A flawed Compass: a human Rights Analysis of the Roadmap to Strengthening Public Safety

Conditions of Confinement

1. Context

The Panel's recommendations to CSC on how the Service should restructure the conditions of confinement in Canadian penitentiaries reveal the same fundamental flaws as its recommendations regarding amendments to the CCRA. Like those recommendations the Panel’s approach would be a step backwards in the history of Canadian corrections and compromise Canada's commitment nationally and internationally to a human rights framework for the treatment of prisoners.

The distance and dissonance between the Panel’s framework and a principled human rights’ framework is easily demonstrated. A human rights framework starts with the clear understanding that;

Men, women and children who are in prison are still human beings. Their humanity extends far beyond the fact that they are prisoners. Equally, prison staff are human beings. The extent to which these two groups recognize and observe their common humanity is the most important measurement of a decent and humane prison. Where such recognition is lacking there will be a real danger that human rights will be abused.¹¹⁵

The Panel’s principal recommendations and their rationale on this subject are these:

The Panel believes that living conditions in penitentiaries should serve two purposes:

a) to provide a safe, secure environment, and

b) promote positive, pro-social behaviour, and an active interest in participating in the offender’s correctional plan.¹¹⁶

.. life inside a penitentiary should promote a positive work ethic. Today, an offender who is actively engaged in his/her correctional plan is often treated no differently than an offender who is still engaged in criminal behaviour. The Panel feels that this is detrimental to promoting offender accountability. In this context, the Panel supports an approach that links conditions of confinement to an offender’s responsibilities and accountabilities. These conditions must be identified and managed under the rights and privileges stated in the Act. The following areas could be targeted: degree of association with other offenders; movement (escorted, unescorted, and supervised); private family visits (access to and degree of frequency); leisure activity; personal clothing and property; searching; pay levels and access to money; access to penitentiary and CORCAN employment; access to programs (school or cell-based).¹¹⁷

Recommendations

3. The Panel recommends that, at each security level (minimum, medium and maximum), a basic level of rights should be defined.

4. The Panel recommends that differing conditions of confinement should be dependent on an offender’s engagement in his or her correctional plan and the offender’s security level.¹¹⁸

2. The Correctional Plan

The Panel clearly places great weight on and indeed unquestioning belief in the prescriptive excellence of the correctional plan and regard an offender’s willingness to engage with it as the pre-requisite to certain rights and privileges and conditions of confinement and propose that it be entrenched as an “accountability contract” on which parole release would be contingent. But is the correctional plan such a silver bullet that justifies this linkage with rights, privileges, conditions of confinement and release to the community?¹¹⁹

We must first demystify exactly what a correctional plan is and its role in a prisoner’s life. As described by the Panel:

Upon admission to the federal correctional system, all offenders undergo intake assessment which is designed to assess each offender’s risks and needs. …To thoroughly evaluate the offender, the intake assessment process includes a review of information on the impact of the offender’s crime(s) on the victim(s), as well as information gathered from police reports, court transcripts, judges’ comments on sentencing and other information. The assessment also establishes a multidisciplinary correctional plan for treatment and intervention to be carried out during the offender’s sentence. Once this assessment process is complete, the offender is transferred to the appropriate penitentiary and the rehabilitative process begins.¹²⁰

From the perspective of case management the most important document prepared as a result of the intake assessment process is the Correctional Plan. Commissioner`s Directives define the objectives and components of the Plan:

24. The Correctional Plan is the principal document that provides a comprehensive initial assessment of the offender and an identification of proposed interventions. It is the base document against which all progress is measured. The Correctional Plan provides a succinct description of the critical information that is required to understand how the offender's sentence is to be managed from beginning to end. ¹²¹

29. Based on the results of the Intake Assessment, interviews with the offender, a review of all file information, including files from previous sentences, and consultations with institutional and community staff, the Parole Officer/Primary Worker will define the goals for change, determine the key interventions (programs and activities) required, and indicate the location (the institution or the community), depending on the critical dates during the sentence (transfers, eligibility dates for various types of release, etc.).

