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A New Form of Homicide in Canada’s Prisons: The Case of Ashley Smith

(Image: Prison window via Shutterstock)

On January 16, 2014, Dennis B. McGuire was executed by lethal injection at the Southern Ohio Correctional Facility, near Lucasville, Ohio. As The New York Times reported, this execution was particularly “controversial” because the state used “a new and untested combination of drugs” to carry out the sentence. Twenty-six minutes elapsed from the moment the drugs were administered until Mr. McGuire was pronounced dead.

The courts will be tasked to determine whether the execution was tantamount to “cruel and unusual” punishment or human experimentation. A federal lawsuit states that Mr. McGuire suffered “repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain. . . . It looked and sounded as though he was suffocating.” Faced with a short supply of lethal-injection drugs in recent years, some states have changed their laws “to keep the names of lethal-drug suppliers private as a way to encourage them to provide drugs.” Others, like Ohio and Florida, have turned to new combinations of drugs, while some, like Missouri and Georgia, have turned to the use of “compounding pharmacies” in an effort to keep secret the source of their drugs and to exploit, if not author, a gray area in the law, a loophole.

It would seem that states are prepared to go to great lengths to shore up and exercise a sovereign and absolute right over the lives of their citizens. Yet, widespread media coverage belies the downward trend in US executions since 1999 (a total of 39 are reported in 2013). This trend cannot be attributed solely to the availability of drugs or pending litigation. Nor can the intense media coverage be explained simply as a renewed public interest in the “controversy” surrounding capital punishment. Rather, state power over life is undergoing a subtle shift in the ways that it is conceived and carried out. It is increasingly entangled with neoliberal ideology, which gathers all forms of social life into a vast, interconnected network, driven by corporate interests, deregulation and the evisceration of the commons, as Henry A. Giroux has described it. The real controversy surrounds the sovereign authority of the state and how it is rhetorically justified in the neoliberal era.

. . . this power is called biopolitics: the power to “make” live and “let” die

In some respects, then, the frenzy to shore up and exercise state power over life might be understood as the dying gasps of the sovereign in the face of a rapidly decentralizing authority. Increasingly, heads of state are no more than symbolic figureheads, the vassals of free-market ideology, deregulation, economic forecasts and corporate lobbies. Life-and-death decisions are no longer “sovereign,” in the classical sense, but emerge almost anonymously and are recommended, as it were, and required by the system itself – the effects of technologies, forecasts, statistical estimates, securitization and risk management strategies. It is this logic that underpins the prison-industrial and mental health complex, as corrections and psychiatry find themselves subject to wider stakeholder “interests.”

Among a long list of horrors, Ms. Smith was “assaulted” by correctional services staff, repeatedly subject to the inappropriate use of force (both chemical and physical), and denied her human right to basic hygiene, such as sufficient toilet paper and sanitary products during her menstrual cycle.

Within this context, state-sanctioned killing takes on a different guise. It is no longer the sovereign prerogative simply to take life, but rather, we are faced with a power that exposes life to death, to neglect, to hunger and poverty, to the loss of dignity, to destitution and precarity. In official political rhetoric, this is not “killing.” On the contrary, it is argued that austerity measures, securitization, criminalization and mass surveillance are meant to protect life, to foster it, to prolong it. Death gets figured as a passive consequence, as merely “letting die”: collateral damage or negative externalities in political economies of scale. In the words of the French philosopher, Michel Foucault, this power is called biopolitics: the power to “make” live and “let” die. To better understand the interrelated power to make live and let die, however, one need not turn to the dramatic manner in which torture and death have been outsourced to penal colonies, like Guantánamo Bay, or black sites, like Abu Ghraib and Bagram Air Base. Instead, this power permeates our political landscape at home, dominating the carceral archipelago and informing mundane public policy on corrections and the treatment of inmates who have a mental illness. It has produced a whole class of citizens whose lives are disposable and who frequently suffer death – even if they are not quite expressly “killed.

The Case of Ashley Smith

On October 19, 2007 Ashley Smith, a mentally ill, 19-year-old inmate on suicide watch, tied a ligature around her neck and strangled herself to death while in the care and custody of the Correctional Service of Canada. Correctional officers watched and filmed the event from outside her cell (the policy in Canada is to video-record all strip searches and “use of force” incidents). Three frontline staff and one correctional manager were initially charged with criminal negligence causing death, but these charges were soon dropped; they were merely following the warden’s orders not to enter the cell “if she’s still breathing.” On June 20, 2008, Howard Sapers, the correctional investigator of Canada, published his report on Ashley Smith, titled, “A Preventable Death.” The 33-page report details the “inhumane” conditions of Ms. Smith’s custody and the systemic failures and abuses of Canada’s correctional facilities, particularly vis-à-vis mentally ill prisoners and the medical care they receive. Among a long list of horrors, Ms. Smith was “assaulted” by correctional services staff, repeatedly subject to the inappropriate use of force (both chemical and physical), and denied her human right to basic hygiene, such as sufficient toilet paper and sanitary products during her menstrual cycle.

