Posts Tagged ‘criminal law’

01:56 Matt: I’m noticing that you’re saying segregation, you’re not saying solitary.

02:00 Lisa: So the technical official language in the legislation is segregation. To me, it’s a synonym. Solitary confinement, as we’ve known it in Canada, is synonymous with what is endorsed in the legislation as administrative or disciplinary segregation. And there were many years where Corrections took the position, “Well, we don’t have solitary confinement in Canada, that’s nowhere in our legislation. That’s an American practice, that’s not something we do.” Thankfully, that battle is behind us at this point, and there’s no doubt that this government accepts that we have been doing, what is effectively solitary confinement and that is this practice of keeping people in cells for 23 hours a day and subjecting them to sensory deprivation, social isolation, occupational deprivation, and there’s of course now a large literature on the mental and physical harms that flow from that level of isolation.

02:58 Matt: But I mean… And I guess, again, naive and largely informed by a lifetime spent in pop culture. I’ve always just kind of thought that solitary was for the worst of the worst. It’s how you… It’s where you put the people who are super bad.

03:10 Lisa: It’s a common presumption that anyone who gets thrown in the hole is the worst of the worst. And at this point, what we’re… What is very clear from the empirical evidence is that people with mental health problems are actually vulnerable to being placed in segregation. Why is that? Because they’re the ones who often have a difficult time managing in the general prison population. So general population is quite a demanding environment, socially speaking. You have to be able to navigate complex social arrangements, you have to be able to manage friendships in complex ways, in ways that in ordinary society we’re really not put to challenges like that, you have to manage your relationships with correctional officers and do all of this amid conditions of serious social deprivation.

04:02 Lisa: So people with mental health challenges often don’t do well in the prison context, and so they’re at risk because for correctional officers, they have to somehow manage, manage the prisoner society, and so where people are having difficulties there’s only so many resources and options that correctional officers have, and in recent decades placing someone in a solitary cell, is one way of dealing with the problem. But of course, people with mental health problems are not the worst of the worst, far from it, they’re people who need more meaningful social supports and more meaningful programs and interventions than other inmates. And so this has been one of the real dysfunctions of the use of solitary is that the mentally ill are at risk of being placed there, at more risk than other inmate groups, and the effects of solitary are more severe on them.

04:55 Matt: Then that raises… Just to put a fine point on it. You don’t get sentenced to solitary. When you get sent to prison, the judge doesn’t say, “I’m sentencing you to solitary.” It’s just he sends you to prison. And segregation is an administrative decision.

05:09 Lisa: That’s such an important point, it’s absolutely correct. The sentencing judge has no idea whether the person before them is going to serve their time in solitary or not. And in fact, I think if a sentencing judge were aware of this issue it may actually impact their decision not only whether to sentence you to custody, but what the length of that sentence should be, given that it’s a much more severe form of state punishment. So it’s true, the reasons you get placed in solitary have nothing to do with the offence you’re convicted of. And I do think this gives rise to real problems in terms of the proportionality of punishment in our system. I think the most famous case in Canada, and the case that really activated a national consciousness around this issue is the case of Ashley Smith, and she was of course 19 years old when she died in a segregation cell having been held there for many months and Ashley Smith had committed no remotely serious criminal conduct in the community. When she was placed in juvenile custody, she’d done nothing more than throw crab apples at a postal worker. She had difficulties as a young person, no question, but nothing resembling serious criminal conduct, and yet she was subjected to the most severe form of state punishment in our system.

06:32 Matt: So, and this sounds like… You were alluding to this earlier, it’s… It is an overstressed and in some cases probably not that well-trained system in terms of people making this decision as something they see as a tool in the toolbox and not necessarily understanding how to use it in the most appropriate way.

06:50 Lisa: Well, sure, it’s one of the only tools in the toolbox, and that is… I think this new legislation that the Federal Liberal Party have just tabled. You can see indications in this legislation that we’re gonna listen more to healthcare professionals commenting on whether a segregation placement is appropriate or what’s called these placement in these structured intervention units that the new legislation talks about. And so I think there is a growing recognition that this has been one of the only tools in the toolbox for correctional officers and that we need to move away from it, particularly where it has negative health effects and that we need to invest more in our system to delivering interventions and programs that might assist inmates rather than placing them in segregation and seeing their condition and personality deteriorate.

07:50 Matt: So let’s talk a bit about the new legislation. What’s in it?

07:55 Lisa: Well, the main… It’s interesting, there’s been a couple of… This is now the second draft bill we’ve seen in a year from the liberals, so they’ve taken a couple of different sort of shots at this, and this new bill is really a different approach than what we’ve seen before. Previously over the last couple of years the Liberals have added some procedural protections for those placed in segregation, so some limits on reviews and the timing and so on. Whereas this new bill you’re hearing the Minister of Public Safety, Ralph Goodale, promote this bill by saying that it’s really about ending solitary. And in a significant sense, it does do that.

