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Canada's prison system failing Canadians: David Milgaard

'The punitive justice model doesn't help life. It takes life and I mean that,' says David Milgaard.

CALGARY, Alta. - Canada’s punitive justice model is failing prisoners and the communities they are released back into, says prison reform advocate David Milgaard.

Prisons take away people’s humanity and don’t prepare them for reintegration back into society, which in turn harms communities, he asserts.

“The longer you are inside the penitentiary what is being lost is your morality,” said Milgaard who was the victim of Canada's most notorious miscarriages of justice.

In 1969 he was arrested when he was only 16. In 1970, at the age of 17, he was wrongfully convicted of raping and murdering Saskatoon nurse Gail Miller and sent to Canada’s toughest prisons for life. He spent almost 23 years behind bars before he was released in 1992 and exonerated by DNA evidence in 1997.

Today, Milgaard lives in Calgary and speaks across Canada and advocates for the wrongfully convicted.

He pushed for an independent Criminal Case Review Commission to make it easier and faster for potentially wrongfully convicted people to have their applications reviewed. He, and his group, met with Canada’s Justice Minister David Lametti to discuss the commission and this year Lametti launched public consultations on the creation of the commission.

Milgaard also speaks against Canada’s punitive justice system and advocates for a restorative justice system.

In 2020 – 50 years after Milgaard’s wrongful conviction - the University of Manitoba presented him with an Honorary Doctor of Law degree.

Long-term incarceration destroys morality

Milgaard said prisons cultivate criminality and long-term incarceration destroys morals.

“The longer you are inside the penitentiary what is being lost is your morality.

“Over a period of time, your morality that you went in with, starts to disappear as a result of prisoners trying to stand up and look like they are something when they go inside and say ‘Oh I’m a bad kind of person, I steal, I do this and I do that’ just so that they can feel comfortable inside a penitentiary. That is their way of being ‘someone’ inside. They don’t really know what they are doing and they are afraid.”

Prisoners develop a mindset that it’s OK to do harm.

“I know prisoners share a rule of thumb that it is OK to do wrong to some extent,” said Milgaard.

“Let me say that again. Prisoners share a belief that it is OK to do wrong to some extent with each other. The longer they are inside prison, the worse this gets.”

Long-term incarceration serves no purpose, said Milgaard.

“I know that might sound very strange to the public, or to the people that are having to deal with people that are going out there committing murders, but the truth is if you haven’t got some idea of what you have done wrong in five years time and realize it’s not something that you want to do again, you’re not going to get it in 10, and you’re not going to get it in 15, and you’re not going to get it in 20.”

Milgaard said support from a lot of people, the church, and the advocacy work he was doing while in prison to help other prisoners kept his morality strong during his incarceration.

“If I didn’t have that and didn’t believe in the principles that I nurtured when I was inside the penitentiary I wouldn’t be the person I am here today talking to you.”

Long-term incarceration creates prejudices

Milgaard said long-term incarceration also changes prisoners’ perceptions.

“Long-term incarceration develops biases inside people. It becomes a ‘we-they’ situation.

“When I came out of prison - OK I didn’t even do anything wrong - but these biases, the sense that guards were out there to kill me, or the police were out to kill me, were deep rooted inside my mind. And this was a result of the punitive justice model of this country.”

Excessive use of force on prisoners

Canada’s prison watchdog, Dr. Ivan Zinger, Correctional Investigator of Canada, in his annual report last year said unnecessary, excessive use of force incidents in prisons continue to occur. Zinger’s investigation identified what he called “egregious or inappropriate use of force interventions.”

In one instance, an inmate, while lying naked on his stomach, was subjected to 17 continuous minutes of pain compliance techniques.

Video captured several correctional officers applying pain compliance techniques including ankle torsions, pressure points on his nose and forehead, stepping (full weight) on the back of the inmates’ knees and on his ankles, and rolling a baton on his ankles.

In another incident, a stun grenade was detonated inside an inmate’s cell after guards deployed several grams of pepper spray in his cell.

Solitary confinement is torture

Prolonged and indefinite solitary confinement is prohibited under the United Nations Nelson Mandela Rules on the treatment of prisoners, which describes it as torture.

