By Dennis Cunningham, Michael Deutsch, & Elizabeth Fink
Prison Legal News
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This year, September 9th will mark the 40th
anniversary of the rebellion at Attica State
Prison in upstate New York. As one of the
prisoner leaders, L.D. Barkley, announced to the
world, the rebellion was "but the sound before
the fury of those who are oppressed." The sound
of Attica was heard cloud and clear, but the fury
at the time was reserved to the assault force:
several hundred violently angry white state
police and prison guards, who carried out the
massacre that ended the rebellion on September
13, 1971, with 43 men dead. The fury of the
oppressed themselves has been a work in progress since that time.
L.D. was one of many politically aware prisoners
in New York and elsewhere who identified with the
struggle for liberation world-wide, with
consciousness growing out the civil rights
movement, the urban uprisings of the 60's, and
the ideology and practice of Malcolm X and the
Black Panther Party. Much of it was given voice
in the writings of George Jackson and Eldridge
Cleaver, especially "Soledad Brother" and "Soul
on Ice", whose searing indictment of injustice,
racism, and cruelty in the prisons in California
echoed across the country, and inspired
resistance. A Manifesto demanding reform and
urging resistance had come out of California's
Folsom Prison in 1970 and made its way around the
Country and into Attica, and the prisoners there
had delivered one of their own to NYS
authorities, which was ignored, several months
before the rebellion. George Jackson was
assassinated at San Quentin on August 21, 1971; a
few days later the prisoners at Attica staged a
surprise protest at breakfast, during which
nobody ate and nobody talked. The guards were
stunned at the unanimity of it, and unnerved.
A number of the prisoners had been involved in
previous, smaller rebellions in the Tombs jail in
New York City and at the state prison at
Auburn,. Various chapters of political groups on
the outside had formed inside, including the BPP
and the Puerto Rican Young Lords, and the Black
Muslims had large, organized contingent at
Attica, as in all the prisons in the state at
that time. Political literature flowed freely,
and the groups were often able to gather in the
exercise yards and various work and other locales
in the institution. Grievances against the
guards, the administration and the system were
many, and widely shared, especially on the part
of the Black and Latino prisoners, who came
mainly from New York City, and almost all the
rest from other big city environments like
Buffalo, Syracuse, Rochester. The entire staff
at Attica at the time was white except for one
Puerto Rican officer, who worked in a watchtower
and had no contact with prisoners; and the
surrounding rural area of Western New York State
which they came from was mostly what some call
"up South", to denote the level of racial
antipathy and outright bigotry endemic in the
local population, and thus the prison work force.
At the same time, there was a strong and growing
belief among the prisoners that they had
clear-cut rights under the Constitution, that
guaranteed fair and decent treatment, and freedom
from discrimination; that, despite years of
peaceful petition and advocacy, their rights were
largely ignored by the prison administration; and
that many kinds of nastiness and brutality they
experienced from the white guards were a matter
of policy. Many prisoners had come to feel that something had to be done.
** ** **
** **
That morning of September 9th, a Thursday, after
rumors that two prisoners had been beaten when
taken to the hole the night before, a fight broke
out between a handful of prisoners and guards in
a hallway, when a door by which they would go to
the yard after breakfast was locked, and they
objected. A large number of other prisoners soon
filled the corridor, and managed to break open a
gate to the central connecting point between the
cellblocks, "Times Square", leaving large
sections of the prison open, and hundreds of
prisoners loose inside the institution. Staff
members began to retreat to the administration
building, but many were taken hostage by groups
of prisoners and finally brought together in one
of the four big, open exercise yards, D-Yard,
inside the square of huge, three story cell
blocks that formed the main prison, where
hundreds of prisoners were now
congregated. There it was quickly established
that the hostages, guards and civilians, would be
cared for decently, and protected at all costs,
and the large, disciplined Nation of Islam
contingent took responsibility for guarding them,
in a protected circle in the middle of the yard,
while the prisoners gathered in the far corner.
The prisoners quickly began to organize
themselves into groups, to form a representative
council and begin to talk things over, and decide
things. There were roughly 1280 prisoners in the
Yard. Several injured staff members were carried
on litters to a distant gate, beyond a
"no-man's-land" zone where there had been
rioting, so the authorities could get them to the
hospital. Thirty-nine guards and civilian
employees remained in the hostage circle. The
prisoners began to assemble a list of specific
demands, and to listen to speeches from each
other about the grievances they all shared. They
soon had make-shift society set up, to provide
protection, food, water and shelter for the
hostages, distribute rations and water, and keep
order among the large disparate crowd of men.
The prisoner leadership formulated and announced
a first list of 28 demands. Leading points
included replacement of two notoriously vicious
and incompetent prison doctors, and better
medical care generally, an end to prison
censorship, and slave wages, and for fairness in
the parole process. The leadership put out a
call for independent observers to come to the
prison, to intercede for them, and bear witness
to the merits of their grievances, and the good
faith of their desire to negotiate a peaceful
settlement. They asked that the nation's leading
civil rights advocate of the day, William
Kunstler, come to the prison and act as their
attorney. They named other prominent citizens
they knew were concerned with prisons or
prisoners in some way: State Assemblyman Arthur
O. Eve, perhaps the one public figure in the
state of New York who had previously expressed
public concern about the conditions and treatment
of prisoners at Attica; New York Times columnist
Tom Wicker, who had written about problems in the
prisons; New York State Senator John Dunne, head
of the Senate Committee which supposedly oversaw
the administration of the prisons, publisher
Clarence Jones of the Amsterdam News, Congressman
Herman Badillo, and many others, on a list that
grew and grew. Most of them came; as many as 50
were there at various times in the five
days. Kunstler arrived and went inside, to
raucous welcoming cheers from this eager, charged-up crowd of new clients.