30. The Correctional Plan is comprised of the following elements:

1. 
   static factor assessment;
   
2. 
   dynamic factor identification and analysis;
   
3. 
   level of motivation;
   
4. 
   reintegration potential;
   
5. 
   Aboriginal Healing Plan (as applicable)
   
6. 
   sentence planning; and,
   
7. 
   determination of contributing factors and the interventions required to address them.
   

31. Input from institutional and community staff, Elders and Aboriginal Liaison Officers will be obtained in applicable cases.

32. For offenders serving sentences of 10 years or more, the focus of the initial activities or programs should be related to assisting the offender in adjusting to the institution and to the sentence.

33. Correctional Plans are not changed unless there is a significant change in the factors contributing to the offender's criminal behaviour. In these cases, a change in the Correctional Plan is addressed by completing a Correctional Plan Progress Report.¹²²

There is more than a little correctional hubris in the assumption that CSC assessors can, in the first few months of a long sentence, definitively diagnose and prescribe the exact programs that will address the prisoner’s problems, now and in the future. Here as with so much of corrections the distance between the rhetoric and the reality is vast.

The correctional plan typically will identify which of the CSC "menu" of cognitive-based programs are necessary to address the prisoner's criminogenic needs, risk factors, and reintegration potential, and any educational upgrading or job training that may be appropriate and available. According to policy the development of an offender`s correctional plan is handmade and carefully tailored to the offender`s needs, risks and motivation. In practice it more resembles an assembly line mass produced product made from standardised parts. A review of any fifty correctional plans will reveal that they broadly fit into a quite limited number of distinct models and that the same sets of programs are identified for many prisoners. For prisoners who are serving long sentences the policy acknowledges that the "focus of the initial activities or programs should be related to assisting the offender in adjusting to the institution and to the sentence." In other words the correctional plan is initially to help the prisoner do time. For other prisoners, particularly those who have chosen a criminal career path, no programs may be available. Consider for example this assessment of a prisoner believed to be a high-ranking gang member sentenced to nine years for offenses involving drug trafficking:

Mr. A`s contributing factors have been identified as Personal/Emotional Orientation, Attitude and Associates/Social Interactions. Marital /Family and Community Functioning have been assessed as an asset. Mr. A. does not have any identifiable issues in the area of Employment. Mr. A`s. initial correctional plan did not recommend any programs for Mr. A as it was deemed that he did not require program involvement to address his contributing factors because his criminal behavior was due to personal choice.¹²³

While we do not dispute the necessity for a correctional plan, we also reject the notion that as presently structured it is all that is required to manage future risk and prepare the person for successful release. It is not, as the Panel mistakenly thinks, the be-all and end-all of a prisoner’s pathway to rehabilitation. The compilation of program credits: grade 10 English, anger management, CORCAN employment for 6 months, and so on – spread sometimes over years of a sentence, while helpful, are not sufficient to create a predictably rehabilitative environment.

Effective corrections cannot consist of simply participating in a pre-ordered set of programs taken from a very limited menu. It is difficult to imagine how a person could feel motivated under such circumstances. As we describe in more detail in the section on education, personal development must include choice as it is through making choices that the person matures and come to the point where they can understand their needs and problems and thereby commit to a different life. In that sense, development of the person in prison is the same as the development of all people. Few of us during the important years of our development had a clear goal in life and an understanding of what we needed to learn and do to get there. The road of personal development is rarely a straight one. The route and goals change as we discover new options or barriers. So long as choice is involved, the correctional plan must be flexible – to reflect changes in the person and his or her goals. Similarly, all the elements must tie together to make sense and build towards a process of change. The Roadmap recognizes the need for continuity but seems to be overly and unrealistically confident that this can be accomplished by the professional staff under the current framework of the correctional plan.

The Panel`s recommendations not only suffer from the lack of appreciation of the limitations of the correctional plan in the rehabilitative/reintegration process but also a misunderstanding of actual practice under the current regime. The Panel asserts “Today, an offender who is actively engaged in his/her correctional plan is often treated no differently than an offender who is still engaged in criminal behaviour. The Panel feels that this is detrimental to promoting offender accountability.”¹²⁴ It is unclear from where this misconception came but the reality is that it is not the way in which case management of offenders works. Even the most cursory review of case management policy and practice reveals how important participation in a correctional plan is to an offender's security rating and his or her progress through the correctional system. Two of the factors used in the security rating scale are the degree to which the offender has completed the programs on their correctional plan and an assessment of the offender’s motivation towards such completion. An offender who has low motivation or who fails to participate in their plan is deemed to be a higher risk and this will be reflected in determining not just that offender’s security rating but also any decisions regarding access to the community through passes or conditional release. An offender who thumbs his nose at the correctional authorities and does nothing to better his or her situation does so at their peril.

