December 15 marks yet another anniversary in the calendar of carceral violence: the killing of Soleiman Faqiri, who was beaten to death by guards in an Ontario solitary confinement cell in 2016. This August — almost four years later — the Ontario Provincial Police announced that no one will be charged.
Faqiri, known as Soli, was 30 years old. He had studied environmental engineering at university before being diagnosed with schizophrenia following a car accident in 2004. At the time of his death, he was being held in Central East Correctional Centre in Lindsay, Ontario, pending trial for assault. He was placed in solitary confinement despite his diagnosis, a violation of the United Nations Convention Against Torture.
On his 10th day in solitary, Faqiri was “viciously beaten to death,” in the words of an eyewitness, by a group of guards sent into his cell to pacify his agitation and distress. The coroner’s post-mortem report found over 50 “blunt impact trauma” injuries covering almost every area of his body. Guards had pepper-sprayed Faqiri in the face and then covered his head with a spit hood, trapping the irritant in his airways, and allegedly held him down with a knee to his neck: practices linked to deaths by asphyxiation in police custody, including recently those of George Floyd and Daniel Prude in the United States.
The brutalization of Faqiri was a manifestation of the violence endemic in Canada’s carceral system, while the state’s “investigation” exemplifies the fortress of impunity placed around it — much as in the U.S. criminal legal system.
Even such basic details as the number of officers who participated in the beating — somewhere between six and 20 — remain unknown. Police failed to interview the eyewitness, quoted above, who came forward; it fell to the media to uncover his testimony. The coroner’s report, despite finding the massive extent of injury, somehow still concluded that the cause of death was “unascertained.”
The outcome of this whole Potemkin process — the refusal of the state to hold anyone to criminal account — is hardly any surprise. Reportedly, the official reason given to the Faqiri family is that no one can be charged because it is impossible to determine which participant in the mass beating struck the fatal blow.
The Anatomy of Impunity
This conflicts directly with the case law established for non-state perpetrators of violence. In the 2011 case of R. v. Ball, the British Columbia Court of Appeal confirmed that, “where co-perpetrators engage in a deadly assault, the Crown need not prove which of the attackers struck the fatal blow or blows…. This principle has been pithily stated in concrete terms that ‘the blow of one is, in law, the blow of all of them.’”
The net of culpability is cast even wider in areas of law reserved primarily for criminalizing the racialized and marginalized. For example, terrorism prosecutions under Canadian law — 98 percent of which have been against Muslims — can proceed preemptively, even when no violence has been anywhere close to occurring at all.
Indeed, only two out of the 54 completed terrorism prosecutions in Canada so far have involved any actual act of violence, and neither of those caused any deaths or significant injuries. (White supremacist massacres like the 2017 Quebec mosque shooting haven’t been charged as terrorism.) On the other hand, many of these terrorism prosecutions have involved state informants central to manufacturing the prosecuted plots; and as in the United States, those identified as vulnerable due to mental illness have been favorite targets for elaborate and expensive stings.
This logic of mass incrimination is the exact inversion of the logic of mass exculpation applied to state violence. With non-state “terrorism,” the blows of none are converted into the guilt of the many. At the opposite pole of absurdity, when it comes to the state, the blows of the many are vaporized into the guilt of none.
“There is a fragmentation of the total human act,” as psychologist Stanley Milgram wrote in Obedience to Authority, on his (in)famous experiments showing subjects’ willingness to inflict electroshock torture when instructed by an experimenter. “No one man decides to carry out the evil act and is confronted with its consequences. The person who assumes full responsibility for the act has evaporated. Perhaps this is the most common characteristic of socially organized evil in modern society.”
Attempting to hold this strategically disaggregated entity accountable is like fighting not a windmill but the wind itself: pervasive, powerful and ungraspable.
The provincial ombudsman received 350 complaints about excessive use of force in Ontario jails between 2010 and 2013, but only four jail staff members were criminally charged. Since then, the number of complaints has further increased, reaching record levels in 2020.
According to the ombudsman’s investigation, correctional employees “conspir[e] to lie, destroy, and falsify records” to protect their co-workers. While brutality is coordinated and collaborative, accountability is fragmented. It is impossible to even know exactly how many people have died in Ontario’s jails: at least 150 over the last decade, but different agencies counting according to different legal definitions come to different results.
In the rare instances when the violence occurring behind carceral walls does come to light, the division and stratification of power provides each level with an alibi. In response to a civil lawsuit filed by the Faqiris, for instance, the individual guards blame the province for “inadequate training,” and the province blames the guards for acting “outside the course and scope of their duties” (while also contradictorily maintaining that no “unauthorized force” was used).
