Task Force Report on Administrative Segregation

I. Population Management

(a) Introduction

The CCRA provides two specific incarceration status’ - those inmates in the general inmate population and segregated inmates. It implies that offenders must be in one category or the other. While in a strictly semantic sense this may be true, the distinction does little to address the realities of managing inmates that fall into other population categories.

During the Task Force’s visits, it quickly became apparent that some institutions used conditions of confinement that did not correspond to either the general inmate population or segregation, in the way that these are traditionally understood.

As an example, the Task Force saw units where inmates were separated from the general inmate population, usually for their protection or because of special needs, and had limited access to programs and privileges. Yet these offenders had free association with each other within the confines of the unit, and had greater freedom than that given to offenders in units officially designated as administrative segregation.

The CCRA demands that CSC abide by rigorous legal requirements to ensure that the use of segregation and its duration are minimized and that all segregated inmates are afforded full procedural fairness with respect to their isolation. Nevertheless, the CCRA is less clear with respect to the specific rules that should be applied in circumstances which conform to the view of segregation in its traditional form, namely, as a designated place in the institution.

At this point, it is important to note that the legal safeguards that are articulated in the CCRA regarding segregation procedures do not originate from the CCRA per se. If the safeguards outlined in the law were to suddenly disappear, CSC would continue to be bound by principles enunciated in the Canadian Charter of Rights and Freedoms and principles of administrative law (i.e. the duty to act fairly). Therefore, if the CCRA were silent on the applicable legal safeguards for administrative segregation, these principles would dictate that very similar standards be met. Being sensitive to these principles and respecting them contribute in an important way to demonstrating a culture that respects the "Rule of Law".

In as much as CSC is committed to demonstrating a corporate culture that respects the law, it is reasonable to conclude that CSC would accept the obligation of respecting principles of due process and would apply those principles to the extent to which liberty interests of offenders are being intruded upon, for all conditions of confinement that are not in the general inmate population. Although the Task Force provided some preliminary guidance to staff members and managers regarding the management of some of these less restrictive situations, the Task Force concluded that staff members needed more comprehensive information on the application of the law to types of confinement that do not correspond to either general inmate population or segregation.

The Task Force has observed a hierarchy of "sub-populations" that are in place in varying degrees across all regions. In some cases, they are and can be used as alternatives to administrative segregation. In other cases, they may represent de facto segregation units which can be as intrusive as traditional segregation units. They are presented in this report to illustrate the need to define and understand the procedural safeguards applicable to inmates who are placed in any one of them.

The Task Force has reviewed the CCRA/CCRR in order to provide preliminary legal, policy and procedural clarifications. It believes that there is a requirement to differentiate among legal safeguards across these "sub-populations" to ensure CSC is in full compliance with the law, particularly in these less restrictive situations (less restrictive than administrative segregation but more restrictive than the general inmate population).

To facilitate this, the Task Force has defined 12 "sub-populations" (see Figure 4) that characterize the current range of situations that impact on an inmate’s residual rights, freedoms and privileges. The Task Force, for purposes of illustration, has ranked them with respect to their degree of intrusiveness - the general inmate population being the least intrusive and disciplinary segregation being the most intrusive. It has developed preliminary definitions and legal principles (see Annex 2) that can be used to guide a more detailed review of the requirements associated with placement, the provision of due processes and early reintegration into less restrictive situations in the context of the law.

In many instances, administrative segregation is prolonged when less restrictive alternatives are not available. This situation usually gives rise to a single alternative - an involuntary and/or voluntary transfer to the general inmate population of another institution. The Task Force believes that other alternatives are possible.

The Task Force has seen examples of opportunities for creating less restrictive settings than administrative segregation for long-term, voluntarily segregated inmates or for inmates requiring specialized care for clearly-defined behavioural problems. The Task Force suggests that consideration be given to an evaluation of these alternatives and to the development of a medium-term approach to creating them in appropriate institutions.

(b) Current Population Management Practices

The Task Force has identified a hierarchy of 12 "sub-populations" based on the degree of intrusiveness on the rights, freedoms and privileges of inmates in their "sub-population". The model is a starting point for what the Task Force believes should be a comprehensive formal review of population management alternatives aimed at providing direction to staff members and managers on the legal grounds for their use and the degree of review required to protect the inmate’s residual rights and freedoms under the law.