The authorities first planned to go in
immediately, with state police forces that were
being assembled, and guards, to recapture the
yard; but instead, and to his short-lived credit,
the state Corrections Commissioner, Russell
Oswald, came from Albany to negotiate. With
several members of the press, and TV cameramen,
Oswald and his assistant Walter Dunbar went into
the Yard and sat down at the table with a council
of prisoners; they talked about the
demands. Oswald agreed to several of them and
promised to study others, and discuss them
outside and return. They were accompanied by
television cameras, and the spectacle of
prisoners controlling part of the prison and
publicly negotiating for humane treatment with
the Commissioner of Corrections, captured the attention of the American public.
When Oswald came outside the prison, however,
apparently not realizing that the prisoners would
see him on television, he denounced them for
refusing to release the hostages immediately;
they saw him, and saw and heard that he showed a
different face, and betrayed their trust. The
observers committee went inside and another day
passed in discussion of grievances and remedies,
and terms. A new set of three demands emerged as
the prisoners' terms for ending the
standoff: Point One: That the Warden, Mancusi,
be replaced; Point Two, That prisoners who wished
to, be removed and deported to "a non-imperialist
country"; and Three: That there be an Amnesty,
for all those involved in the rebellion, from
prosecution for crimes alleged as part of
it. Needless to say, this was much tougher to
negotiate. Oswald did not come back inside the
Yard after he was denounced. He met with the
Observers, but held out little hope of compromise.
Over the weekend a guard who had been hit in the
head in the early stages of uprising, when the
big gate broke and prisoners surged into Times
Square, died from his injuries. Now,
hypothetically at least, everyone in the riot was
responsible under the felony-murder rule, where
the felony was the riot; so now, amnesty became
the primary issue. The guards and state police,
waiting outside day after day, full of hostility
since the beginning and bombarded by false
rumors, were now seething; and the Observers felt
a massacre would take place if a settlement was
not reached. They urged Governor Nelson
Rockefeller to come to the prison and meet with
them, give assurances against mass prosecution,
and particularly to see the state of high emotion
the police forces were in, spoiling for the
attack. Several urged that he replace the
officers with National Guard troops, who had also
called out and were ready and much more prepared
to carry out a re-taking; but he wouldn't. He
did give an order that the prison guards stay out
of the assault force, but it was ignored.
The Governor declined to come. He told the
Observers on that Sunday he felt it would do no
good, that there was an impasse, and he had no
choice but to order an armed assault on the yard,
to rescue the hostages and put down the
rebellion. They convinced him to wait at least
until the next day, so that people at home on
Sunday would not see it on TV and start riots of their own.
After three days of fitful negotiations, during
which the hostages were safely guarded by the
Muslim prisoners, and the prisoner negotiators,
aided by the outside observers, attempted to
reach a resolution that would insure meaningful
changes, and amnesty from reprisals and
prosecutions, Governor Rockefeller moved to re-take the D-Yard by force.
Tom Wicker, Sen. Dunne, Congressman Badillo and
Clarence Jones, who had been friends with
Rockefeller for years, all warned him
urgently based on their harrowing passage each
day through the masses of heavily armed, white
prison guards and state police waiting just
outside the walls, their racist rage fueled by
false rumors of inmate atrocities that an attack
would result in a "bloodbath". Conventional
wisdom and plain common sense dictated waiting
until prisoners would tire of holding out, so
that some compromise for peaceable surrender
could be arranged, but the Governor ordered the
state police to prepare to attack. Rockefeller
still harbored presidential aspirations, and
obviously did not want to appear soft on
prisoners, or law and order generally; it was an
opportunity for him to make hay politically, and
he seized it. His only, wholly self-serving
"concession" was to postpone the assault from
Sunday to Monday morning. As Congressman Badillo
lamented bitterly afterwards, "What was the
hurry? There's always time to die."
** **
** ** **
That Sunday it rained all night; by morning
D-Yard was a sea of mud and everyone was soaked,
cold and miserable. Commissioner Oswald made one
last demand for surrender over the P.A.
system. Some prisoners took some of the hostages
onto the "catwalk", the one- story roof over the
long corridors which divided the interior yards,
crossing at Times Square. They stood spaced out
on two sides, blindfolded, each guarded by a
prisoner with some apparent stabbing device held
at the neck. Then an National Guard helicopter
flew low over the Yard; and some prisoners
believed it was Rockefeller, come at
last. Instead it blew a huge cloud of
military-grade CS gas into the mass of men and
mud; Oswald and the police commanders were told
by General O'Hara, the National Guard commander,
the CS would "put them on the ground", to defeat
resistance, and it did. Within seconds every one
of the 1300 men in the yard was face down in the
mud, gasping for breath; then the shooting started.