While “it is commonly understood that in its focus on rights and obligations law is centrally concerned with organizing responsibility … legal institutions are [in fact] centrally involved in organizing irresponsibility,” argues legal theorist Scott Veitch. “Particularly with respect to the production of large-scale harms — including extensive human rights violations, forms of colonialism, or environmental or nuclear devastation … legal institutions operate to facilitate dispersals and disavowals of responsibility, and they do so in consistent and patterned ways.”
Responsibility is instead projected back onto the sufferers of state violence. In Faqiri’s case, the coroner’s post-mortem report fixates extensively on a possible “genetic mutation affecting the heart or blood vessels that may have contributed to this death” — despite finding only “slight” evidence of any cardiac abnormality. The report even begins by suggesting that the entire Faqiri family should get medically tested, as recommended “when a family member has died from one of these conditions.” Desperately seeking answers regarding the death of their son and brother after being viciously beaten in state “care,” the Faqiris are redirected to look instead within their own allegedly faulty hearts (and DNA).
This is the same vein in which deaths in police or prison custody are blamed on Black people’s “excitable” nervous systems, not the tasers that electrocuted them; or on Indigenous people’s “failing” internal organs, not the police boots that pulverized them. Such deflections echo the colonial medical officials of centuries past, who explained away the high Indigenous death rates in Canada’s prisons with the claim that “the Indians cannot bear confinement as well as whites or Chinese.” The subjects of Milgram’s experiments also managed to justify the torture they believed they were dispensing, by denigrating those on the receiving end as “stupid,” “stubborn” and “deserving” what they got.
The Colonial Roots of Mass Incarceration
With these sleights of hand, the violence lying at the heart of the states’ own legal and carceral systems is concealed.
“Legal interpretation takes place in a field of pain and death,” as legal theorist Robert Cover famously reminded. In settler states like Canada, the “field of pain and death” is not just metaphorical but material: the terrain on which Canada’s police stations, courthouses, prisons and jails are constructed is colonized Indigenous land; their “right” to discipline and punish built on genocidal negation of the Indigenous sovereigns whose governance systems long pre-date Canada’s own.
Canada’s prisons and jails are part of a vast and shape-shifting carceral archipelago, which perpetually finds new ways to enforce the dominant rule.
Residential schools are now shuttered and declared “national historic sites,” but Indigenous children continue to be seized en masse by child welfare — at higher rates than at the height of the residential schools — while the “new residential schools” of the prison system confine and torture ever-growing numbers of Indigenous people behind bars. Enslavement was officially outlawed in Canada by the British Empire in 1834, but the widespread indentureship of Black and Brown “temporary migrant workers” from the Global South endures, while incarcerated laborers toil in prison work programs for the typical “wage” of 30 cents an hour. The Ontario government has finally apologized — without accepting criminal liability — to those who suffered decades of torture, rape and abuse in asylums like the Huronia Regional Centre, originally called the Orillia Asylum for Idiots; but the institutional terrorization of those deemed mentally ill, like Faqiri, persists.
The role once performed by asylums has largely now been taken over by prisons and jails: like Faqiri, one-third of those incarcerated in Ontario last year had a mental health alert on file, up from 7 percent two decades ago.
Also like Faqiri, more than 70 percent of all people jailed in Ontario are “legally innocent,” on remand awaiting trial. The ranks of the legally innocent incarcerated — and dying — in provincial jails continue to swell, even as government-reported crime rates decline.
Imprisonment is increasingly untethered from the official justification of punishing legally-ascribed “guilt.” This exposes even more nakedly mass incarceration’s “[ideological function] as an abstract site into which undesirables are deposited, relieving us of thinking about real issues afflicting those communities from which prisoners are drawn in such disproportionate numbers,” as renowned scholar and dissenter Angela Davis writes. “The prison has become a black hole into which the detritus of contemporary capitalism is deposited.”
Mass incarceration is structured to not only target mental illness but to intensify it. This is exemplified by the pervasive use of solitary confinement, “the hole” within the “black hole,” identified as one of the “predominant methods of psychological torture” by the UN special rapporteur on torture.
Solitary confinement produces discernable disruptions to brain patterns, similar to those caused by physical brain injury, after only a few days. Hallucinations, delusions and perceptual distortions are common: the mind’s response to the alternative reality of the solitary cell. Individuals in solitary have gouged their eyes, stuck objects through their skin, tried to strangle themselves and set themselves on fire: an externalization of the internal anguish solitary engenders. Prisoners describe isolation as an “entombment” and a “living death.”
According to the CIA, psychological torture is often more devastating (or, from their perspective, effective) than physical torture: “whereas pain inflicted on a person from outside himself may actually focus or intensify his will to resist, his resistance is likelier to be sapped by pain which he seems to inflict upon himself.”
Three years before Faqiri was killed at Central East, another prisoner, Lawrence Prindible, died by suicide in a segregation cell at the same jail. In both cases, psycho-social death by solitary was a prelude to biological death.
