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“Five years after Ontario vowed to curtail its use of solitary confinement, average inmate stays in segregation cells have grown longer, with one prisoner in Ottawa remaining in isolation for at least 835 days, according to newly released provincial data.

The statistical snapshot shows that solitary confinement, the prison practice of isolating inmates for 22 or more hours a day without meaningful human contact, remains a central component of provincial jail operations. It also raises questions about the commitment of the new government of Progressive Conservative Premier Doug Ford to pending legislation that would severely limit its use.

The most glaring figure comes from the Ottawa-Carleton Detention Centre, where government spreadsheets indicate a Muslim man with mental-health issues, between the ages of 35 and 39, was housed in solitary for at least 835 days. Little more is known about him. United Nations guidelines recommend 15 days as a limit for segregation placements to prevent lasting mental and physical harm. Earlier this year, the previous Liberal government passed legislation that would enshrine those 15-day caps, but it has yet to be proclaimed by the Lieutenant-Governor.” 

– Patrick White, “Length of solitary stays increasing in Ontario prisons, including 835 days for one inmate.The Globe and Mail, November 5, 2018.

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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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“We are fortunate to now have in a French edition a collection of the five booklets produced by the

Groupe d’information sur les prisons

between February 1971 and January 1973 – Intolérable, numbers 1 through 4, and a collection of prisoners’ demands – combining questionnaires and inquiries on prison conditions, texts and declarations from prison uprisings, reports by prison psychiatrists, a dossier on the killing of George Jackson and the black prison movement in the US, and correspondence and information about the wave of suicides in French prisons. This small archive is all the richer inasmuch as it repels a reduction of its ambiguities through the flattening logic of the futur antèrieur (“it will have been the case” that these inquiries were a step away from Marxism and towards democracy…).

As the declaration and prefatory text to Intolérable 1 manifest, the GIP’s prison inquiries are a sui generis combination of methods and objectives stemming from the experience of French Maoism, the ferment in the penal system, broader shifts on the French Left, mutations in the figure of the intellectual, and the political thought of Michel Foucault. The GIP’s inauguration coincides with the end of a hunger strike of Maoist prisoners – and with their decision no longer to demand the status of “political prisoners,” in contradistinction to ordinary (droit commun) inmates. For all of the editor’s emphasis on the irreducible singularity of which the GIP is supposed to be the bare repeater or relay, the group’s pamphlets begin with a minimal but incontrovertible slogan: “Courts cops hospitals asylums school military service the press the TV the State and first of all the prisons are intolerable.” Refusing the horizon of “reformism,” they declare that allowing prisoners to speak on their own behalf, and using the group to transmit their speech and writing to other prisoners, is “the only means to unify in the same struggle the inside and outside of the prison” (16). It is not a matter of inculcating the “consciousness of oppression,” which could hardly be absent, nor knowledge of who the enemy is, a daily experience; rather, it is a question of countering the manner in which the means of formulating, expressing, and organizing this consciousness are systematically quashed and confiscated.

There is irony in how the Maoist principle “no investigation, no right to speak” comes to inform these inquiries. For whereas the Maoists first tried to “establish” themselves in the factories to organize the struggle, they were thrown into jails against their will. And their first instinct was separation. Unity here is thus a matter of breaking a division that – as Foucault notes in a number of contemporaneous interviews – was both imposed upon and eventually affirmed by the workers’ movement, with its debilitating introjection of a bourgeois morality itself reproduced by legal and penal institutions: the division between the proletariat and the “non-proletarianized plebs.” The context of the rallying of the GP to the GIP, and of Foucault’s thinking at the time, is thus that of an attempt to overcome the segmentations among the oppressed, primarily between proletarians (or plebs) with a relationship to the factory and ones without.

To the extent that the penal system is aimed at producing the isolation of a (criminalized) fraction of the working class, Foucault presents the primary objective of the GIP as the “reintegration” of this fraction into political struggles. Moreover, this attempt to suture the fracture in the proletariat – reproduced both by the repressive apparatus and by the official institutions of the workers’ movement – is doubled by a different kind of alliance-building, in which what has become “intolerable” to “new social strata (intellectual, technicians, doctors, journalists, etc.)” (17) about the ruling order is connected to what has always been intolerable in the experience of the exploited class. “Intolerance” is thus framed not (just) as a humanist cry, but as a project for unifying struggles against capitalism – not by providing them with a “thinking head” but by allowing them to communicate with one another beyond their enforced isolation. These “intolerance-inquiries” (enquêtes-intolerance) have four principles: not to attenuate oppressive power but to attack it in a political act; to be the “first episode of a struggle” by targeting specific institutions and individuals,  naming names; to unite around these targets different strata kept separate by the ruling class, thus constituting a single “front of attack”; to be inquiries from the inside, in which the customary objects of investigation become the investigators, speaking on their own behalf and “taking charge of the struggle that will stop oppression from exercising itself” (18).