Marksmen on the high roofs opposite D-Yard
quickly felled everyone on the catwalk killing
two of the hostage shields themselves, and
several of their “executioner” escortsas
helmeted squads broke over and through the
barricades the rebels had built on the far
catwalks. One shield hostage, Attica guard
Michael Smith, shot four times in the gut by the
attack force, said his life was saved when the
prisoner holding him, Donald Noble , put his own
body in the way of the shooting, to shield
him. Michael Smith said he never understood why
his own people kept shooting at him, or in truth,
why the assault was necessary at all. He had
appeared on a TV broadcast the day before in
which several hostages had urged the Governor to
come to the prison and get things settled
peacefully, another plea the Governor spurned.[1]
As the squads came out on the catwalks above the
D-Yard, several with long guns took up positions
along the length of the roofs and began shooting
into the mass of men huddled in the mud, clearly
oblivious to the presence of the hostages in the
middle of the yard, several more of whom died in
that barrage. The "turkey shoot" lasted some
fifteen minutes, from when the snipers opened
fire to when the supposed covering fire ended,
and the squads of guards and state police swarmed
down ladders into the Yard. More than four
thousand rounds were fired, many of them dum-dum
bullets. One hundred-eighty-nine of the 1300-odd
men in the yard were hit, of whom 39 were killed,
29 prisoners and 10 hostages, counting those on
the catwalk, by rifle and shotgun fire. Several
more of both were maimed for life, because
of the denial and delay of medical care. Many
who died had been left to bleed to death, lying
in the mud. No records were kept of which
officers fired which weapons, and they made a
point of mixing them up afterwards and then
bulldozed all the evidence into a dirt pile in
back of the prison, so that the killers could not be traced.
White revolutionary Sam Melville, the alleged
"Manhattan bomber", was murdered in cold blood,
with his hands in the air in surrender, by State
Police Detective Vincent Tobia, who hurried along
the catwalk, stopped, aimed down, and fired a
shotgun into his chest from 15-20 feet away and
later testified proudly that he had done it. The
firebrand and prisoner spokesman L.D. Barkley was
also killed, with credible evidence that he was
seen alive after the retaking, but later
executed. The issue was never resolved.
Some three dozen ambulances had been mustered
outside, but they were reserved for the hostages,
whether or not they were injured. No medical
care had been planned for the prisoners and the
National Guard was forced to step in, without
advance preparations or any adequate
supplies. More than an hour after the shooting
stopped , Warden Mancusi called Dr. Worthington
Schenk, the head of emergency services at Meyer
Memorial Hospital, the big city hospital in
Buffalo and told him they had a problem he should
come look out. With no idea of the massacre he
was about to encounter, Schenk got two residents
and drove the 45 miles to Attica. Only when he
got there did he see the horror before him and
call back to Buffalo for emergency medical
services. Meanwhile at least six prisoners had
died needlessly, while scores lay in agony for
hours waiting for medical care. .[2]
After the shooting stopped, the officers on the
ladders were joined by many more coming through
the tunnels, as a small state police helicopter
circled overhead, with a loudspeaker booming
repeatedly, "Surrender to an officer. You will
not be harmed". The officers quickly began
clubbing the gasping, unresisting men to their
feet, including many who were wounded, and
driving them across the yard to a doorway in one
of the tunnels, across the tunnel and out the
door opposite into the adjacent A-Yard on the
other side. They had to go up five or six steps
to the door, across the tunnel, then back
down. Inside and out they were met with more
officers, who beat them and tore their clothes
off, took away glasses, watches, false teeth,
etc, then put them naked in a long snaking line
that wound slowly through the yard leading into
the other tunnel, next to A-Yard which led into
the A Cellblock, its cells now emptied to hold
them where a gauntlet awaited them. Those who
were considered leaders, the prisoner
negotiators, spokesmen and security men were
singled out for prolonged abuse and isolation.
As they waited in that long line which many
people have seen in the lurid photographs that
became hallmarks of that day, listening to the
cries of those who preceded them into the tunnel,
and the shouts and curses of the officers who
lined the tunnel with rifles and axe handles,
beating them, another preliminary torment was
also enacted upon them. There was one prisoner
everyone knew as Big Black (Frank Smith), a
maximum leader during the days in the Yard,
chosen as the over-all chief of security, and
head of the escort squad that protected Oswald
and Dunbar, and then the Observers, when they
moved in and out of the yard. Mostly a small time
hustler from the streets of Brooklyn, he had been
in Attica for several years basically because
of rotten lawyering, and conflict of interest,
whereby he got a sentence three or four times
longer than what he should have had but he had
not become involved in any of the political
activities or groups which had developed there,
except as audience. A large, dark-skinned man,
very direct but with a ready, friendly smile, he
coached the cellblock football team, worked in
the laundry, and was on good terms with everyone,
all groups; everyone respected him, even the
police. But they changed their attitude during
the five days, as he stayed at the center of
things, directing the security force, and turned
up repeatedly at the gate where the visitors came and went..
Now as the smoke cleared and the huddled men
started struggling up, officers came through the
crowd shouting for "Big Black! Where's Big
Black?". They found him, beat him and stripped
him, and took him across into the A-Yard. There
they laid him on a steel table near the door
where the curving line fed into the gauntlet,
with the middle of the back of his head at one
edge lengthwise, a and the other end reaching to
mid-thigh. They beat him more, especially in the
groin and testicles, cursing him loudly, and
stubbing out cigarettes on his body. Officers
stood above him on the catwalk and would hold
empty shell casings in the flame of a lighter
until they were too hot, then drop them on his
body. They put a football under his chin and
made him hold it against his chest, and told him
that if it fell he would be castrated, or
shot. They left him there for the others to see,
keeping it up for more than five hours, as the
line slowly snaked past him into the tunnel.
Inside the tunnel the floor was strewn with
broken glass for some 50 yards, to the A-Block
gate, and both sides were lined with officers
with ax handles, 2x4s, baseball bats and rifle
butts. The naked prisoners had to run, or, when
they were tripped or knocked down, stumble and
crawl the length of it, being struck and jabbed
repeatedly over the whole distance, by violently
freaked-out, cursing, sworn peace officers of the
State of New York, all white men. Inside the
cellblock they were herded up the stairs and into
the cells four or five men stuffed into single
cells, including many who needed medical
attention. There they remained, naked, ill fed,
and often terrorized through the night by
officers who came in with flashlights and
threatened to shoot them, frequently cocking and
dry-firing rifles, shotguns, and pistols at them,
and promising much more death and mayhem to come, for the next 3-4-5 days.
