Did Canada really abolish solitary confinement?

Sort of, but they may have replaced it with something worse.

Did Canada really abolish solitary confinement?

Sort of, but they may have replaced it with something worse.

In 1912, Douglas Stewart became the warden at the St. Vincent De Paul Penitentiary in Laval, Quebec, and began to overhaul its disciplinary system. Prior to his tenure, imprisoned people who broke the rules had been lashed with a cat o’ nine tails, which was a standard punishment of the day. But Stewart wanted something stronger, and replaced the cat with “hosing.” Guards would blast people with cold water until they asked for mercy. He was satisfied with the results.

“It takes the defiance out of them,” Stewart explained to investigators from a government commission on penitentiaries. “Men will surrender under this who will not under any other punishment.”

Canada’s politicians were horrified. Hosing was abolished in 1913, adding to a growing list of forbidden punishments. By then, prison administrators had already been barred from locking people inside a "coffin-like" box, or forcing them to wear a 28-pound steel boot. Ending hosing was only the latest reform to dull the sharp edge of the country’s prisons.

The politicians were quick to note that they still supported the logic of punishment. The government put people in prison to make them suffer, and people who misbehaved in prison had to suffer even more. The level of that suffering was the only part up for debate.

Even if solitary is eliminated, history suggests that punishment and humanity are fundamentally incompatible.

In the years since, Canada has continued to try to trim the inhumanity from its prison system. It ended the bread and water punishment diets in the 1960s, and corporal punishment in the ’70s. The government now claims it’s abolished solitary confinement under a new law. For decades, solitary has been the most brutal sanction in the country’s prisons. Ending the practice seems like progress.

The Canadian government, however, remains committed to the principle of punishment. That raises questions about what will happen to imprisoned people who break the rules. Even if solitary is eliminated, history suggests that punishment and humanity are fundamentally incompatible. When justice is measured out in pain, brutality seems to be inevitable.

On July 14, 1976, Canada’s Parliament passed a historic bill abolishing capital punishment for civilians. It squeaked through in one of the closest votes in the country’s history. There was broad support for at least narrowing the use of the death penalty, but many felt it should be retained for a small number of scenarios. In particular, many politicians wanted execution on the table in case an imprisoned person killed a guard. People with little else to lose should still fear the punishment of death.

“Will a man in prison for 25 years have any reason not to kill again?” argued Liberal MP Simma Holt. “He pays for the first murder; the second, third, etc. are free.”

Despite the headlines, abolition was mostly a symbolic gesture, as Canada hadn’t executed anyone since 1962. The real meat of the legislation was the unprecedentedly long mandatory prison terms created to replace death sentences. Under the 1976 law, a murder conviction could mean life in prison with no chance at parole for 25 years. Once again, reformers still believed in the principle of punishment — they just wanted to do away with one specific punishment they considered uncivilized.

After the bill’s passage, prosecutors eagerly made use of the new sentencing regime. Freed of the moral weight of execution, they immediately ratcheted up their charging practices. People who would have been tried for manslaughter prior to 1976 often got second degree murder instead, and second degree murder often turned into first degree. After abolition, prosecutors charged people with first degree murder more than six times as often as they had in the years prior to its passage. Sentence severity spiked. The bill that ended the death penalty increased the brutality of Canadian criminal justice.

In 1985, a U.S. federal court ruled that the lighting in a Washington state prison was so bad that it violated inmates’ rights. It was too dark for them to read, and there wasn’t even enough light to properly clean the facility — the darkness hid the filth. The ruling was part of a series of successful lawsuits in the 1970s and ’80s challenging the conditions inside US jails and prisons. Imprisoned people and their advocates also won cases establishing the right to outdoor exercise, and successfully argued that noise inside a prison could be so loud and unrelenting as to be cruel and unusual.

Bill C-83 will still probably improve conditions for the people who were in the worst form of solitary, but it may end up making Canadian prisons even more brutal overall.

In the aftermath of these rulings, prisons were built with lights that never turned off. Soundless, profoundly isolating facilities rose in place of noisy ones. Prisoners got “outdoor exercise” in freshly designed concrete rooms that offered a glimpse of the sky through an opening in the ceiling. The new prisons carefully conformed to the minimum standards laid out in the rulings, explained Keramet Reiter in her 2012 dissertation, The Most Restrictive Alternative. They were built for a new generation of cruelty, insulated from the scrutiny of the courts.

Canada’s new reforms on solitary confinement are similarly legalistic — as though Bill C-83 used torture as its point of reference and began tinkering from there. Solitary is defined as at least 22 hours a day in a cell with no “meaningful human contact,” according to the UN. The new law nudges cell time down to 20 hours, and gives inmates the “opportunity” for up to two hours of meaningful human contact each day. Critics call these new conditions solitary “lite.”

The changes are still significant in theory, but probably less so in practice. In 2017, a recently retired Canada Corrections Service executive argued that people in solitary already got meaningful human contact each day: They could have up to five 30 minute phone calls each week, and they also had daily interactions with prison employees. Guards passed meals through the food slots three times a day and asked whether they wanted a beverage. A psychologist walked down the corridor once a week, shouting “psychology!” to draw the attention of people in their cells. Consultations took place through the food slots.

Bill C-83 will still probably improve conditions for the people who were in the worst form of solitary, but it may end up making Canadian prisons even more brutal overall. That's because it will likely to expand the use of the new solitary “lite” conditions, the prison system’s ombudsman says. Relatively few people will suffer less, and in exchange, many more people will suffer more. It’s a lot like when Canada abolished the death penalty.

Today, justice is inextricable from punishment, but that’s a relatively new thing in the land now known as Canada. European colonizers crossed the Atlantic with a particular idea about law and order, which is largely the same today: Crime must be punished by the government to maintain order.

But many Indigenous Peoples have radically different traditions. For the Haudenosaunee, for example, a murder activated a system that centered reconciliation and atonement. The family of the person who committed the murder bore collective responsibility for the harm, and they would offer reparations. Elders would counsel each side, working to restore peace. When the victim’s family accepted the offering, the affair was closed and “forever obliterated.” There was only vengeance in the rare cases when the offending family refused to atone, or if the harmed family was implacable. Punishment was the rare, worst case scenario.

Canada’s modern justice system isn’t rooted in eternal truths about human nature. Its continuing existence depends on the widespread fantasy that it actually delivers justice.

F.T. Green is a reporter in Toronto. His website is ftgreen.xyz