Despite the shifts in Foucault’s own accounts of the GIP, it is important to keep in mind this explicitly anti-capitalist dimension of the prison inquiries – conceived as instruments to organize a unity against the strategies of domination – if only not to have them retrospectively overwhelmed by the emphasis on “saying the event,” and on not interfering with the words of the imprisoned. The distance between the GIP and classical modes of Marxist organizing is evident enough: an explicit refusal of vanguard organizing, not to mention of traditional distinctions between disciplined workers and the delinquent rabble, is everywhere present. It is also true that many of the terms and practices of the GIP – its stress on public opinion or rights, for instance – seem to belong to a liberal firmament; and that, notwithstanding the protestations against reformism, Foucault himself mused about it calling forth “a new Beccaria.” 9 But the vanishing mediator narrative occludes the antagonistic dimensions of the project, not to mention how, be it in the documenting of George Jackson’s struggle or in Foucault’s coquetting with a vision of criminality as revolutionary (he quotes Hugo on crime as a “coup d’état from below”), it is anything but safely “democratic.”

Much of the willful political ambivalence in these inquiries lies in the very adjective that gives them their title: intolerable. Against the “commission of inquiry” (a common practice of the liberal or radical Left) or the sociological study, they reject the “accumulation of knowledge” for the sake of two aims: to allow prisoners to communicate their experiences and struggles to each other and the outside, in their own words; to intensify and organize an “active intolerance.” This intolerance leaves undetermined whether it would be assuaged by reform or realized in revolution (though we could hazard that the GIP’s tendency, as that of Foucault, is somehow to think a point of indifference between reform and revolt, while bracketing the question of revolution). Perhaps we could say that it lies very much on the hither side of such totalizing questions, though it need not avoid totalizing positions. Objecting to an interviewer’s request to delineate what for him would be an “ideal penal system,” Foucault puts the question as follows – in a class language which he often adopted in this period, allowing it to wane and disappear as the 1970s wore on: “I am simply trying to make visible, to allow to appear and to be transformed in a discourse readable to all, what is unbearable for the least privileged classes in the current system of justice.”

It is fitting that the Intolérable inquiries approached this task by beginning in illegality: prisoners were not allowed to participate in the initial questionnaire so these had to be covertly distributed, by various contacts, especially family members (“some families have become investigators,” the pamphlet notes), in the punitively surveilled context of the “prison visit” (one of the key objects of the inquiries). The approach of Intolérable 1 is methodical. The booklet includes two full questionnaires, two long accounts of prison conditions by prisoners in different establishments, and an anthology of representative statements, thematically classified, from the remainder of the questionnaires. Contrary to Artières’s suggestion in his postface that the GIP had no slogan but that of letting the prisoners speak for themselves (itself a declaration that could be easily problematized: “letting speak” is a very complex act), the first booklet does present itself as connected to a campaign – against the criminal record, posited as a key site for fighting the state’s unlimited power, the hypocrisy of its claims to reeducation, and the endemic violation of labour rights, which turns every release into a mere reprieve.

The questionnaires cover, in detail at once harrowing and repetitious, the conditions of prison life in France in 1971 – from the unavailability of dentistry to the brutality of solitary confinement (le mitard), from the lack of books to the filthiness of living quarters, and from the hyper-exploitation of prison labour to the repression of sexual life. Filled out clandestinely, as noted in at least one questionnaire, they are succinct, if detailed, and bleak – like many workers’ inquiries neither enjoyable nor entertaining, and, given the passing of time, also disconnected as reports from the historical immediacy that originally lent them their moral and political force. While Engels’s Manchester still makes for vivid reading, these archives, disjoined from the practice of the GIP, necessarily test the reader – at least for Intolérable 1, it is the monotony of oppression and not the singularity of the voices that stands out. The first questionnaire may give us a clue to this, when, asked “Can you describe the conditions of the prison visit (what seems most intolerable to you)?,” the inmate answers: “No. You cannot describe the conditions of the visit, you have to live them” (though he proceeds to list the noise, the dirt and the anxiety generated by the limit on time) (20).  What is perhaps most revealing, though, is his answer to the last question, which asks for general views about the questionnaire and the inquiry. Starkly, he states “you have the wrong address” – meaning that the prison is not a site that could be reformed on its own without taking on the whole of the justice system, where the police engages in forms of violence even more brutal than the ones meted out by prison guards. Though he welcomes the inquiry, as part of a broader investigation into the barbarities of the justice system, its danger is that “the effect is taken for the cause” (31).