As with incarceration in general, the particular tortures of solitary are systematically visited disproportionately on some: Indigenous people, Black people and people diagnosed with mental illness. In some situations — U.S. counterterrorism prosecutions, for instance — solitary confinement is used deliberately as a coercion tactic, to extract guilty pleas by turning the psychological screws. In other situations, equally grotesquely, the torture is simply a by-product of mass incarceration’s human warehousing function.
“Many of those in segregation simply should not be there,” Ontario’s Independent Corrections Reform Advisor Howard Sapers has found. “In most institutions, segregation is the default tool to manage individuals with mental health needs; those at risk of self-harm or suicide; the disabled and elderly who need mobility assistance devices; critically ill patients requiring close medical supervision; individuals who feel unsafe when left alone in general population units; and transgender inmates before in-depth placement and needs assessments can be completed.”
Even supposed care may end up being torture in another guise. In the name of containing the coronavirus pandemic, hundreds of federal prisoners (including many testing negative) were locked up incommunicado in solitary cells for almost 24 hours a day, without access to showers, fresh air, family members, lawyers or phones.
Yet the Canadian federal government claims, in response to legal challenges, that it no longer practices solitary confinement at all. Instead, the same old segregation cells have been rechristened as “structured intervention units,” little more than solitary by another name. Aliases for solitary confinement proliferate: “administrative segregation,” “special handling,” “special needs,” “therapeutic range” and now “structured intervention unit” — while the underlying reality remains largely unchanged.
In Ontario’s jails, meanwhile, the number and length of detentions in solitary have continued to rise, even in the wake of damning reports by official investigators. Segregation placements, defined as 22 hours per day in isolation, are meant to be periodically reviewed. But this requirement is circumvented by “restarting the clock” every time an individual is transferred to a different facility or allowed 121 minutes (exactly one minute over the threshold) outside the isolation cage.
As in Faqiri’s case, the fragmentation of the total system of violence — between different actors, labels, locations and time periods — enables the perpetration of injury without accountability.
Even the most progressive judicial decisions on solitary confinement in Canada restrict themselves to refining its administration, instead of abolishing it. For example, the common standard of a 15-day time limit — endorsed recently by the Ontario and British Columbia Courts of Appeal — would have done little to help someone like Faqiri, who was in solitary for “only” 10 days before he died. Perversely, “many attempts to improve conditions of confinement in solitary, or to limit its imposition on some vulnerable groups, have been reformist efforts, ultimately bolstering the legitimacy of the existing system,” criminologist Keramet Reiter warns.
Courts castigate some of the “cruel and unusual” excesses of mass incarceration, while the all too usual cruelties proceed unabated behind carceral walls.
State of Terror
What differentiates this highly organized system of terrorization from what is commonly called “terrorism,” represented as the paradigmatic category of illegitimate violence? Many of the features cited to distinguish terrorism from state violence in fact testify to the state’s far greater capacity to inflict harm.
“Terrorism” is criminalized in expansive and absolute terms; state violence is perpetrated in the name of the law.
“Terrorism” is defined as violence against civilians for political or ideological purpose; state violence, including mass incarceration, exalts and obscures itself as apparently apolitical and nonideological, a part of the seemingly natural order of the world.
“Terrorists” are depicted as extremist individuals; state violence is committed through a vast and complex network of actors and institutions, so structurally entrenched their brutality appears banal or even benevolent.
The eminent political scientist Charles Tilly described state-making as a “quintessential” form of “organized crime” — but one that operates “with the advantage of legitimacy” (self-conferred). While the term “terrorism” was originally coined in the 18th century to denounce the atrocities of the state, the concept of state terrorism has now all but disappeared, its once publicly staged spectacles of violence (torture, executions) now largely hidden behind physical, legal, informational, political and social walls.
And so, charities are listed as “terrorist entities” for donating medical equipment to Gaza, while governments arming civilian-massacring regimes like Saudi Arabia is considered “business as usual.” Indigenous land and climate defenders are impugned as “eco-terrorists” for burning tires in protest of colonial pipelines, while powerful governments and corporations torch the planet largely unchecked. Security experts speculate about “chemical and biological terrorists” attacking our water supplies, while decades of government-sanctioned mercury water contamination poisons Indigenous communities like Grassy Narrows. It is the “terror cell,” not the prison cell, that is imagined as emblematizing the terrorist threat.
As legal theorist Scott Veitch points out, there is a profound “asymmetry between the production of suffering and establishing responsibility for it — that exists and works always as an inverse proportion: the greater the suffering caused, the less responsibility can be established for it.”
The impunity for the torture and killing of Soleiman Faqiri demonstrates, yet again, that there is little justice to be found from the criminal “justice” system responsible for the crime; the system that inscribes terror with one hand while wiping its slate clean with the other.
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