It should be noted that the model depicted in Figure 4 is intended to be an analytical tool rather than a definitive description of the degrees of intrusiveness and separation from normal association. For example, disciplinary segregation is located at the most intrusive end of the spectrum. The reason is that the basis for disciplinary segregation is legally viewed as punitive sanction, imposed following a determination of guilt by the independent chairperson of the disciplinary board. Such a sentence also has implications on security classification, transfer and decisions regarding conditional release.

It can be argued that even though administrative segregation is not legally a punitive response to proven misconduct, it can be regarded as more intrusive on inmates’ liberties.

Unlike disciplinary segregation, which is limited to 30 days for a single offense with an overall maximum duration of 45 days for multiple offenses, it is not subject to any time constraints and can be imposed for considerably longer periods of time. In the eyes of many inmates, the indefinite nature of administrative segregation makes it a greater deprivation of liberty than disciplinary segregation. This was noted by J. Vantour in 1975 in his Study Group report on segregation.

A case could be made along the same lines that incarceration in a SHU should be located closer to the top of the hierarchy. Even though inmates have a greater degree of association than in administrative segregation units in maximum-security institutions, the pervasiveness of control, the nature of the SHU regime and the implications that the placement has on all other correctional and conditional release decisions lead many inmates to consider it the most intrusive form of incarceration. The intention of Figure 4 is not to predetermine the location of any particular form of incarceration, but rather to focus on how each form of incarceration impacts on inmates’ rights, freedoms, and privileges, so that appropriate due process and review mechanisms can be developed. It should be noted that, although the Task Force focused primarily on the intrusion of rights and freedoms associated with being segregated or separated, there is an ongoing requirement, in the context of population management, to ensure that rights and freedoms of inmates, in the general inmate population, are protected. This can mean protection from harassment, from being threatened, and from being victimized by other inmates. These rights and privileges must be considered in any discussion of intrusiveness.

Although the model depicts clear distinctions among these "sub-populations", in reality, there may be more variations in restrictions and review processes. This should be taken into consideration in any future review.

The following observations and proposals are provided by the Task Force as a guideline for a formal review of legal and policy frameworks to ensure that CSC is in compliance with the law when it takes decisions to either segregate or separate inmates from the general inmate population.

(c) The Incarcerated Population in the Context of the Law

The Task Force has noted a lack of understanding around the application of the law to the status of inmates who are not segregated but who are separated from the general inmate population. Policies and practices do not clearly describe:

• the legitimate grounds that can be used for placing an inmate into one of these "sub-populations";
• the legal processes that define the extent to which rights, freedoms and privileges can be restricted, including association; programs and services provided, etc.; and
• the degree of review (monitoring) required to facilitate the return of the inmate to a less restrictive correctional environment.

It found that attempting to clearly designate these "sub-populations" as general inmate population or segregation is not a useful exercise. Effective management implies that the object is to provide appropriate supervision, programs, services and legal safeguards to inmates rather than simply placing them within the two categories of the law.

The Task Force believes that compliance with the law is better understood when segregation and separation from the general inmate population are viewed, and therefore managed, as a status and not a place. The extent to which association has to be limited - a matter of safety and security, and the unique needs of an inmate together contribute to determining the location.

In this context, the Task Force has briefly considered the risk/need issues impacting on whether an inmate should be considered for immediate placement in segregation or for placement in a less restrictive environment. There are many situations where segregation is not deemed necessary: an inmate was involved in a minor fight; was abusive to staff; was in a condition "other than normal". The Task Force has observed that the frequent response to these minor breaches of discipline is to require the inmate to "lock-up" in his/her cell or room for a temporary period of time, in order to calm down or to "return to normal". In addition, these actions are used to promote correct behaviour, while using the least restrictive incarceration option. In these situations, the inmate is temporarily separated or restricted from association with other inmates.

The Task Force has witnessed the use of special treatment units to address the behavioural needs of individual inmates without resorting to more formal treatment provided in regional treatment or psychiatric centres. It has witnessed the effective use of peer support, behavioural management support, and skills development provided through non-core programs.

In these examples, staff have recognized the need to provide an alternative incarceration setting that differs from the general inmate population and traditional segregation.

