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NCJ Number: 97731 Find in a Library
Title: Due Process, Legalism and Inmates' Rights - A Cautionary Note
Journal: Canadian Criminology Forum  Volume:6  Issue:2  Dated:(Spring 1984)  Pages:151-163
Author(s): T Landau
Date Published: 1984
Page Count: 13
Format: Article
Language: English
Country: Canada
Annotation: This analysis of the prisoners' rights movement and its relationship to inmate discipline, particularly in Canada, concludes that efforts that focus solely on increasing procedural due process allow the continued use of unrestricted discretionary powers by those in authority.
Abstract: The due process model views each stage of the criminal process as creating obstacles which restrict the authorities and protect the accused person. This model regards the rule of law as the way to restrain discretion and authority. However, prisoners' rights advocates have failed to question whether the law's structure itself permits the exercise of power. In fact, they are unwittingly implanting the problem deeper into the system. Studies by Jackson in Canada and by Harvard Center for Criminal Justice in the United States in the early 1970's have found that disciplinary hearings in prisons were mainly dispositional and undermined both factfinding and provisions for procedural due process. Both studies made recommendations on how to make actual practice fit the principle of due process. Studies of other aspects of the criminal justice system have also shown that the crime control model, which emphasizes expediency through the use of informal procedures during the investigative stage, in fact is dominant despite the rhetoric about due process. The laws and regulations that govern discipline in Canadian prisons allow broad administrative discretion in handling behavior prison officials want to sanction. Due process protections are ineffective and have not protected inmates from the gross abuse of power. Advocates of prisoners' rights need to justify their continued faith in this approach as the solution to a real problem. Twenty references and two case citations are included.
Index Term(s): Canada; Inmate discipline; Prisoner's rights; Right to Due Process
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