On 23 May the Centre for Criminology held its 9th Annual Roger Hood Public Lecture which was given by Professor Kelly Hannah-Moffat from the University of Toronto. Sarah Turnbull, postdoctoral research fellow at the Centre and Shona Minson, DPhil Candidate provide their comments on this thrilling lecture. Read more below!

PART I

“How do institutions think about and respond to calls for increased accountability to the law and human rights?” Professor Kelly Hannah-Moffat from the University of Toronto provided answers to this question at the Annual Roger Hood Lecture on the 23rd May.

Kelly Hannah-Moffat centered her talk on 19 year old Ashely Smith’s death in custody, which she used as case study to examine institutional behaviours and responses. In December 2013 Ashley’s death was found to be homicide, which belies the fact that despite Canada’s historical concern for human rights and the attempted regulation of those rights, positive outcomes for prisoners have not resulted.

The Honourable Louise Arbour said in her report on the prison in the aftermath of Ashley Smith’s death that “despite [the] plethora of normative requirements, one sees little evidence of the will to yield pragmatic concerns to the dictates of a legal order. The rule of law is absent although rules are everywhere.”

Prof Kelly Hannah-Moffat argues that meaningful penal accountability does not currently exist within the Canadian women’s estate.

Hannah-Moffat explored how the treatment of Ashley Smith, which led directly to her death, was able to take place in a country and a penal system where prisoner rights and law are acknowledged. She considered that it was enabled by an actualisation of rights as organisational risks to be managed which has promoted paper trails and responses designed to buffer prisons from litigation or investigation. It is protectionist; but for the prison not the prisoner. The focus is on the event not the individual.  For example, an incident review will only ask questions regarding the rule keeping. Was the correct protocol followed when pepper spray was administered? Were the correct observations made and recorded when the prisoner was choking herself with a ligature? Normative, moral questions were given no place in this process.

Through these procedures exceptional sanctions become normalized. There seems to be an assumption that if protocols and procedures are followed the prisoners’ rights are safeguarded. By recording and publishing a record of the event noting the observance of protocols (for example on the prison service website) the institution also gives an appearance of transparency.

In the case of Ashley Smith records were kept of more than one hundred occasions when officers entered her cell to deal with an incident. These records were reviewed, and it was found that all was in order although it was noted that she was generating too many “Use of Force” reports. Consequently the management decision was taken that if an incident occurred where she appeared to be choking herself, officers should not enter into the cell until they were certain that she was no longer breathing. Presumably because if she had stopped breathing they would not have to use any force to do what they wanted to with her.  This was eventually what led to her death. At no time was a review undertaken of her management. The ‘moral, normative questions’ were not asked. Was it right to keep a teenage girl in segregation for almost three years? Was it right that a 14 year old sentenced to a few weeks of custody for throwing crab apples at a postman, could accumulate another 2239 days of imprisonment to be added to her sentence, for offences committed whilst in prison ? Was it right for a teenager to be moved between institutions on 17 different occasions, and on each occasion the clock re-started on her period of segregation? Was it right to put a hood on her and use duct tape to secure her on aeroplanes as she was moved between facilities?

How does the reframing of rights as risks to be managed allow this to happen, even in a system which claims to be concerned for the rights of the imprisoned? Hannah-Moffat suggests that the lack of ‘real’ transparency is to blame. The prisons are reluctant to allow anyone in to see the prisons, and overseeing bodies are populated by those who come from the same background e.g. former prison staff or governors, and there is therefore no contrasting mind-set making it impossible for a counter-narrative to develop. Over 50 videos existed of Ashley Smith’s treatment and the incidents they captured evidenced that abnormality had become normalized. Segregation was the ordinary and not the exception. The ‘Use of Force’ reports had allowed the prison to categorise her ‘disruptive’ behavior as a threat to prison security and therefore the responses were constructed as appropriate within an operational risk management framework.

Having concluded that meaningful penal accountability does not currently exist within the Canadian women’s estate, Hannah-Moffat posed several concluding questions: 

What does meaningful penal accountability look like? What happens to the integrity of the sentence when the experience of imprisonment is inconsistent and unpredictable?

In answer to the first question, transparency is essential. Until people from outside of the cultural framework of the penal system are allowed in to provide a counter narrative which questions the reality consequences of the regulations, it is very unlikely that meaningful and sustainable accountability can be achieved.

The next question is thought provoking as it raises the question of what imprisonment should be in order for it to fall within our expected norms for a sentence of imprisonment. For example, is solitary confinement an expected part of imprisonment? Is the use of force expected? Should it be the place of rights and law to set standards which should be met, and if they are not then should the sentence be reduced in length to take account of the excessive punishment which the prisoner has experienced?

Perhaps if prison authorities knew that sentences could be amended as a consequence of their rule keeping, they would look at things differently? 

One might hope that the outcome of the Canadian experience is that prisons will begin to notice when what has become regarded as ‘normal’ is exceptional,  and will recognise that the rule of law should not permit its occurrence even when a plethora of rules seem to provide for its legitimacy.