This recalls an important point made by Foucault in his preface to Livrozet’s De la prison à la revolte, where he notes that though prison writings, namely in the form of memoirs, have been tolerated – as long as they were “as extreme and singular as possible,” adventure writings that served as the converse of the forensic thrills of detective fictions – what has always been proscribed has been the production in the first person of theory from prison, especially in the guise of “a thinking of infraction … a certain reflection on law linked to the refusal of law.” Such theorizing must be left in the hands of the social scientists, for whom the prisoner is the investigated, never the investigator, and prisoners can only form a dispersed collection, never a collective movement. Against the idea that “saying the event” requires celebrating irreducible singularity, the GIP’s inquiries can in part also be seen as a move against the temptation, present in the public genre of the prison memoir, to “conjure away everything that is quotidian, familiar, extremely probable, and in the final analysis that is central in our relationship to the police and to justice.” With their detailed enumeration of unwashed toilets, noise, humidity, mediocre slop, cramped “exercise yards,” frustrated sexuality, or the grinding labour of assembling chairs for a local factory owner, the questionnaires are a taxing testament to this everydayness of oppression, as endemic in its generality as it is arbitrary in its individual manifestations (random censorship, whimsical punishments, bizarre regulations). Indescribable suffering channeled into deadpan descriptions: “8 meters square lit by an armoured window; a basin, a toilet, two mattresses, an interphone. Total isolation. The need for contact turns into delirium. I bang my head against the wall to break the monotony.””

– Alberto Toscano, “The Intolerable-Inquiry: The Documents of the Groupe d’information sur les prisons.” Viewpoint Magazine. September 25, 2013.

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Expanding the Carceral State
While the federal government was no more willing to step into state prisons on behalf of Muslim prisoners than it was in Albany, Georgia, on behalf of nonviolent protestors, the activism of the Muslim Brotherhood continued to receive attention from the state capital in Albany, New York. The writ-writing campaigns of prisoners had helped prompt a national response and the attention of the courts, but it also caused an arm of the state to reach deep into incarcerated communities. Wardens and state corrections officers authorized prison surveillance and, in some cases, even dedicated a staff member to internal supervision of the Nation of Islam. This surveillance was meant not only to absorb and report but also to disrupt and subvert. It also provided the raw material for state knowledge production that could quell prison activism. Prison officials soon emerged as arbiters of religious orthodoxy, determining who and what constituted legitimate Muslim practice.

As they looked to Muslim religious practices such as eating, prayer, and use of Arabic for markers of identity and political agitation, prisoners turned to informal strategies of daily resistance to combat state intrusions. Through its intervention, the state also assigned political meaning to religious practice, further politicizing incarceration and the practice of Islam within prison walls. State surveillance began with prison officers, who had the most daily contact with prisoners. One institution devoted an officer to keeping a list of all active members, searching their cells, and confiscating any literature relating to the Nation of Islam. Seizing materials slowed the spread of conversions and were a source for state intelligence. An area of concern was prisoners’ use of Arabic. The language not only served a cultural and religious function but also flummoxed prison security. For example, Bratcher gave specific instructions in his letter to Malcolm X: his mother would write him of the minister’s reply in red

ink with “three lines of Al-Fatihab” (referring to Al-Fatiha, the first surah in the Qur’an). One state report noted that it “would seem doubtful if the majority of the prisoners can rea[d] and write Arabic but if notes are picked up that seem to contain no meaning maybe they would bear investigating.” Several months later, six pages of Arabic to English and English to Arabic translation were confiscated. 

Another surveillance strategy that relied heavily on prison officers was the scrutiny of Muslim eating habits. The refusal to eat pork in prisons recalls Malcolm X’s own imprisonment in the late 1940s when he and other prisoners protested its prevalence in prison diets. At Attica Prison, Bratcher wrote to Warden Walter Wilkins asking for permission to carry food from the mess hall to his cell so he and other Muslim prisoners could eat after sundown during Ramadan. One prisoner was even charged with wasting state food for throwing away his bacon and refusing to eat it. Daily political acts such as throwing away bacon even escalated to more formal strikes. In Milan, Michigan, where Elijah Muhammad had once been incarcerated for draft resistance, prisoners took part in a three day hunger strike against pork, which eventually resulted in Muslim-prepared food and a separate dining section. 