Big Black was finally taken off the table at
about four in the afternoon after about five
hours and over to the hospital, outside the main
building. There he was put in a small room with
several guards armed with clubs who resumed
beating and kicking him, on the floor, until a
National Guard medical officer chanced to open
the door and found him, and that was the end of
it. Twenty years later he broke down weeping on
the witness stand while describing this day, in
the class-action civil rights trial despite
having told the story many times when the memory
hit him full force; he was the first of several
witnesses this happened to in the trial.
Afterwards, a news photographer found and
recorded a pair of inscriptions, in separate
hands, written with a white marker on a dark
steel wall, that told the story. The top one
said: "Attika fell 9-9-71. Fuck you pig." Just
underneath that, it said: "Retaken 9-13-71. 32 Dead Niggers."
** **
** ** **
The prison officials falsely announced to the
world that the dead hostages had been killed by
prisoners slitting their throats, and
emasculating one of them, which they said they
had seen, and which left them "no choice" but to
attack. When autopsies showed that all hostages
died from gunshot wounds from the lawmen's
weapons, state officials denounced local
pathologist John Edl and as a communist, and tried
to discredit his findings. As Mark Twain said, A
lie will travel half-way around the world before
the truth gets its boots on: three years later,
when the Erie County population in and around
Buffalo was polled in preparation for jury
selection in the first criminal trials, it was
found that fully a third of the public still
believed that the dead Attica hostages had been murdered by the prisoners.
The truth could not be suppressed however, and
the massacre, one of the two or three largest
slaughters of Americans by other Americans since
the Civil War,[3] was acknowledged in an official
investigation, the McKay Commission Report.
There had been no plan to rescue the hostages,
they were simply sacrificed at the altar of race
hate, and, in aid of Rockefeller's political
ambitions, the need to make it clear that
resistance would not be tolerated. The U.S.
Court of Appeals denounced the so-called
"re-housing" of the prisoners after the assault as "an orgy of brutality."
To add insult to the grave injury, many of the
surviving victims of the massacre and torture at
Attica were later indicted by a local grand jury,
made up of friends and neighbors of the prison
guards, and run by a Rockefeller intimate, Robert
E. Fischer, a former judge now appointed as a
special attorney general, with a large task force
of lawyers and ex-state police cops as
investigators, which looked into alleged crimes
by the prisoners, and studiously ignored those of
the police and state officials. A later state
investigation uncovered intentional killing of
unarmed prisoners by the state assault force, but
was suppressed, and with the exception of one
hapless trooper, who was indicted for "reckless
endangerment", for discharging his shotgun twelve
times to “keep up the noise”, as he put it no
charges were ever filed against the police.
Sixty-two prisoners were indicted in December
1972, charged with more than 1400 felony counts
all together, more than half of which carried a
life sentence upon conviction. Lawyers and
activists from all over the United States came to
Western New York to defend them. Attica Brothers
Legal Defense (ABLD) was born, combining the
legal defense with investigation of the crimes of
the State actors, public education, and
fundraising, and justice for the Attica Brothers
became a nation-wide political issue. The main
demand was to drop the charges, and jail
Rockefeller and the police killers. Hundreds of
people demonstrated in Buffalo, where the trials
were to be held; thousands participated in one
great march in September, 1974, when the first
frame-up trials were about to start. Many of
those who came to work for ABLD, including the
authors of this article, had their lives
dramatically changed by the Brothers' example of
militancy and courage, and the reality of how far
the State was willing to go to suppress the
rights and righteous protest of prisoners. In
all, five trials (involving eight Attica
Brothers) were held with four acquittals and one conviction.
A national political campaign was initiated,
under the leadership of Big Black, whose
experience at Attica had transformed him into a
committed activist. Dozens of lawyers and young
people volunteered, organized and demonstrated,
forcing official investigations which exposed the
planning and cover-up of the killings and
torture. In late 1974 a young lawyer on the
special prosecutor's staff, Malcolm Bell, quit in
disgust after his efforts to develop cases
against officers were repeatedly blocked by the
higher-ups. He went to the New York Times with
his story, and soon a big expose appeared on the
front page, telling the world what everyone
involved in the case knew well: that the special
investigation was a completely one-sided
fraud. An investigation of the investigation was
launched, and, ultimately, a new governor, Hugh
Carey, was pressured to give amnesty to the
indicted Attica Brothers, and clemency for two
who had already been convicted calling the Attica
prosecutions the "darkest day in the history of
New York jurisprudence." Twenty years and tens
of thousands of work-hours later, despite the
concerted efforts of the state officials to delay
and defeat any public accounting for what was
done, a class-action civil suit on behalf of the
Brothers in D yard was tried in federal court in
Buffalo. For the first time the full extent of
the killing, brutality and denial of medical care
inflicted on the men of Attica was publicly exposed.
The jury found that the rights of the class
members were denied in the assault, and by the
brutality inflicted upon them after the prison
was retaken, but split, and hung, over whether
any of the four officials on trial were
responsible; they assigned blame for the beatings
in the yard and the tunnel, and other tortures
done that day, to just one assistant warden, Karl
Pfeil, the only one of the four who was part of
the planning and then personally oversaw the
brutality in the yard and the tunnel. They hung
again on responsibility for the torture as to the
other three defendants: Commissioner Oswald, who
had died; Major Monahan of the State Police,
commander of the assault force, also deceased;
and the Warden himself, Mancusi. At a subsequent
trial for damages another jury returned an award
of $4 million in damages for Big Black, and a
third verdict awarded $75,000 to David Broesig,
selected as an example of someone who suffered
the average level of harm common to all prisoner
class members not singled out for special vengeance after the assault.
