“The unnecessary assault upon a defenceless, compliant prisoner, knowing that there are three colleagues to back you up if the prisoner retaliates, should be called out as gutless bullying.” Legal columnist HUGH SELBY reveals another shameful case at the AMC.

Question: Why did the ACT government and its agencies attempt to defend the indefensible?

Answer: Because they have forgotten common decency.

Violence sells and it sells big. Whether it be films that entertain, or selling seats to watch one person floor another, there’s money, lots of it, to be made.

Even without money, the cries of “fight, fight, fight” will draw everyone in earshot to watch the amateur action in a school ground. That usually ends when there’s a loud whisper that authority is on its way. After all, schools are supposed to be safe places.

So too are our jails.

This is a story of how our jail (the AMC), that cluster of modern buildings on the road near Hume, named after a fair dinkum 19th century prison reformer, Alexander Maconochie, wasn’t safe and probably still isn’t. For all the unpleasantness go to Palmer v the ACT (No 2).

The story begins in 2017 when prisoner Paul Palmer, after being kept in an overflow area of the prison for several days with no exercise area or shower facilities, became angry (which is not surprising) and smashed the narrow window in the front door of his cell. Two other prisoners did the same thing at the same time. As a result, all three had to be moved to other cells.

That the three of them could be moved raises the question of why that hadn’t been done earlier.

What happened thereafter was recorded on CCTV and a handheld camera. For that technology both we and Mr Palmer can be grateful. Without that footage it would have been the word of an injured prisoner against four officers: he would have known to keep his mouth shut and they – and management – would have known that he would.

How did he come to be injured? Did he fail to comply with directions? Following instructions from outside his cell, given by the officer who ordered a “hard extraction”, he was kneeling on the floor and facing the wall when four officers entered his cell.

He complied with all directions. He did not resist. He had never been violent towards any prison officer.

It was the actions of one (now former) prison officer who “treated the need for force as a foregone conclusion” that led to Mr Palmer’s injuries and pain.

Given Mr Palmer’s compliance with directions there was no cause for force by any officer. However, the intentional “hard extraction” of him from his cell went ahead. 

Why? We’re not told, but it wasn’t justified or necessary. It involved the deliberate use of force, weapons, restraints and a physical hold intended to compel compliance by the infliction of pain.

The chief justice found the footage “harrowing to watch. It reveals that the hard extraction involved a significant degree of violence, by which I mean the use of force in a manner that was certain to, and clearly did, cause pain”. 

The chief justice found that, “the force used against the compliant Mr Palmer was significant and degrading and that it caused him extreme pain and distress”.

The assault upon Mr Palmer caused:

• bruising and swelling to his head; 

• glass lacerations to both of his legs and elbows; 

• pain and injury to his body from being thrown to the cell floor; 

• pain and injury to his shoulders and arms;

• a tear to his right supraspinatus (in his right shoulder); and

• aggravation of a pre-existing anxiety disorder.

A little over six years after the assault the chief justice awarded Mr Palmer $159,654, an amount co-incidentally close to the cost we pay per prisoner per year to keep them, the officers, and us safe.

When may prison officers use force?

The Corrections Management Act acknowledges that the management of prisoners will sometimes require the use of force by prison officers. For example, one or more prisoners may be fighting, destroying property, or be threatening the safety of a prison officer.

However, such use of force is always a last resort. Force that is “necessary and reasonable for this Act” may be used, but only if the officer believes, on reasonable grounds, that the purpose for which force may be used cannot be achieved in another way. Prisoners are to be dealt with humanely and both prisoners and officers are to be kept safe from harm.

The Act has a preamble. It includes,

• The criminal justice system should respect and protect all human rights in accordance with the Human Rights Act 2004.
• Sentences are imposed on offenders as punishment, not for punishment.
• The management of imprisoned offenders… should contribute to the maintenance of a safe, just and democratic society, particularly as follows:

(a) by ensuring justice, security and good order at correctional centres…

(d) by ensuring that imprisoned offenders… are treated in a decent, humane and just way. 

Section 9 of the Act, covering the treatment of inmates, requires:

(a) to respect and protect [their] human rights;

(b) to ensure [their] decent, humane and just treatment;

(c) to preclude torture or cruel, inhuman or degrading treatment; [they are] not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;

Given what we now know about how the decision to use force was not reviewed even when there was visibly no reason for it, what does that say about the vibe of “coercive control” at the AMC? Is the law just ignored?

Common sense and decency were abandoned. This may reflect a lack of training, or a lust to inflict pain because there were no likely repercussions, or both. 

The unnecessary assault upon a defenceless, compliant prisoner, knowing that there are three colleagues to back you up if the prisoner retaliates, should be called out as gutless bullying.

We should also ask why this matter was defended in court when there was video of unnecessary force against a compliant, non-threatening prisoner? 

There is no mention in the court case of management action against the assaulter officer or the supervising officer, nor of training changes. Both were necessary. The training remains necessary if it has not yet occurred.

There’s a further sting in this story. ACT government institutions with responsibilities that covered corrections, law enforcement, and human rights were sent the footage and asked to take action. They either ignored it or responded, “Nothing to see here”.

Thank goodness that the chief justice could see so clearly what those organisations and prison management could not.

Same old, same old

What did the prison reformer Alexander Maconochie have to say about keeping people in custody?

His notions of “penal science” rested on the beliefs that cruelty debases both victim and the society inflicting it, and that punishment for crime should not be vindictive but designed to strengthen a prisoner’s desire and capacity to observe social constraints.

It seems that our Corrections prefer another path, one in which fear and control, not hope and effort, is the core.

Tucked away in the decision is this damning observation by the chief justice: “[The] dangerous, intractable tension between the rights of prisoners and the safety of corrections officers will continue so long as full-time imprisonment remains the primary form of punishment for serious offences and prisons continue to be overcrowded, under-resourced and unable to offer prisoners any real opportunities for education and reform.” 

Andrew, if you intend to do nothing then at least change the name of the prison – as a mark of respect to Alexander Maconochie who must be turning in his grave.