It is this offender who presumably the Panel wishes to motivate to better cooperate with the correctional authorities by encouraging CSC to identify and prescribe conditions of confinement that are tougher for such offenders than those available to their more compliant peers.¹²⁵ Shereen Benzvy Miller, CSC’s former Director General of Human Rights has correctly identified the dangerous implications of this deprivation - “they get less” - model of motivation:

If the consequence of something is an improved feeling of self-worth or even hope for a better future then I agree that we ought to ensure consequences of participation in the Correctional plan. But if they involve deprivation then we are sliding down a slippery slope that does not lead to reintegration of offenders, but rather to a harder, tougher cohort of individuals who, in large measure are already quite used to privation. It is also clear from our years of experience that if offenders ‘participate’ or attend programs for the sole purpose of avoiding a negative consequence, or to meet expectations of a decision-making authority, they are less likely to internalize the benefits and therefore, ultimately, defeats the purpose of the correctional plan in the end.¹²⁶

The Panel would have CSC undergo a re-examination of rights and privileges and develop regimes based on an offender’s performance under his or her correctional plan and differentiating access to ‘rights and privileges’ both by security level and such performance. Less than a decade ago when this “regimes” concept was first advanced, CSC, after consultation with the National Associations Active in Criminal Justice (NAACJ) and the Canadian Bar Association, correctly stepped back from this approach. Yet it is now proposed by the Panel as a new idea with no appreciation of its implications or of the road previously travelled by CSC.

In her memo to senior management CSC’s former Director General of Human Rights reviewed some of these implications:

If we were to allow greater access to privileges when an offender is participating in his/her correctional plan, what would we do for lifers whose programs and correctional plan usually don’t kick in for many years into sentence?

Can rights be limited based on security level (maximum) due to the risk engaging in it presents at different levels of security, for instance providing access to different levels of freedom of association and visiting at different levels or security?

Visits are also, to a certain extent, already different at different levels of security. Look at the SHU --as an example of the way we have ‘justified’ limiting this entitlement. I would also draw you attention to the fact that in my 6 years as DGRRR I never once had a SHU inmate tell me that not being allowed visits was motivating him to work hard to cascade to a less secure facility! I would recommend strongly against using visits as any kind of reward or carrot to motivate participation in other programs for several reasons:

1. on the face of it is like using children as hostages- ‘engage in your correctional plan or you may never see your child again’;

2. maintaining family contacts is by far the most important key to successful reintegration, so CSC ought to encourage, facilitate and respect this right making every effort never to limit unnecessarily- even in the name of an anti-drug strategy;

3. if our most difficult offenders (presumably those whose rights you would want to limit because they are likely the ones at higher levels of security) are those that have the most anti-social tendencies, then we are really playing with fire to break the ties they have with their community support if we limit their access because they will be the least likely to be able to build these networks back up later since they are the least skilled anyway.

You could perhaps put in place a system whereby, if you were deemed to be ‘participating’ you could order more canteen, for example, but experience has taught us through the inmate pay system that determining levels of participation and then downgrading levels is a bureaucratic nightmare and one that leads often to expensive, cumbersome, not always fair decisions.

One might be able to devise a system that provided access to greater ‘privileges’ in less secure environments but I cannot help to define what those privileges would be. I could suggest that one might need to be very careful that (1) those chosen do not actually constitute entitlements like visits, association, access to religious practice, free speech, access to information, or anything the touches upon life, liberty or security of the person; (2) the way the system is administered serves your overall reintegration purpose (based preferably on solid research) so that it can be demonstrated that it supports effective corrections; and (3) that it is administered in such a way as to respect the principles of the duty to act fairly and the rule of law.

