34923_hlc 49-2 Sheet No. 123 Side A 06/09/2014 15:03:23 . : IST TOPIA . H U 1 AST ONTEMP L J. C HE Harvard Civil Rights- , T , 43 79 (1975). – OYN M 277 06. Nevertheless, the question IE – D AMUEL one guard and three inmates S at 104 — IME TO See id. , A T The bloody conflict has rightfully at- The bloody conflict has rightfully 2 ICKER NTRODUCTION W I OM Andrew B. Mamo* T (2010). leaders from Moyn argues that, while African American and by ties to both the nascent international human and by ties to both the nascent international for constructive feedback and support. the 1971 Attica Riot the 1971 3 “We Are Taking Up Where the Movement of the 1960s Left Off”: The “We Are Taking Up Where the Movement of the and to the growth of political movements like Black and to the growth of political movements 4 ISTORY H IGHTS IN Inmates of the Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 15 (2d Cir. 1971). Inmates of the Attica Corr. Facility v. Rockefeller, Stephen Tuck, R The events at Attica did not occur within a vacuum.The events at Attica did not occur within and 1960s late The The hands on the clock stopped at 9:43 a.m. on September 13, 1971, clock stopped at 9:43 a.m. on September The hands on the notorious prison riots in Ameri- Attica was the scene of one of the most This account is taken from See See For a recent study focusing on the 1970s as a formative moment in the creation of the 1 2 3 4 Right of Our Birth”: Violence and Rights in and Rights Violence of Our Birth”: Right * J.D. Candidate, Harvard Law School, 2014. My thanks to Tomiko Brown-Nagin and the had died during the uprising). “The Dignity and Justice That Is Due to Us by to Us Due Is That Justice and Dignity “The UMAN — tracted attention.the overt violence of the uprising and the retaking But set of arguments made by prisoners have diverted attention from a complex the prison, situated within (and regarding the everyday violence within against) a framework of rights. use of rights language was expanding early 1970s were a period in which the stimulated by the legacy of the to even the most marginalized communities, civil rights movement rights movement H 637, 641 (2008). of the origin of rights mattered within the prison, and the ties to human rights mattered within this space. the late ’60s through the early ’70s contrasted the language of human rights against civil rights, these appeals to human rights were a dead end. when the electricity went out at the Attica Correctional Facility (“Attica”) in went out at the Attica Correctional when the electricity York.New A- positioned on the rooftops of the prison’s State troopers were Block and C-Block.D-Yard, releasing gas on the A helicopter flew over the the hostages they held.gathered inmates and the that hoped inmates The to be. ensure their own, but this was not hostages’ lives would As the in- fired. the ground with the hostages, the riflemen mates dropped to (twenty-nine inmates and ten hos- can history, in which thirty-nine people Nelson Rockefeller ordered the state tages) were killed when Governor others police to retake the institution (four Proliferation and Power of African American Protest During the 1970s Proliferation and Power of African American international human rights movement, see generally members of the 2013 Legal History Workshop, and to the editors of the members of the 2013 Legal History Workshop, Civil Liberties Law Review \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 1 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 123 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 123 34923_hlc 34923_hlc 49-2 Sheet No. 123 Side B 06/09/2014 15:03:23 R R . , S- at EV , 21 : E Id. LACK It is 1986, – 6 Hutto v. B L. R RIEDMAN 6 (1961). HE – SYLUMS OWA , 1971 4 : T I M. F , A IOTS Labor Unions for , 78 R NMATES ABYLON I This Note focuses OFFMAN B 7 AWRENCE RISON 36 (1977). For an analysis G L and the eventual nar- – THER 9 AY IN O RVING : U.S. P D E (1992). see also EW IEGE 16. 09 (1993). S , N 1 (1993) (describing the many kinds of 15; – 1975 – – – ATIENTS AND 305 The Allure of Individualism EBERG EFORM P , 1965 TATES OF D S , AN ISTORY ENTAL Cruelty, Prison Conditions, and the Eighth Amend- . J.L. R note 5, at 15 V H ULTURE Lawyers at the Prison Gates: Organizational Structure Lawyers at the Prison Gates: Organizational note 5, at 13 M ICH C IMBALL This Note situates the various claims about vio- This Note situates the various claims supra ILLIAM , K 10 supra Owen M. Fiss, U. M , MERICAN W See A ETER MERICAN , 27 IMBALL 881 (2009). Legal remedies also narrowed.a describes Fiss Owen ITUATION OF . A IMBALL & P S EV the replacement of reform-minded prison wardens with the replacement of reform-minded Sharon Dolovich, 8 & K Susan P. Sturm, SEEM & K OCIAL See generally U SEEM 963 (1971). . S UNISHMENT IN U SEEM ERT P EV SAYS ON THE U B This was also a moment in which popular faith in the expert admin- the expert faith in popular in which a moment was also This OVEMENT AND contain: the war on drugs had not yet been