08:35 Lisa: So, the sections in the prison legislation that allowed administrative segregation, which was sort of the most nefarious practice of segregation, those provisions are repealed under this legislation; would be repealed. So the word segregation will no longer even appear in the legislation, they are replaced with what’s called legislation that allows the use of what’s called “structured intervention units” and the really important change here is that inmates who are placed in these units… No, inmates can still be separated from the general prison population and for the same reasons as before, but now they’ll be entitled to get out of their cells each day for a minimum of four hours, and for two of those four hours it has to be for some sort of meaningful social contact or intervention. So there’s still problems with this new bill and there’s critics who are already asking whether it’s gonna be segregation by a new name or segregation light. But I think it’s significant to really change the sort of culture around just abandoning someone in a cell for 23 hours a day and instead saying every human being in our prison system is entitled to contact with other people and to some form of programming and to be out of their cells for at least a few hours a day. I think that’s an important shift, and this legislation promises to do that.

10:04 Matt: So do you think it will pass?

10:08 Lisa: I do, I think that… I think this government… I mean I’m not an insider in the legislative process, but from what I hear, this government is committed to getting this legislation passed before the election and they really do, I think, want to be the government that ends solitary confinement and that implements, in some way at least, the inquest recommendations following the death of Ashley Smith. They’re also facing two major charter lawsuits that are now set to be heard in provincial courts of appeal in Ontario and British Columbia. And the the legal effect of the judgements that we’ve already had in those cases are that the current provisions that allow administrative segregation, are set to fall, they’ve been declared unconstitutional. There’s been a sort of delay in the effect of those judgements to give government a chance to respond, but those provisions are soon going to be void.

11:10 Matt: Right?

11:10 Lisa: So, the government really did have to act, given that that litigation is… The results of that litigation.

11:18 Matt: So this is a bit kind of spinning, at the end of the day. They’re sort of getting ahead of it and saying, “Look, we’re doing something great,” when kind of the writing was already on the wall, and they were gonna be put in that position regardless, right?

11:28 Lisa: Look, they’re government, they’re government, they’re trying to do multiple things at a time and they’re always… And they’re always having to choose what priorities they have, at any given time. This government when it came to power in those mandate letters that were released from the Prime Minister to his various ministers, they said the Public Safety Minister was directed to implement the Ashley Smith recommendations, did they work on that on day two? No. But it’s not surprising that, especially when it comes to prisoner rights, this is not a… Prisoners aren’t a group that most government spend time working for, unfortunately, they’re a very marginalized voiceless population, so it’s not surprising that pushing through with lawsuits even when we had a government that indicated willingness to reform was still hugely necessary in pushing this to the top of the list. Public Safety Minister is probably one of the busiest ministers in this government and I think that it’s understandable that it took… That it took ongoing pressure to push this legislation to the top of his to do list.

– Matt Shepherd and Lisa Kerr, “A LOOK INSIDE SOLITARY (AND THE PROMISE OF REFORM).” Queen’s University Law Podcast Series. October 29, 2018.

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“The liberal logic of regulation effected an increasingly strict separation in the penal order between the necessity of punishment and the desirability of reform. In so doing, it made it possible to reconcile the principle of individual culpability with a modicum of respect for physical and mental integrity. The legitimacy of the penal order came to revolve around punishment of the deliberate act, which was to be governed by strict rules of due process and proportionate sentencing.

These principles of regulation entailed two important operational constraints. The first was that punishment was unequivocally predicated on the offender’s free will, so that persons defined as lacking this capacity – the insane, or children under a certain age, for example – were not subject to it. The second was that the principle of proportionality implied a gradation of punishment corresponding, at least in part, to the gravity of the offence. The worse the offence, the greater the legal power of detention (and hence the possibility of prolonged treatment). This led to a fundamental paradox: the conditions for the effectiveness of punishment (and the prisoner reform expected to flow from it) were in stark contradiction with the dictates of prevention. The latter, after all, necessitated prior intervention, before the irremediable occurred. Moreover, prevention is unable by definition to react ex post facto to tangible acts; its whole logic of operation consists of a focus on certain factors that define a social or human condition rather than a particular act. 

This demarcation between the right to punish and the need to prevent – blurred in the case of adults by the waning enthusiasm for the ideals of criminal reform – came fully into play in the case of children. Here, hopes of reform had remained alive and had indeed begun to take priority over the imperatives of punishment. The discourse of the development of child reform institutions depicts reform as inextricably linked to the notion of prevention.