Ms Benzvy Miller’s cautionary observations are insightful. Consider her caveat that any strategy must serve “overall reintegration purpose (based preferably on solid research)”. In an editorial article in the British Journal of Psychiatry Sheleigh Hodgins, in reviewing the problem of persistent violent offending, writes:

[O]ne of the characteristics of boys with conduct disorder and callous– unemotional traits and offenders with psychopathy is their altered perception of reward and punishment. Both in neuropsychological tests and in real-life situations, they focus on rewards and ignore punishments. Consequently, they persistently miss the signal – the punishment – that a behaviour is inappropriate. As children, this may be one of the key mechanisms that promotes their antisocial behaviour and that limits their access to the usual socialising experiences such as sports and other community activities, and eventually even to school. The problem persists into adulthood and is present, for example, later in life when they are incarcerated and enrolled in an offender rehabilitation programme.¹²⁷

Offenders with this history and diagnosis often find themselves labelled uncooperative and unmotivated and hence would be a prime target of the negative reinforcement regime being prescribed by the Panel: yet according to this research, such an offender is the least likely to get the message.

Nor would such offenders be the only ones who would not get the message. One of the prisoners who participated in our community hearing at Matsqui Institution had this to say regarding the Panel’s suggested approach of linking “meaningful incentives and consequences” to encourage offenders to participate in their correctional plans:

Years ago I went to boot camp and everything was structured. I spent a lot of time being punished by being sent to the woodpile seven days a week all day until 6 p.m. and I wasn't allowed time out or many visits or even to use weights in the gym. Guess what happened? I turned into a bigger ass, I cared less, I worried about nothing. They “consequenced” so much that I thought it was my free time. I could think on my own at those times and most importantly I grew so negatively towards coppers and screws and judges and law that when I walked out, I came out... evil. That is the reality of a structured environment. Rebellion is a major side effect and a dangerous one. When a person is forced into a corner for so long, as history has proven, the oppressed fight and die for their cause to get out of the corner. ¹²⁸

Some years ago another prisoner, in an interview with Michael Jackson, eloquently described the inherent limitations of a correctional strategy based on restricting rights:

If you want to change a man, you must change his thoughts. And you don't change thoughts by appealing to a man's fear of reprisal. You have to appeal to his humanity no matter how far we fall. In order to appeal to a prisoner's humanity, you must first believe and accept that he has some. If you have an attitude, a perspective and a perception of prisoners as having humanity -- not necessarily being humane because by and large most of us aren't -- I believe there's very few of us that will not respond in time to humane, fair, and kind approaches. If you're going to have any chance at all of turning men like me around, you must treat us fairly, you must treat us kindly. And yes, you must treat us with discipline and continuity in all that you do, and all but those who suffer from dementia cannot help but respond to kindness and fairness. That is the most dangerous weapon you have against the criminal element. But you can't get me to buy into a system where you tell me no violence should ever be used when the first time I do not do what you say, you come down with gas masks and clubs and beat the living shit out of me.

To survive in prison the prisoner must come up with his own values that give him self-esteem, a sense of purpose, a sense of direction. You don't dole these out like they're privileges. The need to love and the need to be loved, a sense of direction, of self-worth, of purpose, those are indigenous to the human being. This is what raises us above the beasts. You don't tell us to act human and then you will give us back those things as privileges. Those things that you are willingly prepared to give us if we act human are the things we need to be human, free of the fear of reprisal.¹²⁹

Organising a prison/prisoner management system around principles of human dignity and fair and just decision-making rather than an appeal to prisoners’ fear of reprisal and deprivation of rights and privileges is not only more consistent with human rights law but with the empirical evidence. A recent 2009 study conducted in a prison in Slovakia confirmed other research findings in North America that show that fair and just procedures are associated with compliance with rules and regulations. The authors conclude:

the strong and consistent relationship between procedural justice judgements and inmate misconduct is evidence that the ways in which prison officers deal with inmates on a daily basis contribute to the maintenance of order. Correctional policymakers who assume inmates solely pursue self-interests and can only be effectively managed by manipulating rewards and sanctions should take notice and avoid casually dismissing the empirical evidence simply because they find deterrence-based offender management strategies intuitively appealing and politically acceptable”.¹³⁰

3.