During her final year of custody, spent almost entirely in solitary confinement, Ms. Smith was transferred 17 times between 9 different institutions across 5 provinces. Each transfer effectively re-set the clock on her seclusion, bypassing strict legal limits for the length of time it can be used. As Mr. Sapers reports: “The attempts that were made to obtain a full psychological assessment were thwarted in part by the Correctional Service’s decisions to constantly transfer Ms. Smith from one institution to another.” Consequently, despite four years in custody, most of it in seclusion, no full psychological assessment was completed and no comprehensive treatment plan was put into place. The seclusion and transfers also eroded her trust and exacerbated her mental condition. This case came to national attention on January 8 and November 12, 2010, when the CBC News Network’s “The Fifth Estate” broadcast two special investigative reports on Ashley Smith, titled, “Out of Control” and “Behind the Wall” respectively. After a two-year legal battle with Corrections Canada, the second documentary included the shocking video of Ms. Smith’s death in its entirety as filmed by correctional officers.

As nurses have reported throughout our studies, the use of behavior modification “therapies” blurs the distinction between care and corrections, often harming the therapeutic relationship, leading to distrust, or exacerbating existing mental health problems.

The $5 million coroner’s inquest into the death of Ms. Smith lasted more than a year and included eyewitness testimonies, over 12,000 pages of evidence, and many videos – images that might easily be mistaken as Hollywood depictions of a CIA counterinsurgency operation. The Correctional Service of Canada unsuccessfully sought to ban publication of the videos and their use in the inquest. Several video-recordings depict Ms. Smith being forcibly restrained by multiple correctional officers (or were they healthcare providers?) outfitted in full riot gear; another video depicts one of Ms. Smith’s extralegal transfers – her extraordinary rendition – between facilities, hooded and being duct-taped in the seat of an airplane, pleading with her captors. In sum, the evidence covers years of Ms. Smith’s incarceration in a system that cannot but be understood as remarkably coordinated across the carceral archipelago, between many jurisdictions and up and down the command hierarchy. Staff were instructed to lie and falsify reports about Ms. Smith to give the illusion that law and order prevailed in their institution. The pattern of Ms. Smith’s abuse, occurring over years and across many regions of the country, with well over 150 documented incidents of “use of force,” suggests very strongly that these were not isolated or exceptional occurrences, and that Ms. Smith is not the only victim of such abuse. The exception has become the norm.

The Carceral Archipelago and Beyond

It is not just the carceral archipelago that is coordinated in the treatment of prisoners or in the management of the public relations disaster that unfolded after November 2010, in large part due to the second documentary showing the video of Ms. Smith’s final moments of life. As if by coincidence, on January 21, 2011, The Globe and Mail published a “Photo Gallery” or photo essay containing seven images of the St. Lawrence Valley Correctional and Treatment Centre, a provincial correctional facility in Ontario, the province in which Ms. Smith died. Captions inform the reader that this prison “has none of the grim trappings normally associated with one” and that the facility is “ground-breaking” in its treatment of inmates with “mental problems.” “Floors are carpeted and there is an abundance of natural light and soothing music. Most of the 100 ‘residents’ saunter between their roomy cells and common areas.” There are photographs of a smiling prison psychiatrist speaking with a patient in his room, artwork lying on his bed. And there is an image of an inmate sitting on his bed strumming a guitar.

A typical reader might not question this mise-en-scène or wonder whether it is a calculated or even fictitious response to all the bad press surrounding the Ashley Smith case. Nor would a typical reader know that guitars are rarely permitted in prisons or in psychiatric facilities, for obvious reasons of security – or that there is no carpeting, for reasons of hygiene and security – or that there is no “soothing music” being played and little “sauntering” going on. The photo essay is designed to deceive. In the same way that many federal and provincial facilities colluded in the repeated extralegal transfers of Ms. Smith, here correctional staff, psychiatrists and even unwitting inmates/patients are co-opted to put a beneficent face on the penal-psychiatric apparatus (projecting care, justice and the rule of law) for public consumption in a widely read national newspaper. This is just a very small snapshot of the kinds of coordinated forces that serve to censor in advance critical points of view and to discredit those who would expose such spectacles as lies, or as the enabling conditions under which violence – too often to the point of death – continues inaudibly behind the scenes.

Solitary confinement becomes the perfect metaphor for the neoliberal subject.

Nor are public intellectuals free from violence and censorship when they dare to expose what is happening inside our correctional facilities. At the moment the Ashley Smith case was circulating in the public sphere, early in 2011, one of our studies was the target of an attack. The representatives of the penal-psychiatric institution under study, headed by an individual psychiatrist, wrote to the journal editor to accuse us of not possessing ethics approval for our study and to further claim that the data on which we based our analysis did not exist. These are serious charges assailing our integrity as researchers. We had no choice but to share the entirety of our raw data with the journal editor, as well as copies of the research ethics approval, which were in any case on file and easily accessible to the psychiatrist in question. This attempt to discredit and censor us amounts to institutional bullying and covert harassment. It was unsuccessful, in that our article was never retracted or withdrawn; but this individual faced no punitive sanctions for wasting our time and causing unwarranted stress.