These actions were challenged by prison officials who quickly seized on dietary restrictions as a way to monitor and challenge the legitimacy of a prisoner’s religious beliefs. “In order to check the authenticity of the Muslims,” Woodward’s memo noted, “each officer has been required to submit to the principal keeper’s office a report on whether or not the particular prisoner in question is eating pork. The members who are eating pork will be … included in next month’s report.” Another institution itemized prisoners’ eating when pork was served in the mess hall: “Of the above total [of 70], 30 prisoners either refused their ration or gave it to another prisoner, and additional 16 prisoners took their ration to their cells and only two were actually observed fasting.” By monitoring prisoners’ eating, writings, and literature, prison officers acted as foot soldiers in the state’s surveillance of the Nation of Islam. 

From this narrow base of day-to-day surveillance, reports on Muslims in prison also radiated outward to the state and federal levels. The success of the NOI’s organized prison litigation continued to trouble prison officials. The first to present on the NOI at the ACA’s annual conference was the noted penologist Donald Clemmer, who authored his foundational study The Prison Community in 1940. By 1963, topics such as “The Black Muslims and Religious Freedom in Prison” and “The Black Muslim in Prison: A Personality Study” surfaced at the conference. The academic communities of penology and criminology emerged as part of the state’s developing knowledge production about the NOI. 

The 1960s also marked a shift from rehabilitative strategies to psychological warfare and new technologies of violence, and Muslim prisoners were often the first subjected to these new experimental practices. As Alan Gómez notes, bibliotherapy was replaced with isolation, sensory deprivation, and brainwashing; Muslim prison litigation helped “propel this shift.” Edgar Schein, a professor of psychology at the Massachusetts Institute of Technology, presented a paper in 1961 to the U.S. Bureau of Prisons entitled “Man against Man: Brainwashing.” Bertra S. Brown of the National Institute of Mental Health responded by contacting prison administrators and suggesting that they “do things perhaps on your own—undertake a little experiment of what you can do with Muslims.” As Gómez persuasively argues, the ascension of Control Units, Special Housing Units, and Adjustment Centers, were all outgrowths of the experimental use of excessive solitary confinement by prison officials during the late 1950s and early 1960s. These punishments and techniques, he concluded, were “initially experimented with on Muslim inmates [but] later used en masse on political activists [and] became the model for the entire prison regime.”

– Garrett Felber, ““Shades of Mississippi”: The Nation of Islam’s Prison Organizing, the Carceral State, and the Black Freedom Struggle.” The Journal of American History, June 2018. pp. 90-93.

Photos are from Ann Arbor Times, September 6, 1966.

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“‘Super Max’ – It’s a solitary life of misery for convicts in special unit,” Globe and Mail. September 12, 1980. Page 05.

By VICTOR MALAREK

One at a time a few extremely dangerous convicts trudge out of their cells to exercise by themselves for an hour.

They are being punished, and for about a month their life will be sheer misery in a prison within a prison because they have no physical contact with other prisoners or with their keepers.

But their woes will not end after those 30-odds days of strict solitary confinement. Then they start a long stretch of living under intense security, segregated from the rest of the prisoners.

Their world will revolve around a tiny cell constructed completely of steel, cramped recreation areas that are monitored by cameras and close contact with prisoners, who like themselves, are some of the most violent criminals in the country.

Their world is known as the special handling unit or ‘special max.’ There are only two in Canada – one at Millhaven penitentiary in Bath, Ont., and the other at the correctional development centre in Laval, Que.

According to Millhaven’s warden, John Ryan, the units are used to protect prison society from those convicts who are bent on using violence on both the guards and fellow prisoners.

Rehabilitative value is nonexistent
Until a few weeks ago, the total population at the two units was about 50. That figure got a sudden spurt of new blood as nine inmates, who took part in the hostage-taking incident at Laval penitentiary in Quebec, were transferred to the unit at the Laval centre.

Criminologists, psychologists and prisoners alike maintain that the units have no rehabilitative value.

Pierre Landreville, a professor of criminology at the University of Montreal, said the way the units are run ‘right now, they are inhuman. I think I would have to say their only function is to break the spirit.’

But he added that he thought the units are necessary because ‘some of these people are quite dangerous.’

Fred Sweet, chairman of the prisoners’ committee at Millhaven, said in a recent interview at the penitentiary that the units should be eliminated.

‘Some of the guys they (the administrations) put into SHU are potentially dangerous convicts, but once they’re put in, you remove the potential and then they are dangerous,’ Mr. Sweet said, pounding his clenched fist – the letters F, R, E, and D tattooed on his knuckles – on a bare wooden table.

Bryan Reynolds, a 29-year-old convict serving life for murder at Millhaven, described the unit as ‘a breeding ground for violent animals.’