Refusing to resolve the case, the State appealed
the liability verdict; and the Second Circuit
Court of Appeals, still beholden to the legacy of
Rockefeller and obviously determined to protect
the State of New York from liability for the tens
of millions of dollars the two damage verdicts
showed that the Brothers were entitled to, and to
block the sensation of so much money being paid
to rebellious convicts refused to recognize the
legal validity of the class of prisoners, and set
the jury verdicts aside. Faced with the
impossibility of returning the Square One with
1200-odd individual cases, as ordered by the
Court, and the likelihood of further prolonged
delay, uncertainty, and clearly impossible
expense, the Brothers still involved in 1999
bowed to an inadequate settlement, for a total of
12 million dollars including attorneys fees for a
quarter-century of legal work. This meant that
most of the survivors got paid a few thousand
dollars, which, in light of the two damage
awards, was a wretched pittance for what they went through.
** **
** ** **
For a time, the horrific events at Attica,
followed by several other less publicized prison
uprisings and riots elsewhere, fueled nation-wide
efforts for prison reform. Programs for prisoners
and ex-prisoners were instituted throughout the
country and for the first time people began to be
sympathetic to the rights of prisoners, and to
realize the importance of realistic efforts at
rehabilitation. Prisoner rights legal programs
were established in almost every state and many
prison reform and watchdog groups sprung up. It
was a period of political militancy and unrest
throughout the country, and there were the
beginnings of awareness in many sectors of the
population that prisoners were subject to
widespread mistreatment and abuse by their
captors. Even the federal courts often as a
result of prisoners acting as their own
lawyers had begun to recognize for the first time
that prisoners had constitutional rights, to due
process prior to discipline and parole denial,
first amendment access to literature and mail,
and freedom from cruel and unusual punishment in
the form of deplorable prison conditions.
But it didn't last. Before long the renewed
emphasis on prisoner rights, and prison reform,
began to evaporate in the heat of the nascent
‘war on drugs’ especially in New York, with the
infamous Rockefeller Drug Laws and “tough on
crime" politics generally. In the mid 1970's a
series of decisions in the U.S. Supreme Court
gutted the protections earlier envisioned as
guarantees of prisoners' welfare, and dignity,
and instead sanctioned supposed due process
rules, which prison officials could satisfy by
simply creating bureaucratic procedures and paper
records in dealing with complaints and
disciplinary actions, which in fact rarely if
ever were decided in prisoners' favor, and never
when it was the prisoner's word against the guard's.
And, rather than implement programs of
rehabilitation, prison technocrats throughout the
country began to develop special solitary
confinement units control units with sensory
deprivation cells, where they isolated people
they identified as activist and politically aware
prisoners. Public support for reform and
rehabilitation waned, and Attica for many was
just past history. Then, as time went on,
mandatory sentencing, increased penalties for
drug crimes, gang proscriptions and an epidemic
of "three-strike" laws and other sentencing
"enhancements", resulted in a virtual
incarceration explosion in America. Dozens,
really hundreds of new prisons were built, all
over the country, replete with every phenomenally
complex, expensive, high-tech electronic security
and surveillance system and device that anyone
could invent, especially if it could be sold to
government in large quantities. From 1972 until
the present the total U.S. prison population
increased from about 400,000 to more than
2,300,000 today, as the prison-industrial complex
has blossomed into big business, with big corporate profits.
During that time, the upswing in popular
consciousness flowing from the disgrace and
vanquishing of Nixon, and the end of the Viet Nam
war as well as response to earlier events like
the shootings at Kent State and Jackson State,
along with Attica soon leveled off in Gerald
Ford's "stagflation", and the weirdness of the
Carter presidency, suddenly blown up by the
hostage crisis in Iran. Then came an election in
which besides being snookered by Reagan agents in
a secret deal with the Iranians to hold the
hostages until after the election, to deny him
the campaign triumph of bringing them home Carter
was simply over-matched. More to the point,
Reagan and his ad agency handlers ran an overtly
racist campaignbrazenly kicking it off in
Philadelphia, Mississippi, site of the notorious
slaughter of three young civil rights workers in
1964, and denouncing "welfare queens" and
supposed freeloadersappealing shamelessly to the
prejudice of white working-class people in cities
filled with "Reagan Democrats", and trumpeting
the politics of anti-communism and crime, while
building the atmosphere of fear and selfishness
in which those politics would thrive; as they did. The backlash had arrived.
From there on“We’re going to move this country
so far to the right you won't recognize it,"
crowed the Congressman-turned-Reagan Budget
Director David Stockman, as he began to engineer
the first of the preposterous tax cuts for the
rich people and big corporations that led to the
Country’s present evident bankruptcygovernance
was more and more a matter of conscious stage
management. The perfect actor was in the
presidential role, and he set a tone of
truculence, and unyielding, moralistic harshness,
with unmistakable racial undertones, that was
perfectly adapted to the emerging uses of mass
incarceration. As the American population came
to identify more and more as the "Me Generation",
and activist elementsbeleaguered by FBI
"counterintelligence" (COINTELPRO) and kindred
programs of repression all over the
countrylargely drifted into the by-ways of
identity politics, administrators of growing
bureaucratic empires in state prison departments
systematically set aside what federal judge
Marvin Frankel once identified as an "elementary"
understanding, that "people are sent to prison as
punishment, not for punishment."
