel on APTN
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