‘Think of living in a room the size of a toilet (bathroom) day after day after day for months on end, only the cell is worse than a…doghouse. You’d get charged by the humane society for treating dogs the way convicts are treated in SHU,’ Mr. Reynolds said angrily. He has spent nine months in the unit.

Mr. Sweet maintained that if the prisoners were treated with ‘human dignity in the first place, SHU would not be necessary.’

Dragan Cernetic, former warden of the British Columbia penitentiary, who now works in operations at Correctional Service of Canada headquarters in Ottawa, hotly defended the units in a recent interview.

‘There are only two ways you can deal with violent inmates. You can impose stringent security on, the whole prison population or you can segregate three or four of the trouble-makers in a place where they can…rot as far as I’m concerned.’

Mr. Cernetic said the kind of convict he would recommend for incarceration in a special handling unit ‘is a man who I could not take home for dinner and feel safe with him.’

On a recent tour of the unit at Millhaven rarely given to outsiders, David Page, the officer in charge of the unit, tersely described the living conditions.

‘All the cells have been completely converted to steel. A steel desk, steel walls, steels sinks, and steel toilets. All the steel is painted. The beds are bolted to the walls.’

During the visit, the convicts were locked in their cells behind massive steel doors. Lunch was being passed to them through a hole in the middle of the door. Intense security was ever present through a maze of electronically controlled steel portals.

Every movement outside the cells is closely monitored either visually or by television cameras. Guards patrol the cell block about every 45 minutes when the men are locked in their cells and peep through a tiny glass opening in the doors to ensure nothing is amiss.

Red panic buttons, in case of trouble, prominently protrude from the walls in every cubicle in the ranges.

One hour a day to exercise alone
On the Phase I block, the tightest security area, a convict’s wiry hand jutted out of a hole in the door where meals are passed. Another prisoner yelled for a guard. ‘Can you come here for a mine. It’s important. I want to discuss my welfare.’

In Phase I, Mr. Page said, inmates get out of their cells one at a time for only an hour a day to exercise.

Conditions improve as the prisoners graduate to Phase 2 and 3, where periods outside the cells and contact with inmates is increased to a little more than six and eight hours a day respectively.

It’s in those latter phases, ‘other than the fact that their movement is contained, the prisoners are a lot better off in some cases than the other inmates. The other inmates don’t have television in their cells,’ Mr. Page said.

A couple of cells have been converted into recreation rooms and mini-gyms where inmates can either play guitars, listen to music or pound out their frustrations on a heavy punching bag.

Inmates can also go outside occassionally to a yard aptly referred to by the guards and prisoners as a ‘cloister.’ They get movies twice a week.

James Hayes, a psychologist at Millhaven, said that sicne the program was started at the penitentiary ‘we’ve had no returnees. The recidivism rate is nil.

Mr. Hayes said that ‘the inmates knows very clearly what he has to do to get his release back to the normal prison population.’

The operative word is co-operation. Inmates must not be mouthy to the guards and must show they can get along with their fellow inmates in the unit.

No limit is placed on the number of visits by family members to inmates in the unit, but the convict and visitor are separated by a cage, glass and screens.

‘The visits are inhuman,’ said Mr. Sweet. ‘The prisoner sits in a cage while he visits with his family. It’s degrading.’

Of his stay in the unit, Mr. Reynolds said the intense security ‘bothers you at first but you get used to it…We’re human beings. What they’re doing in SHU is illegal…(It) is morally illegal because it is cruel and unusual punishment.’

Frank Steel, a member of the three-man board at the Correctional Service of Canada in Ottawa that decides who goes into units, said inmates who take hostages during an escape attempt are almost automatically sent there.

Other infractions leading to an incarceration are murder or or assault on a prison guard or another convict.

‘SHU candidates are those who are determined to be dangerous…inmates perceived to be particularly violent while under sentence,’ Mr. Steel said.

Confinement in the units is relatively free of bureaucratic red tape. A warden holds an in-penitentiary review of the cases and makes a recommendation that goes to regional headquarters and then to the special handling unit in Ottawa.

The board is made up of the deputy comminisioner of security, the head of offender programs and the director-general of medical services.

‘Once we recommend SHU, the case is reviewed monthly at the institution and every six months at national headquarters. Every six months we go to the SHUs and interview those inmates who wish to be interviewed. Usually they all want to be interviewed,’ Mr. Steel said.

Cases reviewed every month
‘We talk about thee progress he’s been making and sometimes give him an indication of when he can expect to be released to the normal population. Our biggest complaint (from the inmates) is the perceived capriciousness of the system and the uncertainty of when an inmate can expect to be released.’