Finally, the larger trend was sealed with the
awful story of Willie Horton, by the ghastly,
successful, racist exploitation of it in the 1988
presidential campaign of George Bush the elder
(first former head of the C.I.A. to become
president)and to a important degree, just about
every campaign for high office thereafter. The
'lock-em-up & forget 'em' mentality became an
article of faith across the political spectrum,
and has flourished.[4] Rehabilitation, education
and training programs wilted, everywhere, with
the supposedly excessive costin the growing “big
government is the problem” atmosphere always the
cover story. In reality, prisons old and new
were filling up with drug offenders, and alleged
members of "criminal street gangs", who were
growing up on streets where the would-be
revolution of the 60s and 70s was now played out,
and a flood of illicit drugs played in;
apparently a great deal of it by the CIA and
associated instrumentalities of capitalist
culture. The politics that had been rife in the
prisons at the time of Attica gave way to
internal red-blue rivalries among both Latinos
and Blacks, and inter-racial conflicts, often
systematically promoted and manipulated by
jailors who were well aware that "if they're
fighting each other , they're not fighting
us" With such an approach, the prison system
became the focal point for a much-heightened
level of social control of populations,
especially Black and Brown men, who were
increasingly crowded out of a shrinking labor
market, as whole industries continued to be
dismantled, exported, and made obsolete.
Outside, anti-drug propaganda and legislative
scourgings of drug and gang defendants suffused
the public sphere. The Supreme Court did its
part with one anti-human ruling after
anothermeaning decisions where the iron law that
power corrupts people was studiously
ignoredgranting the jailors and wardens more and
more arbitrary power and discretion over the
intimate daily lives of convicts, shrinking
further and further the process of any
accountability for, or recourse from, the many
perverse ways they used that power, and teaching
the lower courts to defer to prison officials
whenever possibleagain barely showing even the
slightest awareness of the likelihood that the
power they conferred would be abused. In the
midst of this transition, the Control Unit paradigm continued to gain strength.
Possibly the first control unit as such was
established in what was then the federal maximum
security institutionthe notion of “maxi-maxi”,
now morphed to "supermax" was just coming into
playat Marion, in downstate Illinois, also a
substantially "up South" region. Prisons had
always had solitary confinement units for
punishing rule violations, but the idea here was
different, namely, that certain prisoners had to
be permanently separated from the general
population, because of their supposed influence
on other prisoners. At Attica before the
rebellion, prisoners overtly involved in prison
and political issues or organizing were just
beginning to be recognized, and grouped together
dealt with together; indeed it was just such a
grouping, from a certain tier, "5th Company",
including Sam Melville and L.D. Barkley and
several others killed on the 13th, that started
up with the officers in the tunnel when they
found the door locked, and brought on the
riot. At Marion, authorities decided that
certain prisoners associated with protest inside,
or political causes on the outside, or both, men
respected by other prisonersas well as some
whose resistance was more directly acted out
should be subjected to programs of "behavior
modification", in the form of prolonged
isolation, with basically uncertain terms for
release, whereby they could be conditioned to
submission, so to speak; which is to say, broken.
The idea caught on. The courts, predictably,
accepted it; determining that as long as the
prisoner was let out of doors for an hour or so
each day, or maybe every other day, he could be
kept locked up alone all the rest of the timeor
at least until he would be deemed by officials to
have satisfied some gobbledegook standard or
prescription for correct conduct, or had served a
peremptory minimum term, perhaps fixed by the
government shrinks who now began to appear in
profusion, to certify the supposed need for this
new regimen in general and in each case. All the
officials had to say was that confinement in the
unit was not intended as punishment; and they
were quickly learning how to pronounce whatever
formulaic justifications and rationales the courts said they needed to hear.
Soon isolation units were being established in
prisons everywhere, and it was not long before
they were being specially constructed in new
prisons. An early refinement was construction of
isolation cells which each had its own adjacent
outdoor space, to eliminate the need to move
prisoners outside their cells. These were "dog
pens" were similarly cramped (usual cell size
would be 6x8 feet, the little yards maybe 6x10)
with nothing but high, blank walls and a patch of
sky, which the sun or moon might or might not
ever pass over. The front doors of the cells
would be solid, maybe with a pattern of small
holes for ventilation, and a meal slot, openable
from outside only, where the food is shoved in on
a tray, and where you have to back up and stick
your hands out behind you through the opening, to
be cuffed and chained, before you can ever come
out for any reason. Many cells are painted white
entirely, and some are reputed to have rounded
angles at the tops of the walls, so the eyes are
deprived even of the tiny stimulus of a ceiling
line. Usually a light is kept burning all the
time. In the SHU at Pelican Bayan isolation
unit inside an isolation prisonyou’re permitted
your "appliance", a small-screen TV which also
picks up (and is sometimes rigged by staff to not
pick up), one or more local or regional radio
stations; and you have a small space
for property, including the boxes of your
transcripts and legal materials (if these have not been confiscated).
These units came to be all the rage in U.S.