The work is not cleanse the polluted stream after it has flowed on in its pestilential course, but to purify the fountain whence it draws its unfailing supply. What we have to do is devise and carry out such measures as shall take possession of all juveniles who may be placed in such circumstances as to be evidently precarious for a life of crime, or who may already have entered upon it, and keep hold of them until they have been trained in the knowledge of the right way and fairly started in a course of well-doing.

Where children were concerned, the liberal legal order was regarded as a constraint that need not be obeyed with any great strictness – in the words of Toqueville, “the children brought into into it without being convicted, were not the victims of persecution, but merely deprived of a fatal liberty.”

As it happened, the fraught relationship between the penal and the charitable developed, in the case of children, in two stages. In the first, continuing until the mid-19th century, the distinction between young offenders and abandoned children because increasingly clear, with the penal law applicable to the first giving the state the legal means to justify incarceration, while the tendency was for abandoned children to be entrusted to the care of private initiatives, subject to the rules governing parental responsibility and custody. In the second, the fate of children, runaways in particular, was to inspire state measures to provide for their welfare. There ensued a gradual enlargement of compulsory powers beyond the domain of criminal law. In this process, the power to remove children from their homes was extended to cases beyond the bounds of classical penal law. Thus, runaways and abandoned children who kept company with criminals, or whose parents were in prison, could be legally confined.”

– Jean-Marie Fecteau, The Pauper’s Freedom. Translated by Peter Feldstein. Montreal: McGill-Queen’s Press, 2017. French edition 2004. pp.146-47.

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meaning of the distinction between legitimate and illegitimate
violence is not immediately obvious. The misunderstanding in natural
law by which a distinction is drawn between violence used for just
and unjust ends must be emphatically rejected. Rather, it has already
been indicated that positive law demands of all violence a proof of
its historical origin, which under certain conditions is declared
legal, sanctioned. Since the acknowledgment of legal violence is most
tangibly evident in a deliberate submission to its ends, a
hypothetical distinction
between kinds of violence must be based on the presence or absence of
a general historical acknowledgment of its ends. Ends that lack such
acknowledgment may be called natural ends, the other legal ends. The
differing function of violence, depending on whether it serves
natural or legal ends, can be most clearly traced against a
background of specific legal conditions. For the sake of simplicity,
the following discussion
will relate to contemporary European conditions.

of these, as far as the individual as legal subject is concerned, is
the tendency not to admit the natural ends of such individuals in all
those cases in which such ends could, in a given situation, be
usefully pursued by violence. This means: this legal system tries to
erect, in all areas where individual ends could be usefully pursued
by violence, legal ends that can only be realized by legal power.
Indeed, it strives to limit by legal ends even those areas in which
natural ends are admitted in principle within wide boundaries, like
that of education,
as soon as these natural ends are pursued with an excessive measure
of violence, as in the laws relating to the limits of educational
authority to punish. It can be formulated as a general maxim of
present-day European legislation that all the natural ends of
individuals must collide with legal ends if pursued with a greater or
lesser degree of violence. (The contradiction between this and the
right of self-defense will be resolved in what follows.) From this
maxim it follows that law sees violence in the hands of individuals
as a danger undermining the legal system. As a danger nullifying
legal ends and the legal executive? Certainly not; for then violence
as such would not be condemned, but only that directed to illegal
ends. It will be argued that a system of legal ends cannot be
maintained if natural ends are anywhere still pursued violently. In
the first place, however, this is a mere dogma. To counter it one
might perhaps consider the suprising possibility that the law’s
interest in a monopoly of violence vis-a-vis individuals is not
explained by the intention of preserving legal ends but, rather, by
that of preserving the law itself; that violence, when not in the
hands of the law, threatens it not by the ends that it may pursue but
by its mere existence outside the law. The same may be more
drastically suggested if one reflects how often the figure of the
“great criminal, however repellent his ends may have been, has
aroused the secret admiration of the public. This cannot result from
his deed, but only from the violence to which it bears witness. In
this case, therefore, the violence of which present-day law is
seeking in all areas of activity
to deprive the individual appears really threatening, and arouses
even in defeat the sympathy of the mass against law. By what function
violence can with reason seem so threatening to law, and be so feared
by it, must be especially evident where its application, even in the
present legal system, is still permissible.