The average stay in the unit is between 18 months and two years, Mr. Steel said.

One convict, who was involved the hostage-taking incident at the B.C. Penitentiary in June, 1975, in which Mary Steinhauser, a classification officer, was killed by prison guards, was released last June from the Millhaven unit.

Paul Caouette, executive secretary of the Union of Solicitor-General Employees, vehemently defended the use of the units, ‘especially when it involves the safety of the guards.’

Mr. Caouette warned that if politicians ever fell to the demands of prisoners’ rights groups of convicts to ban the units, they would see a rapid dwindling in the number of guards.

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“As the five men waited for the SaMarion case to reach trial in the summer of 1962, they planned a hunger strike protesting solitary confinement. The prisoners claimed that Bratcher’s segregation was “an excuse by the warden . . to make him seem that he was crazy concerning this trial that was coming up.” Writ writing had exacerbated fears among prison officials and became one of the most successful strategies for Muslim prisoners. The Nation of Islam successfully flooded the courts with writs across the country. Between 1961 and 1978, sixty-six reported federal court decisions were made on suits fled by prisoners affiliated with the Nation of Islam. In California the number of habeas corpus petitions rose from a mere 814 in 1957 to nearly five thousand by 1965. At San Quentin in 1965, prisoners were churning out almost three hundred petitions per month. As Judge Brennan noted at one trial, these were not “cases where uneducated, inexperienced and helpless plaintiffs are involved … these applications are part of a movement.” Prison litigation became the “peaceful equivalent of a riot” by catalyzing public support and bringing national attention to the otherwise-hidden struggles of prisoners.

One of the largest structural challenges to prison organizing was physical isolation from the outside world. Activists relied on what Berger has called “a strategy of visibility” to make their struggles known. Testifying has its political roots in slavery and has been carried forward through the black feminist tradition. As Danielle McGuire points out in her work on the role of the struggle against sexual violence in the civil rights movement, “testimony must be seen as a form of direct action and radical protest.” Black prisoners saw the courts as political pulpits, a breach in the walls allowing them to take their claims before the world outside. As James Jacobs wrote, “it is as if the courts had become a battlefield where prisoners and prison administrators, led by their respective legal champions, engage in mortal combat.” Sostre later wrote that the “court is an arena. It is a battlefield—one of the best. We will use these same torture chambers, these same kangaroo courts, to expose them.”

Nowhere was this more evident than during Malcolm X’s testimony during the SaMarion trial. Bratcher realized that the state would be mobilizing witnesses to testify against the Nation of Islam’s standing in the Muslim world and wrote to the minister that the “‘Key’ witness I am depending on to ‘seal’ our victory is ‘You’ Minister Malcolm ‘X.’” This set the stage for a four-day showdown between Malcolm X and the state’s witness, the Columbia University professor Joseph Franz Schacht. While Malcolm X admitted openly in court that he had an eighth-grade education, no formal theological training, and could not speak Arabic, Schacht had a “masterly knowledge” of the language, and his book Origins of Muhammadan Jurisprudence, which argued for the historical development and sociological implications of Islamic law, was considered a seminal text in the Western study of Islam. Yet Malcolm X weaved around the meritocratic probing of the state. When asked if he had a degree in theology, he noted that if “my understanding of the word ‘theological’ is correct, the study of God, the science that deals with religion and the study of God, I studied theology in that sense under the Honorable Elijah Muhammad about our God.” When pressed on the length of his education, he replied: “I am still studying.” When interrogated on whether or not he was ordained or had a written certificate that permitted him to proselytize, he reminded the court that “Jesus sent his disciples forth with no written certificate or anything but his approval.” Malcolm X’s

testimony was so convincing that when Schacht took the stand and listed his membership in the Royal Netherlands Academy, the Arabic Academy in Damascus, and an honorary degree in Law from University of Algiers, the judge responded: “I don’t think it is quite thoroughly clear at this time to qualify him as an expert.” 

While Henderson had, in effect, apologized for and excused his racism in the same remark, his open respect for Malcolm X’s opinion shifted the tenor of the case. As Griffin recalled, Henderson was “impressed by Malcolm and his testimony … [and] respected Malcolm for his clear statements and responses.” Bresnihan, likely attempting to curry favor with the judge, then began adopting the phrase the “American Black Man” in his questioning. Malcolm X’s use of the courtroom as a political stage reveals the importance of testimony as a form of nonviolent resistance. His testimony lasted three days, and was over 20 percent of the two-week trial transcript, successfully compelling the judge to rule that the Nation of Islam was a religious organization. But more importantly, Malcolm X’s  political views took center stage and fundamentally altered the rhetoric and discourse of the case.