"penology", especially as gangs and supposed
gangs began to proliferate during the 1980's; and
before long whole prisons were being designed and
built for long term solitary confinement, based
on so-called "classification", and typically
located as far as possible from population
centers, to discourage visiting and promote the
feeling and pressure of isolation. The federal
government built one in the Colorado mountains,
at Florence; Illinois put theirs at Tamms, all
the way at the other end of the state from
Chicago, and California put one as far away from
Los Angeles as they could get; about 780 miles
north, at Pelican Bay. Again, many of the
locations chosen were distinctively "up South"
And if you build it, you have to keep it full, to
justify the trouble and expense; so you have to
have a steady supply of dangerous characters you
can classify as in need of segregation from the
others, in long-term lockdown; "the worst of the
worst" is the ominous description always
used. As the prison population swelled in the
80's and 90's, and the great red vs. blue gang
rivalries developed on the streets and inside,
prison officials more and more used supposed
"validation" of gang membership as the criterion
for assignment to "special housing units", and,
like other political figures, used propaganda
about the supposed menace of the gangs, and the
difficulties and dangers of dealing with them, to
encourage and maintain public indifference to
what prisoners were going through inside.
SHU isolation obviously falls short of the vile
regimen of dogs, nakedness, hoods, and the rest,
ordained by Bush, Cheney, Rumsfeld, and worked up
by the Army and the CIA at Abu Ghraib, Bagram and
all those places they had for prisoners taken in
the U.S. wars in Iraq and
Afghanistan. Nevertheless, particularly in light
of the manifest intention to degrade and break
those subjected to it, and the institutional as
well as individual disposition to de-humanize
them, it absolutely qualifies as torture under
both U.S. and International Law. Particularly
with respect to alleged gang members who are
locked down, there is the added feature that the
regimen of enforced isolation and sensory
deprivation is explicitly designed to extract
information, in the form of so-called
"de-briefing" of information about the gang and
other gang members, which brings it still more
solidly within the legal definition of
torture.[5] Indeed in California and other
places, de-briefing, and the Catch-22 the demand
for it creates for prisoners marked by
authorities as gang members, and confined in the
SHU on that basis, has become a burning issue
within the larger issue of long-term confinement
generally. De-briefingin which the prison
"intelligence" officers will insist that your
betrayal of the gang and gang members be so
abject and complete that "they will never accept
you back”puts a target for vengeance on your
back for life, as everyone knows, and also
greatly endangers your whole family on the
outside; and most prisoners understand that,
regardless of the promises they make, sooner or
later the police will leave you exposed; and the
likelihood is you'll be in solitary again until
then. It is not a realistic optionas the
authorities well know, much as they also know
that after years on end in the SHU there's
nothing much a prisoner can know about gang
action that’s of any use at allstill that is the
impossible hoop they hold up for these men to
jump through. Some have been confined the whole
time the tormentarium has been open; 20 years,
and even before that. No wonder there were no scruples at Abu Ghraib"
** **
** ** **
Most recently, first in Georgia, then briefly in
Ohio, and now in California just this summer
(2011), prisoners held in long-term isolation
units were driven to the point of mass hunger
strikes; and prisoners in the SHU at Pelican Bay
were able to organize theirs despite their
concerted isolation. The PB strike plan drew
unified support across racial lines inside, a
remarkable development, and accomplishment, which
apparently helped the message to spread to other
prisons up and down the state. The strike was
planned ahead for weeks, and for once there was
strong, effective support outside, resulting
particularly in broad coverage in the press,
usually so oblivious to conditions in the
prisons.[6] The brothers who initiated it said
they were hoping maybe three or four hundred
people at Pelican Bay would participate, then
after about two weeks more than six thousand
prisoners, in at least 12 institutions statewide,
had refused meals in support of the strike and
its core demands; including an end to the de-briefing requirement.
After three weeks, an assistant commissioner came
from Sacramento and sat down at a table with
prisoner representatives, and also allowed them
to hold a conference call with a team of outside
negotiators that had formed to help and intercede
for them. Some token concessions were made
regarding living conditions, along with a promise
that the need and possibility for changes in the
SHU system would be discussed within the state
administration, and further talks would then be
held. Believing they had made real progress,
especially in gaining public attention and
getting a promised hearing on SHU conditions and
policies scheduled in the State Assembly, the
prisoners agreed to accept these assurances, in
good faith but without illusions, and see what
would happen. The four strike leaders sent out this message:
We'll see soon enough where the CDCR is really
coming from. More important is the fact that
while the Strike is over, the resistance and
struggle to end our subjection to human rights
violations and torture in the SHU is just
beginning!! We've drawn the line on this, and
should the CDCR fail to carry out meaningful
changes in a timely fashion, we will initiate a
class action suit and additional types of
peaceful protestwe will not stop until the CDCR
ends illegal policies and practices in the SHU.
We're counting on all of our outside supporters
to continue to collectively support us, and carry
on shining a light on our resistance in
here. This is the time for change in these
prisons, and the movement to do so is growing
across the land. Without the people's support
outside, we can not be successful!! All support,
no matter the size and content, comes together as
a powerful force; we've already brought more
mainstream exposure about these SHUs than ever
before, and our time for real change to this
system is now!!! (emphasis added)
It is true that, in keeping with the increasing
dog-eat-dog reality of American life in general,
street gangs in many places, and drug dealers
everywherein the predictable chaos arising from
the country's failure to learn from its
experience that prohibition doesn't
workdisrupted society and often preyed on their
own communities. But the fact is, a substantial
majority of prisoners are jailed for non-violent
offenses, and are themselves victims of a racist
system that denies them opportunities for
education, and any real chance at all for decent jobs.
Moreover, most prisoners will be released at some
time, despite the huge sentences so heedlessly
put on so many of them. If they don't receive
education and training in prison, and instead are
maltreated, disrespected and hopelessly idle and
bored; and then there are no jobs upon their
release, the cycle of crime and incarceration
will obviously continue; as it has. To our
enormous cost in all ways. Currently, almost
two-thirds of prisoners who get out commit
another crime within three years of release. In
California, huge numbers are returned to prison
for the most minor, non-criminal infractions of
parole conditions, as a matter of policy, decreed
by the State's punishment overlords. Only now,
because of the tax-debt-budget crisis fomented in
the political sphereand in California,
certainly, the recent decision by the U.S.
