This paper considers the role that litigation might play in ending the human rights crisis of solitary confinement in Canada while also examining the relationship of prisoner rights litigation to broader, anti-carceral social movements. The paper proceeds in four parts. The first section provides a brief overview of the widespread use of solitary confinement in Canada’s federal prisons and in provincial and territorial jails. Next, current litigation seeking an end to solitary confinement in the federal prisons system is located in the context of a long history of prisoner rights litigation in both the US and Canada. The third section considers the possibilities and challenges of pursuing prisoner rights litigation with broader critiques of the carceral state in mind. The paper ends with examples of anti-carceral lawyering efforts and identifies some elements of a prison abolitionist lawyering ethic.

Ashley Smith’s experience in the adult prison system flowed from certain of its systemic features. This article considers whether and how it is possible to reconcile the basic commitments of sentencing law, including the legal aims of punishment, with that systemic portrait. The youth court that ordered Smith’s transfer to adult custody relied upon an idealized conception of adult imprisonment, just as ordinary adult sentencing courts do. Judges purport to stipulate the severity of punishment, but tend not to consider how prison conditions will shape the severity of the sanction. Even where a particular defendant is likely to face unique difficulties in custody, courts tend to take notice in limited and rare ways. Smith’s experience in adult custody challenges us to more clearly identify, and to consider extending, doctrinal sentencing rules that represent a judicial concern with the effects and prospects of imprisonment in particular cases.

The death of Ashley Smith represents the first time in Canadian legal history that correctional officers were criminally charged in the death of a prisoner under the care of the state. In response to these unprecedented charges, the Union of Canadian Correctional Officers (UCCO) mounted a highly public campaign in defense of the officers. In this article, I review UCCO’s media statements following Smith’s death, submissions to various government review committees, and the current Global Agreement between UCCO and Correctional Service Canada (CSC) regarding federally sentenced women. I suggest these narratives work to reproduce administrative segregation as necessary to manage “troubled young women” who are constituted as an unsafe working condition for officers. I highlight the failure of UCCO to influence government policy, unlike the effective success of unions in the United States, and I challenge the place of UCCO in Canada’s trade union movement.

Ashley Smith lived and died at a confluence of legal sanctions and correctional policy, norms, decisions, and indifference. This article approaches her incarceration primarily through a particular articulation of legal pluralism. Martha-Marie Kleinhans and Roderick A. Macdonald argue legal subjects should be understood as creating law in relationship with laws/norms. The Correctional Service of Canada (CSC) treated Smith as an excluded legal subject through practices of isolation, but the correctional norms evolving in relationship with her resultant distress simultaneously indicate CSC treated Smith as if she were effectively a law-producer, capable of changing policy. However, treating her as a source of norm-creation assumes equality/power Smith did not have. The story leading to Smith’s death in custody illustrates two primary themes regarding the production of law/norms. First, the legal subject within a critical legal pluralism should be widened to encompass those who act within/against (and are acted upon by) legal/normative systems characterized by extreme power disparities. Drawing on Martha Fineman’s vulnerability analysis, I argue such legal subjects should be understood/treated as vulnerable, implicating an enlarged role for institutions. Second, I follow the broad dictates of a critical legal pluralism to demonstrate how the reciprocally constitutive (though unequal) relationship between the legal subject and legal/normative orders manifested in Smith’s incarceration and attendant changes to correctional norms.

Nineteen-year-old Ashley Smith died by her own hand in 2007 in a women’s correctional facility in Ontario, Canada. The subject of the coroner’s inquest into her death was her carceral experience and the failure of the system (leading to her death) during her time in adult federal corrections. The general focus of the inquest was on the state of federal women’s corrections in Canada and the mental health issues experienced by many incarcerated women. We produced a report and provided expert testimony at the inquest regarding the need for a developmentally informed correctional framework. In this article, which is based on our inquest report and testimony, we argue that a developmental perspective is a vital lens for understanding the incarceration experience of young women.

This article offers a narrative analysis of the two CBC Fifth Estate investigative documentaries about Ashley Smith (“Behind the Wall,” 2010; “Out of Control,” 2010) and juxtaposes the documentary narratives against claims made by feminist criminologists with respect to women’s corrections. Examining the coherent ‘through narrative’ that is constructed in each documentary, we claim that The Fifth Estate uses dominant medicalized conceptualizations of mental illness and mental health treatment to frame the Smith case, leaving questions about the gendered nature of her criminalization, imprisonment and mistreatment unasked. Considering the socio-political context of neoliberal and post-feminist individualism, we argue that The Fifth Estate presents the case in a way that maintains the status quo and may resonate with their national audience, but which also reinforces the pathologization of women prisoners and upholds gendered stereotypes.

Feminist scholars and advocates struggle with how to confront the over-criminalization of the most marginalized girls and women. One of the most troubling illustrations of gross injustice is what happened to Ashley Smith. The anniversary of Ashley Smith’s death is a catalyst for amplifying feminist voices. In this paper, I use the Ashley Smith case as a way to frame how I teach critical social justice issues concerning the criminalization of girls and women. My aim is to encourage critical conversations about pedagogy in feminist criminology and socio-legal studies aimed at ameliorative change. With the discipline of Criminology’s systematic failure to understand the unique problems and shared circumstances of girls’ and women’s lives, feminist professors’ teaching, which offers a lens for our students that underscores young women’s constrained choices and the socio/political/cultural context in which their lives and behaviours are embedded, opens up possibilities for transformation.