The case at Attica Prison also underscores the important role that the jailhouse lawyer played in organizing legal challenges from prison. Knowing that most prisoners were not qualified to draw up their own legal challenges, prisons such as Attica maintained rules prohibiting legal assistance. For example, “rule 21” at Attica stated: “Prisoners are prohibited except upon approval of the warden to assist other prisoners in preparation of legal papers.” This strategy was reproduced nationally as a means of combatting prison litigation efforts. In Texas, administrators employed a similar strategy, forbidding writ writers from possessing the legal materials of a fellow prisoner. In California this was known as Rule D-2602. Even if a prisoner wanted to use another’s paperwork as a template, officials concluded that any legal material in a cell not pertaining to that prisoner was evidence of prison lawyering. Just as grandfather clauses and poll taxes worked as state mechanisms to disfranchise southern black voters, rules governing legal access and jailhouse lawyering sought to curb legal literacy and prisoners’ access to the judicial system. Thus, when Sostre wrote to Walker, he urged him to copy the writ into his notebook, then flush it down the toilet, but not to “let this lay around. This is dynamite.” He then listed the “most essential weapons in fighting Shaitan” (Arabic transliteration of “the devil”): legal paper, an ink eraser, one dollar of postage stamps, a loose-leaf binder, and a ball-point pen.

Trough cases such as Pierce v. LaVallee, SaMarion v. McGinnis, and later, Cooper v. Pate, the NOI brought about judicial oversight such that, by 1974, the Supreme Court declared that no longer was an “iron curtain drawn between the Constitution and the prisons of this country.” Yet, while the Supreme Court strictly forbade any “direct or indirect interference by prisons or state authorities” in prisoners’ access to the courts, prisons obstructed court access through measures such as rule 21. They also limited legal advice, intimidated writ writers, and disrupted the legal process through solitary confinement.

Despite these attempts, Muslim prisoners were more organized than the often uncoordinated strategies of local prison officials and state policy makers. In one example in California, San Quentin Prison officials set up a small office where three prisoners transcribed writs onto standardized forms and processed them on a duplicating machine. Meanwhile, the California Department of Corrections attempted to clamp down on writ writers by prohibiting access to law literature and court decisions. 

But Sostre’s letter to Walker in solitary confinement also revealed another strategy pointing toward the concurrent tactics of prison organizing and the broader black freedom struggle. Prisoners appropriated the principal mechanism of prison repression—solitary confinement—as a tool of organized protest. Recognizing that most of Attica Prison’s Muslims were already in solitary confinement, Sostre urged Walker to not be sent back to general population. According to Sostre, they “made a pact not to go down until the religious persecution of the Muslims cease[s].” If Walker was sent back, he was told to threaten to bring contraband literature out of his cell and be sent back to solitary. They reasoned that each time the warden “snatch[ed] an aggressive Muslim out of population, he would send one down from the box and send another one up from population. In other words, he kept manipulating the brothers like monkeys on a string.” Yet Sostre astutely noted that when “the box ceases to work, the entire disciplinary and security system breaks down.” The take-over of solitary confinement was an example of prisoners creatively adapting the methods of prison control as resistance. NOI members filled solitary confinement until the box no longer was an effective form of punishment. Wardens were then faced with the decision of creating hotbeds of activism in segregation or undermining the arbitrary rules they had worked so hard to justify and enforce. 

The prisoners’ strategy of filling solitary confinement mirrored, and in fact predated, the developing civil rights strategy of “Jail, no bail” in the South. …

The prisoners’ strategy of taking over solitary can be traced back to Clinton Prison when the men were reported by the prison officer as discussing the tactics (over a year before the Friendship Nine employed this strategy). While civil rights organizers in the South and prisoners at Attica appropriated forms of state control, Chief Pritchett in Albany was able to mobilize a larger network of police and jails just as wardens at Clinton and Attica Prisons were able to transfer prisoners to other state prisons when their much smaller segregation units became filled with politicized prisoners. Both movements also attempted to garner national attention and press for federal intervention. As Len Holt

of the Congress of Racial Equality explained, “if we go to jail by the hundreds and thousands, the hearts of those who would maintain the old order will be inundated with the guilt necessary to bring about change.” For prisoners at Attica, solitary confinement and the loss of good time were crucial to their claims in state and federal courts. As Sostre wrote: “We have taken over the box and he is anxious to get us out of the box, especially with the big trial coming soon. So don’t let him clean up, for we are living proof of the religious oppression complained of in our writs.” Filling solitary confinement not only

undermined prison security but also built a case for trial and dramatized prisoners’ struggles before the courts and the nation.