Supreme Court to uphold a lower court order,
after many years of litigation, that the State
must move or release some 30,000 prisoners,
almost one-fifth of its total, to relieve
over-crowdingis there renewed impetus to look
seriously at who is sent to prison, why and on
what terms, and what happens to them when they're released.
Despite the difficult climate, prisoners continue
to organize and protest inside; and, finally,
hopefully, as the depredations of the rich
classes on the society as a whole awaken the
conscience of more and more people, especially
youth, there is a rejuvenation of support groups
on the outside. The recent protests embodied in
the hunger strike and its public support,
following earlier work inside and outside
challenging the gouging of prisoners and their
families by phone companies, in cahoots with
"corrections" officials, are examples that show
that the spirit of resistance is still alive.
It should be clear to us, however, that a prison
reform movement based on the fiscal needs of
different governments will not bring about real
change. Unless we begin to de-construct the whole
system that denies real opportunity to so large
and growing numbers of people, and transform the
class-based and racist enforcement structures of
the criminal justice system, prisons will
continue to be used as warehouses, and torment
centers, for those who are expendable in the
larger political economy, especially those who
act out their resentment or resistance in any
way. We need a movement that demands an end to
discrimination and exploitation, as well as
draconian prison sentences, conditions and
treatment, and fights for equal opportunity,
education and decent jobs. Prisons should be
reserved for only the truly dangerous, always
with the goal of rehabilitation and release, and
with adequate resources provided to bring both about in positive ways.
We do well to hearken back to the revolutionary
spirit that motivated the Attica rebellion: a
demand for justice led by those who are
oppressed. But we must remember as well the
message from the Brothers at Pelican Bay: Without
the people's support outside, we cannot be
successful!! As Big Black said: Wake Up
America! Nothing comes to a Sleeper But a Dream!
********************8
Dennis Cunningham, Michael Deutsch, and Elizabeth
Fink, along with Joseph Heath, were staff
attorneys at Attica Brothers Legal Defense in
Buffalo throughout the criminal trial phase which
ended in February, 1976. They continued as
lawyers for the Attica Brothers in the civil suit
that was begun in 1974 and finally ended in 2001.
[1] Michael Smith remains a stalwart witness
for and friend and supporter of the surviving
Attica Brothers, four decades afterwards, and
will be present in NYC to join in the 40th anniversary commemorations.
[2] The famous pathologist Michael Baden
reviewed the autopsy reports and testified in the
trial in 1991 that Sam Melville and L.D. Barkley,
both wounded in the lungs, both might well have
been saved if they had received timely medical
attention when the shooting stopped.
[3] More people were slaughtered by the U.S.
Army at (the first) Wounded Knee, for example, in
1890, and at Sand Creek, Idaho, in 1875; and as
many or more probably also died in the race riots at Tulsa in 1921
[4] In the 90's Bill Clinton, the hustler
president, aiming as he did so often to beat the
reactionaries at their own game, flogged and then
signed the so-called Anti-terrorism and Effective
Death Penalty Act (AEDPA), which basically shut
down federal relief from wrongful convictions of
state prisoners; and the Prison Litigation Reform
Act, in reality a litigation suppression act,
which put huge, really malicious and legally
perverse impediments on civil rights lawsuits by
prisoners, and lawyers trying to represent them.
[5] The Geneva Convention Against Torture
states: PART I , Article 1, 1. For the
purposes of this Convention, the term "torture"
means any act by which severe pain or suffering,
whether physical or mental, is intentionally
inflicted on a person for such purposes as
obtaining from him or a third person information
or a confession, punishing him for an act he or a
third person has committed or is suspected of
having committed, or intimidating or coercing him
or a third person, or for any reason based on
discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a
public official or other person acting in an
official capacity. It does not include pain or
suffering arising only from, inherent in or
incidental to lawful sanctions. * * * *
Article 2 , 1. Each State Party
shall take effective legislative, administrative,
judicial or other measures to prevent acts of
torture in any territory under its
jurisdiction. 2. No exceptional circumstances
whatsoever, whether a state of war or a threat of
war, internal political instability or any other
public emergency, may be invoked as a
justification of torture. 3. An order from a
superior officer or a public authority may not be
invoked as a justification of torture.
U.S. Law, Title 18, Sec 2340 of
the U.S. Code is more restrictive, requiring
infliction or threat of pain, or forced drugging
or some similar extension beyond simply "any act"
by which severe mental pain is inflicted"
[6] Indeed the mighty New York Times itself
has granted coverage, and, belatedly as to PB but
in terms that were admirably straight from the
shoulder, considering, demanded that long-term
isolation be ended. See, "Cruel Isolation", NYT
editorial, August 1, 2011 NEED LINK In
contrast, the close-by supposedly liberal San
Francisco Chronicle was happy to banner-headline
the low-life propaganda smear from the
authorities, that the
always-handy-to-take-the-blame gangs were
enforcing the strike; then were silent on the
whole affair when a peaceful compromise was
reached, obligating CDCR to consider real
changes, and negotiate further, to end the
strike. That's not news, in their commanding
view, meaning it's not something positive about
these supposed ‘worst of the worst’who our state
holds in such deep torment that they begin to
starve themselves in protestthat they have any
interest in having their readership learn
about See, "Gang ties alleged in hunger
strike" (full-page headline, Bay Area section, July 14, 2011)
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