(d) The Need to Extend the Legal Framework

The effective management of each of these "sub-populations" in the context of the law requires the application of several evaluative factors:

1. when an inmate is segregated or separated from the general inmate population, for any reason, there must be a legal justification for the decision, either through sections 31-37 or 38-44 of the CCRA or through some other compelling legal principle;
2. segregation or separation of inmates must occur in an environment that restricts their association with other inmates and their legal rights, to the least extent possible; that facilitates their return to a more open population, to the greatest extent possible and as soon as possible; and that maximizes the provision of programs and services which are necessary to achieve early release from this restricted environment and successful release into the community;
3. a distinction has to be made among various legitimate grounds for separation based on risk/need factors (e.g. the definition of the use of treatment units vs. segregation for safety/security purposes);
4. consideration has to be given to the special rules that complement the provisions of the CCRA CCRR (e.g. provincial mental health care legislation);
5. due process must be afforded to the degree to which the inmate’s rights are intruded on; the degree of restriction of rights and privileges will have to be considered; and due process and thoroughness of the review will vary;
6. where the regulations relating to the segregation review process do not apply, there must be another process which conforms to the principles noted earlier ((c) The Incarcerated Population in the Context of the Law); and
7. staff members and managers must fully understand the need for and application of these principles.

Accordingly, the Task Force recommends that, as a first step to developing a legal/policy and procedural context for the management of these "sub-populations", they should be clearly described (in the forms in which they are actually occurring in the institutions) and clearly distinguished as alternatives to administrative segregation. (when and how they should be used).

As a second step, principles governing placement in each "sub-population", the provision of appropriate rights, privileges and conditions of confinement, and due process (review) must be clearly stated for each "sub-population", taking into account. the degree of intrusiveness placed on the individual’s rights and freedoms.

When determining the scope of requirements to treat the inmate fairly and in accordance with the law, several key questions should be asked:

• Is the inmate being housed in a manner that restricts liberty to the least possible extent?
• Is the inmate being provided with the freedom of association in keeping the CCRA, CCRR and the Charter?
• Is the inmate being provided with statutory entitlements such as visits, correspondence, appropriate programs, and other services that would be provided if the inmate was in the general inmate population?

The Task Force has developed a preliminary set of definitions for each "sub-population" and a set of legal principles related to placement, reintegration and degree of due process necessary for each of these "sub-populations" (see Annex 2).

The Task Force recommends that these criteria form the basis for a formal review of the CCRA, CCRR, policies and procedures. The purpose of the review is threefold:

1. develop an integrated description of these "sub-populations" in the context of the law and current policy;
2. evaluate the extent to which the law and policy adequately support the management of these "sub-populations"; and
3. identify deficiencies in policy and the law and corrective actions that should be taken in the context of changes to CSC policy and/or the CCRA Review.

Note: The evaluation of conditions in a given unit or the characteristics of groups and individuals in that unit may disclose a situation which is, in fact, the same as traditional administrative segregation, irrespective of how the unit is designated. Such units, groups or individuals must be treated according to the same rules as those applied in a traditional administrative segregation unit until such a time when conditions in the unit and/or characteristics of the group or individual change to permit other standards to be applied.

(e) The Need for Formal Review

Clarifying alternatives to administrative segregation and selecting appropriate procedural safeguards are important steps. The core legal principle that must be applied is that association in the general inmate population is the norm and that any change in this status must be fully justified.

The Task Force recommends that when consideration is being given to forming "sub-populations", institutional procedures be adopted to provide formal reviews of these "sub-populations" at their creation and at regular intervals. The purpose of these reviews would be to ensure that the law is being applied in a manner that minimizes restrictions and maximizes entitlements. These reviews should be monitored at the regional level.

Pending the enactment of legislation that provide remedies for identified "sub-populations", the only specific statutory remedy on which inmates can rely, if they wish to contest placement, is the segregation review process under the CCRA/CCRR. The Task Force believes that this process could be used for inmates who are involuntarily confined in any situation that is not considered to be that of the general inmate population, or inmates who believe that they are not being provided with the personal effects, programs and services to which they would normally be entitled in the general inmate population. This would allow involuntarily placed inmates to seek a decision with respect to:

1. the grounds of their involuntary presence in any condition of separation from the general inmate population, including segregation;
2. the measures which should be taken to permit release as soon as possible; and
3. the rights, privileges and conditions of confinement which they should be afforded.