But in both cases, appropriation of state repression had unintended consequences. As Berger argues, “mass arrests of political activists provided a dry run for mass incarceration, especially when joined with the economic transformations wrought by mechanization and migration. The civil rights movement gave states an early taste of what it would mean to arrest, prosecute, and imprison large groups of people.” In the case of Muslims at Attica Prison, it coincided with intensified surveillance and monthly reports on the group. Despite their similarities, the “Jail, no bail” strategy has its place in the annals of civil rights history as a heroic confrontation with southern Jim Crow through nonviolent direct action; meanwhile, the take-over of solitary confinement by Muslims at Attica Prison has gone unremarked. At best, the Nation of Islam has been depicted as a reluctant political participant, pulled toward the struggle by Malcolm X. At worst, it is portrayed as an apolitical religious sect that was marginal, or even antithetical, to such movements. Such disparate historical treatments raise important questions about what are seen as legitimate politics, legible activists, and visible sites of resistance in histories of the black freedom movement.”

– Garrett Felber, ““Shades of Mississippi”: The Nation of Islam’s Prison Organizing, the Carceral State, and the Black Freedom Struggle.” The Journal of American History, June 2018. pp. 84-90 

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“Dale Pughsley turned 39 this summer but it wasn’t a happy birthday.  He’s spent more than half of his life in Virginia prisons and could very well die there for something he did when he was a kid.

“I was 18 years old, and it was a crack deal.  I was selling drugs,“ he recalls. ” I grew up selling drugs to my father.  I was in a real dysfunctional household.  I’m not making excuses, but that was my life.  That’s what I knew.   I had been in and out of juvie since I was 14 years old. I mean I was a career criminal by the time I was 14 ”

And that meant being able to protect himself.

“I had a gun – a 25 automatic.  Me and a guy got to arguing over crack,“ he explains. "He was refusing to pay me.  I pulled out the gun really to intimidate him, and he tried to take it, and I shot him and killed him.  I say accidentally, because it wasn’t my intention to kill him.”

Pughsley was charged with second-degree murder.  Sentencing guidelines for the crime dictate a prison term of 5 to 40 years, but Pughsley got 58.  The jury might have assumed he would be eligible for parole, but it had just been abolished in Virginia, and courts were not telling juries about the change.

Pughsley settled in at Red Onion Prison in Wise County and began the education he didn’t get outside.  

“I came at a time where older guys were giving you books.  Conversations were happening back then.  What does it mean to be a black man in America?  What does it mean to be a prisoner in America?  How much should you be held accountable for being a victim of certain circumstances?  Does society owe us anything?”

One of them lent him the Selected Works of Vladimir Lenin, but Pughsley wasn’t much of a reader.  He asked his mentor for a simple explanation – a summary.

“He’s like, ‘Hell no!  Take my dictionary.  I don’t give a damn if it takes you three days to read three pages.  You read it, and you come back and tell me what it means to you, man.’ Now I read and study all the time by myself, and I try to pay it forward to some of the younger guys.”

He was transferred to a lower security prison in Buckingham County, where he worked with professional counselors to help fellow inmates manage anger and address substance abuse, and he talked to them about the way Virginia handles people convicted of crimes.  A 2012 study by the Pew Charitable Trust found on average this state has the fourth longest prison sentences in the nation.

“There’s something wrong where you only have 9% of the general public that’s African-American male, but 65% of the system is African-American male.”

After he started organizing other prisoners around these issues, Pughsley was transferred to the Augusta Correctional Center. There he continued his work – pointing out that inmates make less than a dollar an hour to manufacture license plates, furniture and clothing  for a state-run corporation.

“They’re able to exploit our labor, because we’re not protected by the Fair Labor Standards Act, and we’re not protected by Virginia’s minimum wage act, and we’re talking about an agency that makes nearly $100 million a year from prison labor.”

The state was spending less than two dollars a day to feed each inmate, it had been sued and lost in court for providing inadequate medical care, and Pughsley said the staff was not large enough to ensure prisoner safety. The Department of Corrections refused to discuss Pughsley or his complaints with us – his claim of understaffing, but it recently offered to pay prison guards an $8,000 bonus if they would transfer to a job in Augusta.  As for Pughsley, he’s been transferred five times in the last 20 months, and he claims to be stuck in solitary confinement for speaking out.”

– Sandy Hausman, “Prisoner Fighting for Reform From The Inside Placed in Solitary Confinement.” Radio IQ / WVTV. September 5, 2018.

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