Ontario’s highest court placed a hard cap on solitary confinement in prisons, saying inmates can't be isolated for more than 15 days because that amounts to cruel and unusual punishment.

Assistant Professor of Law Adelina Iftene has invited Milgaard to speak against solitary confinement at Dalhousie University at the end of September.

Milgaard said the worst time for him in prison was solitary confinement in Stony Mountain Penitentiary. He was placed in solitary confinement numerous times for more than six months at a time and beaten by guards. 

He described solitary confinement as sleeping on cement in a cell with a solid steel door instead of bars and a bright light that never went off.

When Milgaard was asked about his experience in solitary confinement, he said, “You’re taking me into a place I don’t want to go.”

But he did go there and he recounted the nightmare.

“You just…” he paused and let out a sigh, “for me what happened, I just started to lose it. I didn’t realize what was even taking place after awhile. In reality, my food would come and I would eat my food. When the door was open I didn’t even know what was going on. I wasn’t normal. I had a mental problem.

“When you go into a situation like that, you know, you don’t have family, you don’t have friends, you don’t have anybody. You just basically have a hole in the floor where you could defecate and your meals come in through a slot in your door.

“You start to think and you start to sometimes get critical of yourself and your life and it is in this sort of way that you are kept that you start to maybe pick away at yourself in certain ways. You actually do.

“You have no one to be part of your life, sometimes you get out of your cage to go outside for an hour a day, but the worst part of it is you are not receiving any interaction from anyone.

“You are just locked up and they throw away the key. You are in a horrible situation. This is very unhealthy for any human being. You are not even allowed to communicate with other prisoners.

“Sometimes I had been in there for six months at a time. I was in there quite a few times. They just use it as a way to control people. For whatever reason they believe (you) are not conducive to the running of the institution they think that you are causing the powers that be problems in the institution, they just say, ‘off with you. Way you go. You’re in solitary confinement. See how you like that for awhile buddy.’

“I felt so dreadful at times. I feel badly just thinking about it.

“You actually go crazy after awhile. If you do and don't behave you are beaten. When you fight back, they just continue to keep you there.

“There is no way any human being can survive that without going crazy. That is what solitary confinement means.”

Transforming solitary confinement

In June 2019 Bill C-83, amended Canada’s Corrections and Conditional Release Act and is aimed at making “transformational changes” to the federal correctional system. Its intent was to abolish solitary confinement as defined by the Mandela Rules and replace the previous administrative segregation regime with Structured Intervention Units (SIUs).

Milgaard said, however, that SIUs are solitary confinement under a different name.

He said the lawmakers only changed a few words around without making any meaningful changes.

“They are still using solitary confinement in there and it’s a terrible thing to do to people.”

In addition, the new legislation doesn’t place hard caps on how long individuals can be kept in restrictive confinement environments. Nor does it prohibit the placement of mentally ill people in SIUs.

Long-term incarceration institutionalizes prisoners

When inmates are in prison for extended times they become institutionalized and have difficulty coping with the world outside, which is no longer the world they knew.

“It is something I felt would not take place in my life and I argued with people saying that ‘no I don’t believe that is going to be a problem.’ It is a problem.”

When a prisoner is released he may not feel free. Only when a prisoner no longer thinks about it is he finally free, said Milgaard.

“I am (free) to some extent yes. How it was for a long time for me, I was free but I wasn’t really free in my mind in relation to dealing with living and being outside in a completely different world that it was before I was inside. At a certain point you realize you aren’t feeling that anymore and you are free.”

Restorative justice model a better alternative

Many prefer the tough on crime punitive justice model to a restorative justice model, and Milgaard has a message for them - the majority of inmates inside penitentiaries don’t pose a threat to communities.

“It’s very, very, important to realize that right now inside all of our penitentiaries in Canada, approximately 80 per cent of the people that are housed there are no real threat to anybody in the community, to property, to cause harm. That’s how high the numbers are in relation to those people that don’t pose any threat.”

Politicians often support the tough on crime approach for community safety but they are viewing the issue from the wrong perspective, said Milgaard.