declared, nor was mass not yet been declared, war on drugs had contain: the N.Y.U. L. R Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 125 Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 5 M See generally , 437 U.S. 678 (1978).prison litigation stands out as an exemplar, While the Arkansas This Note provides an intellectual history of the relationship between an intellectual history of the relationship This Note provides Several elements of the larger story of American prisons in the 1970s the larger story of American prisons Several elements of See See in See the analysis of prisons as “total institutions” See generally See . L. R not , 84 9 10 5 6 7 8 see also UFF RIME AND OWER also essential for a twenty-first century reader to realize what this moment to realize what this century reader for a twenty-first also essential did incarceration reshaping the meaning of prison. reshaping the incarceration of 1971, focus- in American prisons during the summer rights and violence ing on the Attica riot.to recount the entire history of the It does not attempt of rights was mobil- a narrower look at how the language riot, but is instead the prison. understandings of violence within ized and shaped by Struggles both inside and forms and operated on various levels, for rights took various led by both inmates and lawyers. outside of the courts, on the methods available for inmates to speak, rather than on the substance for inmates to speak, rather than on the methods available of their complaints. of organizing among demise of unionization as a form are well known: the inmate laborers; rowing of Eighth Amendment prison conditions jurisprudence after its initial rowing of Eighth Amendment prison expansion in this moment. lence and rights made by prisoners, directly and through legal counsel, lence and rights made by prisoners, 74; Goffman summarized the social function of these institutions as follows: “Many total institu- Goffman summarized the social function of these as storage dumps for inmates, but . . . they tions, most of the time, seem to function merely organizations designed consciously . . . as usually present themselves to the public as rational avowed and officially approved ends.” effective machines for producing a few officially legal intervention in prisons). those eager to demonstrate being “tough on crime”; those eager to demonstrate being “tough 965, 965 (1992). at 13 (1989). B istration of social institutions was turning to a more skeptical appraisal of the appraisal skeptical to a more turning was institutions of social istration suggesting of individuals, lived experience institutions on the effects of transcended the physical. and violence that of control some recognition ment connecting labor organization to prison riots, see generally Paul R. Comeau, connecting labor organization to prison riots, Prison Inmates: An Analysis of a Recent Proposal for the Organization of Inmate Labor Prison Inmates: An Analysis of a Recent Proposal and Corrections Advocacy C P 532Power. Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 2 9-JUN-14 13:37 turn away from structural injunctions as remedies since 1974, spearheaded by Justice Rehn- quist. toward these injunctions, he identifies a few Of the major exceptions to the skepticism key cases, including one following from the influential line of Arkansas prison cases: Finney it was also highly unusual. 34923_hlc 49-2 Sheet No. 123 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 123 34923_hlc 34923_hlc 49-2 Sheet No. 124 Side A 06/09/2014 15:03:23 OL- M. , 44 C See gener- EBECCA GE OF 87 (2003). R – A AKING OF THE ISCOVERY OF THE M D xlvii (2002). Heather 13 (2006). – HE 1555, 1578 . , T AND THE It stands in sharp con- and before mass incar- EV , at xlvi MERICA 12 13 , If so, should recourse still If so, should recourse A OTHMAN . L. R 11 NCARCERATION IN THE OLITICS I EPUBLIC ARV , P J. R H R ASS EW : M AVID NEQUALITY IN ROTEST N D , 116 The rhetorical and intellectual space I ROW 14 : P C IM at 466 (2008). J EW N 1941, ISORDER IN THE – MPRISONMENT HE UNISHMENT AND Inmate Litigation D I , P , T , 1776 Mass Incarceration and the Paradox of Prison Conditions Litigation ESTERN RISIS OF TATE 731, 735 (2010). RDER AND . Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 533 S W C LEXANDER O EV HE A R (2010). ENAL Y RUCE ’ , T OCIAL ORBLINDNESS B P Margo Schlanger, OC : S The confluence of these events suggests that prison litigation, by providing a floor for The confluence of these events suggests that Rebecca McLennan observes that by the mid-twentieth century, most northern prisons Rebecca McLennan observes that by the mid-twentieth See See ICHELLE The Attica prison movement was a moment of possibility for expanding was a moment of possibility The Attica prison movement ENNAN & S 14 11 12 13 M L C SYLUM MERICAN AW trast to our contemporary situation. ceration would become a major social phenomenon. ceration would become a major social be found in the courts by appealing to positive rights recognized by the state, by appealing to positive rights recognized be found in the courts was indepen- appealing to human rights whose validity or in the streets by dent of the state? is to examine how the range of The aim of the Note that existed in and responding to prison violence possibilities for theorizing specific civil narrowed to a framework that recognized the early 1970s was the state, obscuring deeper claims.rights named by It is a story of disillusionment. rights that has since passed. 