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Use prison segregation sparingly: Goldlist

Solitary confinement in prisons should be used as a problem-solving or assessment tool rather than as punishment, says Toronto criminal lawyer Jordana Goldlist.

But, she tells AdvocateDaily.com, she's encouraged by recent statistics that show the use of solitary confinement is dropping.

Goldlist, principal of JHG Criminal Law, says she would prefer to see the government implement a graduated system, used judiciously and sparingly, to discover root issues of problems rather than as a "Band-Aid solution" where conflict could later resurface.

The federal government is phasing in a 15-day maximum stay guideline for segregation in its penal institutions, and Ontario adopted the same limit in 2016.

A provincial report found 1,300 people spent 60 or more days in segregation last year. "In practice, this means confining individuals to a six-by-nine-foot cell for 22 or more hours a day, with little human interaction," the report says.

Goldlist says before a person is subjected to the maximum amount of time in segregation, it should be meted out in increments.

"Within the first 24 hours, when the inmate and the situation has calmed down, you can have a conversation" to determine the cause of the disturbance, she says.

But in numerous cases, the behaviour could be beyond the control of the inmate.

"The clients who I know were placed in segregation for extended periods of time, it was because of serious mental health issues. It's a sad reality of our system that many people incarcerated right now suffer from mental health problems," Goldlist says.

"Of course, the most unmanageable, the most unruly in the provincial system are those who are suffering mental health issues," she says. "I can't imagine someone who is trying to cope with anxiety or serious clinical depression, what it does mentally to be locked in a room without windows, without communication, for 15 days, 30 days, and in some cases months or even years.

"It can only exaggerate the symptoms, it can't possibly make them better," Goldlist says.

Corrections Canada states its use of administrative segregation is to ensure security, if an inmate is at risk or if they interfere with an investigation.

Ontario, which is in the midst of instituting reform, uses administrative or disciplinary segregation based on an inmate's request, or for personal protection, misconduct, to ensure the safety of staff or other inmates, and on the advice of a medical expert.

"I have clients placed in segregation for things such as spitting or throwing water on a guard," Goldlist says. "Why are they doing these things? It's because they're being treated like animals."

While she says those actions may be upsetting to guards, it doesn't deserve "locking someone up in the hole for 30 days. What did the guard do to antagonize the inmate?" Goldlist asks, adding some of her clients say they've been taunted and treated poorly.

"The tensions come from both sides," she says. "Do guards deserve to be spit on? Absolutely not, but the guards I know who treat clients with respect they get respect in return. It's a two-way street."

However the system is constructed, Goldlist says segregation should only be used on an emergency basis.

"Why are we even looking at 15 days?" she asks. "I know that's the cap, but when someone is thrown into the hole, they can expect to be there for the maximum."

Segregation, if used, should be formatted where it begins with a 24-hour cooling-off period so that the administration can investigate to find the root causes of the incident that required the discipline, Goldlist says.

"I would like to see some sort of conflict resolution process put in place, but not with the guard that's involved," she explains. "Sit down with both sides and discuss what the problem is, ask the inmate why he or she is behaving in this fashion."

Goldlist says the process should be "to make the outcome agreeable for everybody," including quickly dealing with possible mental health issues.

She acknowledges there is a role for segregation because inmates who are "frustrated by something" lash out.

"It does happen, I'm not going to say inmates are always in the right," Goldlist explains. "That's a reality, so the only the way to protect them or other inmates properly is to separate that person for a period of time but it's not going to take two weeks."

She says there's value in separating a person to diffuse anger and aggression but it should be followed as soon as possible with a discussion about what the issues are and to try to find a way to permanently solve them.

"Let's sit down and figure out what the underlying cause is to the behaviour," Goldlist says. "As a society, we look at temporary solutions. We've always done it a certain way, lock them up, medicate, and place on probation.

"We use all these Band-Aids on problems without ever addressing the underlying issues that are causing that behaviour and treating it so you can prevent future incidents," she says.

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