“These (politicians) who are standing up or patting themselves trying to tell the community, ‘We need to be hard on these criminals,’ the truth is just the opposite. They need to have a completely different approach in dealing with criminality and prisons and people trying to heal and nurture themselves in a system that is failing the community so badly.”

Peacemaking, not war making

Milgaard describes restorative justice as peace making rather than a war making response to crime and criminality.

When a convicted person goes inside a prison in Canada’s punitive justice model, the correctional system’s focus is geared toward safety and the potential for the prisoner to do harm.

“You are treated like someone who is less than a human being sometimes,” said Milgaard. “I know that is truth. I was part of that system for 23 years.”

There is no healing, no support, he added.

Above all, punishment doesn’t help people help themselves.

“That’s key here,” said Milgaard.

Prisoners need to come to their own conclusion that they want to change he said.

Restorative justice breaks the cycle of harm providing opportunity to victim, prisoner and community in a way to resolve the root social causes of crime.

“It shows loving kindness and offers hope to all,” said Milgaard.

“A simple way to look at it is, it is a peacemaking rather than war making reply to crime,” said Milgaard, adding that those are the words of his mentor Wayne Northey who promoted restorative justice since 1974 and was the executive director of a Christian prison ministries visitation program M2/W2 in British Columbia from 1998 to 2014.

 “As a prisoner myself, I can say the right way to have people change their minds about doing wrong is to surround them with care and love,” said Milgaard.

“They will feel bad about what they have done wrong and will decide for themselves not to do it again. This will change a person - criminality can be beaten.

“Restorative justice deals with people in an effective, caring, kind and loving way so that they can actually think to themselves ‘I have done something wrong.’

“That is where criminality is beaten,” added Milgaard. “It certainly is not beaten by people being punished and treated the way they are in the present punitive justice model in this country. Care and love make the biggest difference in a prisoner’s life. I know. I was a prisoner for 23 years.”

Milgaard said he has held prisoners crying, remorseful of their actions.

“I have held men in my arms who have been crying because they feel bad about themselves and wish they did not do what they have done.

“I would tell them that they are worth more and to hold their heads up and to be strong and to remember not to do wrong things in the future.

“These are the people that we are talking about that really need to have someone inside that situation where they are dealing with their criminality, dealing with working to try to become someone.”

Milgaard occasionally has an opportunity to talk to prisoners inside penitentiaries.

“I don’t look at that person as a thief or a bad person. I look at that person as a person who has the potential to be anything that person really wants to be in this life.”

At any point in one’s life a person can decide to change.

“You can decide what it is you want to be and how you are going to go about doing it and you can accomplish it by just having the ability to do that.

“That is one of the hardest things I learned in my life,” he added. “To have the ability to say ‘I can do something and follow through and do it.’ Then you are a person that is a doer and if you are a doer you will succeed at all that you try to accomplish.”

Canada can do better

Milgaard said Canada can do better and pointed to Japan’s restorative justice model.

“You may not believe this, but any person who commits a very serious crime in Japan may never go to prison at all. Not even for one day.”

Offenders are given an opportunity of merciful leniency he said.

“They are cared for by their families and others. Why are we not going with a better justice model? Why are we not going with merciful leniency?

“We really need to hold the people that are responsible for this and that is basically the criminal justice system itself and the policy makers that are making policies to continue this terrible, terrible tragedy for Canada,” said Milgaard.

Prisoners are people too

People often look down on those who live on society’s fringes and this is wrong, said Milgaard.

“People look at them as crap. People are never crap. People are beauty and beauty is life and that’s what people can be.

“Prisoners are not garbage. They are someone that has the ability to be whatever they want to be. They love and they live a life the same as we love and we live our life. They are no different than we are.”

Prisoners need to be given a basic commodity society on the outside values, said Milgaard.

“It’s humanity,” he said. “Can we give these people humanity? Can we give these people a chance to grow, to heal and to become something in their lives? Because that’s what some of them want to do.

“It’s terrible to see the punitive justice model that is not trying to help life. It is trying to take life and I mean that. It is taking life as we speak.

“We have to take responsibility with the problem,” said Milgaard. “The problem is the way we are trying to do things. This problem is not going away. Something must be done and something must be done now if we are going to help our communities at all. That’s the bottom line.”

ljoy@glaciermedia.ca