is above all the case in the class struggle, in the form of the
workers’ guaranteed right to strike. Organized labor is, apart from
the state, probably today the only legal subject entitled to exercise
violence. Against this view there is certainly the objection that an
omission of actions, a nonaction, which a strike really is, cannot be
described as violence. Such a consideration doubtless made it easier
for a state power to conceive the right to strike, once this was no
longer avoidable. But its truth is not unconditional, and therefore
not unrestricted. It is true that the omission of an action, or
service, where it amounts simply to a "severing of relations,”
can be an entirely nonviolent, pure means. And as in the view of the
state, or the law, the right to strike conceded to labor is certainly
not a right to exercise violence but, rather, to escape from a
violence indirectly exercised by the employer, strikes conforming to
this may undoubtedly occur from time to time and involve only a
“withdrawal” or “estrangement” from the employer.
The moment of violence, however, is necessarily introduced, in the
form of extortion, into such an omission, if it takes place in the
context of a conscious readiness to resume the suspended action under
certain circumstances that either have nothing whatever to do with
this action or only superficially modify it. Understood in this way,
the right to strike constitutes in the view of labor, which is
opposed to that of the state, the right to use force in attaining
certain ends. The antithesis between the two conceptions emerges in
all its bitterness in face of a revolutionary general strike. In
this, labor will always appeal to its right to strike, and the state
will call this appeal an abuse, since the right to strike was not “so
intended,” and take emergency measures. For the state retains
the right to declare that a simultaneous use of strike in all
industries is illegal, since the specific reasons for strike admitted
by legislation cannot be prevalent in every workshop. In this
difference of interpretation is expressed the objective contradiction
in the legal situation, whereby the state acknowledges a violence
whose ends, as natural ends, it sometimes regards with indifference,
but in a crisis (the revolutionary general strike) confronts
inimically. For, however paradoxical this may appear at first sight,
even conduct involving the exercise of a right can nevertheless,
under certain circumstances, be described as violent. More
specifically, such conduct, when active, may be called violent if it
exercises a right in order to overthrow the legal system that has
conferred it; when passive, it is nevertheless to be so described if
it constitutes extortion in the sense explained above. It therefore
reveals an objective contradiction in the legal situation, but not a
logical contradiction in the law, if under certain circumstances the
law meets the strikers, as perpetrators of violence, with violence.
For in a strike the state fears above all else that function of
violence which it is the object of this study to identify as the only
secure foundation of its critique. For if violence were, as first
appears, merely the means to secure directly whatever happens to be
sought, it could fulfill its end as predatory violence. It would be
entirely unsuitable as a basis for, or a modification to, relatively
stable conditions. The strike shows, however, that it can be so, that
it is able to found and modify legal conditions, however offended the
sense of justice may find itself thereby. It will be objected that
such a function of violence is fortuitous and isolated. This can be
rebutted by a consideration of military violence.

possibility of military law rests on exactly the same objective
contradiction in the legal situation as does that of strike law, that
is to say, on the fact that legal subjects sanction violence whose
ends remain for the sanctioners natural ends, and can therefore in a
crisis come into conflict with their own legal or natural ends.
Admittedly, military violence is in the first place used quite
directly, as predatory violence, toward its ends. Yet it is very
striking that even—or, rather, precisely—in primitive conditions
that know hardly the beginnings of constitutional relations, and even
in cases where the victor has established himself in invulnerable
possession, a peace ceremony is entirely necessary. Indeed, the word
“peace,” in the sense in which it is the correlative to the
word “war” (for there is also a quite different meaning,
similarly unmetaphorical and political, the one used by Kant in
talking of “Eternal Peace”), denotes this a priori,
necessary sanctioning, regardless of all other legal conditions, of
every victory. This sanction consists precisely in recognizing the
new conditions as a new “law,” quite regardless of whether
they need de
guarantee of their continuation. If, therefore, conclusions can be
drawn from military violence, as being primordial and paradigmatic of
all violence used for natural ends, there is inherent in all such
violence a lawmaking character. We shall return later to the
implications of this insight. It explains the above mentioned
tendency of modern law to divest the individual, at least as a legal
subject, of all violence, even that directed only to natural ends. In
the great criminal this violence confronts the
law with the threat of declaring a new law, a threat that even today,
despite its impotence, in important instances horrifies the public as
it did in primeval times. The state, however, fears this violence
simply for its lawmaking character, only to natural ends, being
obliged to acknowledge it as lawmaking whenever external powers
force it to concede them the right to conduct warfare, and classes
the right to strike.” 

–  Walter Benjamin, “Critique of Violence,” in Reflections:
Essays, Aphorisms, Autobiographical Writings
Edited by Peter Demetz. Translated by Edmund Jephcott. New York:
Schoken Books, 1986. pp. 279-282.

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Crime and Criminals by The Prison Reform League.  Prison Reform League Publishing: Los Angeles, 1910.  Title page, dedication and table of contents. Read the whole book on archive.org.

I really like this book – unlike many prison reform books from the time, it connects local and state prisons with police and capital punishment issues.  Thoroughly systemic, is what I’m saying.

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