1971 represented the crossroads: the The year grow sharply moment before prison litigation would for articulating claims about justice in prisons began to narrow in the early for articulating claims about justice 1970s.to the spectacle of violence and revolt helped chan- Media attention form invoked within the prisons nel rights claims from the more capacious set of claims prohibiting overt, physi- by the inmates themselves to a limited cal conditions of cruelty and barbarism. ally M L Schoenfeld makes a similar argument that prison conditions litigation in Florida encouraged the construction of new prisons and the expansion of incarceration by presupposing the legiti- macy of confinement, even as it required more space and better treatment for prisoners. Heather Schoenfeld, inhumane conditions, may have legitimated in some way the explosion of incarceration as a inhumane conditions, may have legitimated tool of social control. Consider David Rothman’s observation in his history of the prison: “[T]he legitimacy accorded the asylum lowered the standard of behavior considered suffi- ciently troublesome to justify confinement.” had shifted toward the modern disciplinary model of “privileges to be gained and lost through had shifted toward the modern disciplinary model technologies of physical force.” good or poor conduct . . . underwritten by new A A 2014] rights the civil both through of rights-consciousness the development amidst movements. its successor and movement courts had addressed After the condi- brutality and inhumane such as physical of violence, overt instances with find the proper language inmates was to new challenge for tions, the the arbitrary of violence: to the background describe and respond which to and of dehumanization, the pervasive feeling of arbitrary rules, application violence. possibility of overt form of the latent terror in the courts Could the protect prisoners this background violence as they protect prisoners from from overt brutality? that terror, dehumanization, and Or was the problem to modern incarceration? violence were inherent \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 3 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 124 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 124 34923_hlc 34923_hlc 49-2 Sheet No. 124 Side B 06/09/2014 15:03:23 AK- RISON M ROMISE Part I P P 15 Not nec- OLICY 377 (1998). OST 17 P even those ADICAL L R — HE S ’ RISONS , T P UDICIAL S OREGROUND ’ , J F UBIN OLUBOFF ALIFORNIA MERICA C G A L. R ISA 18 R ALL OF F DWARD EFORMED R ACKGROUND AND & E ISE AND R : B OURTS EELEY HE C AW , T L M. F OW THE UMMINS : H C ALCOLM M RIC Should a more skeptical approach be taken? Should a more skeptical approach be TATE E S (2007). 16 253 ODERN IOLENCE AND THE M 157 (1994). IGHTS ING AND THE OF Al-Jundi v. Mancusi, 926 F.2d 235, 240 (2d Cir. 1991) (“[T]here is considerable Al-Jundi v. Mancusi, 926 F.2d 235, 240 (2d R I. V See James Park said of George Jackson, “Jack- For example, San Quentin Associate Warden Malcolm M. Feeley and Edward L. Rubin note that “[t]hroughout the process [of For an approach similar in spirit on this point, see For an approach similar in spirit on this point, The response to Attica has tended to focus on the spectacle of violence The response to Attica has tended to After analyzing the space of possibilities that existed for thinking about for thinking that existed of possibilities the space analyzing After IVIL 16 17 18 15 the acts of the rioters and the state’s response to those acts. the acts of the rioters and the state’s My aim is to C OVEMENT — situates American prisons within American society.within American prisons situates American were inmates While social movements. ties to wider bars, they maintained isolated behind This lawyers, and the role of law, conversations about prisoners’ Part foregrounds prisoners’ in light of rights movements, in their burgeoning legal argument confinement. heard outside the world of institutional strong desires to be the conditions of life space of possibilities for addressing Part II analyzes the within the prisons. of prison conditions litigation It first describes the state approaches could of what lawyer-driven, court-centric to ascertain the limits have achieved. were less tied to the law: first, It then turns to options that courts as a site for of Martin Sostre, which used the through the litigation of prison theo- to the state; second, through the writings radical opposition appealed to social Jackson and Eldridge Cleaver, who rists such