The article in question was critical of the use of behavior modification plans in the treatment of mentally ill inmates. Behavior modification plans are rewards and/or punishment schemes often based on a token economy; these plans have been widely criticized in mental health, although they continue to be employed in facilities across the country. Our paper performed an ethical analysis of the biopolitical and neoliberal basis of token economies, asking whether it is ethical in this setting to encourage inmates to fashion themselves as entrepreneurial subjects, and whether it is ethical to use behavior modification as part of responsible nursing practice. These treatment plans, we argued, are coercive and infantilizing: Patients are forcibly subjected to them as a form of socialization, while healthcare personnel, such as nursing staff, are forced to implement them whether or not they believe they are ethical or effective. As Ashley Smith’s inquest would reveal, Ms. Smith herself was subject to behavior modification or “dialectical behavior therapy,” without success. As nurses have reported throughout our studies, the use of behavior modification “therapies” blurs the distinction between care and corrections, often harming the therapeutic relationship, leading to distrust, or exacerbating existing mental health problems.

Nevertheless, a neoliberal perspective might insist that Ashley Smith was herself to blame for her own life and death; this perspective might deny or seek to undermine our social responsibility for her care, and the care of others like her – those who are most vulnerable among us, those who have a mental illness, our youth, the poor. Solitary confinement becomes the perfect metaphor for the neoliberal subject. Of course, it is this animus that characterizes our government’s approach, evident when our public safety minister, Vic Toews, callously remarked that Ashley Smith is “not a victim.” Despite much preaching from government officials over “victims’ rights,” Ashley Smith is not and cannot be a victim in their eyes: she is collateral damage in a war being waged in our streets, communities, and correctional facilities.

She is disposable life – life that is not killed, not directly, not expressly, but that is exposed to death, to indignity, to torture, and to slow but steady suffocation.

Since Ms. Smith’s death, in 2012 Canada’s Conservative government passed Omnibus Crime Bill C-10, otherwise known as the Safe Streets and Communities Act. In an Orwellian twist, this piece of legislation imposes harsher sentences on young offenders and the unconstitutional use of mandatory minimums, which have increased our prison population to an all-time high, disproportionately affecting Aboriginal peoples and persons requiring mental health care. Bill C-10 also subtly changes the language surrounding “use of force” in our prisons. Seclusion and restraint have shifted from the principle of “least restrictive measures” in a patient’s treatment plan to what is deemed “necessary and proportionate” – a dangerous turn toward a subjective and open-ended culture of corrections. “Necessary” to whom? And “proportionate” to what? These are some of the subtle, and largely imperceptible, means by which biopolitical state power is rhetorically justified in the neoliberal era.

Conclusion: A New Form of Homicide

On December 19, 2013 the jury in the coroner’s inquest into the death of Ashley Smith handed down its final verdict. Cause of death: ligature strangulation and positional asphyxia. By what means: homicide.

Calling this death a homicide poses for us unanswerable – but necessary – social and ethical questions. Who is responsible for the homicide of Ashley Smith? Limiting ourselves to the efficient cause of death, we would expect a verdict of self-asphyxiation and suicide. But the inquest delved into final causes: the operative forces, the purposes and principles, and the underlying conditions that condoned – if not conspired in – her death. To be sure, this is not a case of capital punishment, where the life of a criminal is taken as punishment for a crime. Rather, here state power is diffuse and the state essentially unaccountable. Responsibility evaporates along the countless corridors of Canada’s federal and provincial correctional systems, in the halls of parliament, in national newspapers, and beyond. Officially, capital punishment was removed from the Criminal Code of Canada in 1976. We have renounced, it would seem, sovereign state power over the lives of our citizens. And yet, Ashley Smith’s homicide demands that we face up to a new modality of killing in the name of the state.

Under the banner of neoliberal biopolitics, Ashley Smith emerges as a new class of criminal, a new form of life. She is disposable life – life that is not killed, not directly, not expressly, but that is exposed to death, to indignity, to torture, and to slow but steady suffocation. Her homicide is a crime without a criminal, a murder without clear means or motive. For, within the tangled, anonymous, and obscure carceral archipelago – and beyond – it is impossible to locate the agents of aggressive order. We have no recourse to a sovereign authority who will judge the living from the dead. Power is almost infinitely flexible and diffuse, justified by the rhetorics of life, security, and risk-management.

This is uncharted ethical territory. It calls for new language, news ways to think of our social and political responsibilities today, new forms of political agency. The verdict of homicide rejects the neoliberal model where Ashley Smith would be responsible for her own life and death, redirecting our gaze instead toward those systems that should ensure the conditions of human life, and toward ourselves, too, as those who acquiesce in them. How might we do justice to the memory of a girl who was criminalized and institutionalized for throwing crab apples at a postal worker; a young woman with emotional difficulties who responded poorly, sometimes violently, to her incarceration and the “care” she was given; and a system that failed her at nearly every juncture?