as George the negotiations mobilization; and third, through movements and political the Attica Liberation Faction.and declarations of Part III walks through at Attica: the stream of the failed negotiations and rioting various outgrowths reform movement.of litigation and narrowing of the prison Are the inmates reliable narrators? essarily. the rights claims that inmates made in the early This Note amplifies debates on the retaking of the 1970s, pushing back against the deafening claims about rights and about justice prison, and against the notion that lawyers. could be heard only when spoken by distinguish the violent events of the summer of 1971 from the grievances distinguish the violent events of the claims about rights and justice.that inmates wished to express and their By traditional narratives foregrounding the violence of the riot, irony in the argument of prison officials, who have in their custody scores of prisoners con- irony in the argument of prison officials, who that the testimony of criminals is incredible victed on the testimony of disreputable criminals, unconstitutional conduct.”). as a matter of law when it accuses them of son was a hoodlum. personable hoodlum. He was a sociopath, a very shit a give didn’t He about the revolution.” prison conditions litigation], only minimal efforts were made to determine what was important to the prisoners themselves. plaintiffs’ attorneys . . . tended to assume that they knew what The was best for prisoners.” M 534 that suggests this Note of rights, the basis and incarceration of the violence Review Rights-Civil Liberties Law Civil Harvard riot. pull of the due to the narrative were narrowed these possibilities [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 4 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 124 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 124 34923_hlc 34923_hlc 49-2 Sheet No. 125 Side A 06/09/2014 15:03:23 R R S ’ 22 ONFI- C The His- MERICA : A , Kenneth R. MERICAN A See, e.g. 117, 119 (Joy James ed., RISIS OF NTELLECTUALS This Part situates pris- This Part situates I C 20 HE note 14. : T EBELLION 23 R supra at 8.at the literature on “total See also MPRISONED , I Id. AND 53 (1983). IOLENCE , in V , condemn to the background the pre- the background to the condemn in OTHMAN , HANGE — R section II.D. . C IBERATION By focusing on the Attica takeover to the on the Attica By focusing OC note 17. , L infra 19 IFE July 4th Address L supra , note 6; and . L. & S EV A. The Geography of the Prison supra RITE ON , UMMINS W C Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 535 N.Y.U. R OFFMAN , Assata Shakur, G , 12 RISONERS DENCE This ambition could never be fully met, and the gaps between the This ambition could never be fully P Selective Incapacitation and the Effort to Improve the Fairness of Existing Sentenc- 21 See, e.g. This justification is typically referred to as “incapacitation.” For more on this process, see See generally As Henry Steele Commager observed in 1971, “[v]iolence is commonly, though not As Henry Steele Commager observed in 1971, 5 (Hugh Davis Graham ed., 1971).ed., Graham Davis (Hugh He also observed that “[t]he elementary fact which 5 It is essential to understand the topology of the prison network in order the topology of the prison It is essential to understand 20 21 22 23 19 OLITICAL ons within American society and within American law in the early 1970s, society and within American law ons within American by which inmates background on the possible means providing important could take action. to see the connections that linked American prisons across state lines, and that linked American prisons across to see the connections to those outside. the controlled spaces within prisons the ties that bound was to isolate and control in- One of the primary reasons for incarceration mates. exclusion of inmate rights claims, even sympathetic outsiders inadvertently even sympathetic of inmate rights claims, exclusion that they sought and from obtaining the broader attention prevented inmates conditions of confinement. normalized the ordinary 2003). ambition and the reality reveal something fundamental about the challenges ambition and the reality reveal something facing prisoners in the 1970s. among American prisons The connections would reverberate elsewhere: a mani- meant that developments in one prison jails was later modified by inmates in festo drafted in the New York City and then yet again in Attica. Folsom State Prison (“Folsom”), California, Feinberg, ing Practices glares at us from every chapter of our history and stares out at us from every page of our daily glares at us from every chapter of our history of violence in our history and soci- paper is that the major, the overwhelming, manifestations ety have been, and still are, official. In America violence is clad in the vestments of respecta- law.” bility and armored with the authority of the universally, equated with lawlessness; it is almost always physical in the ostentatious sense of universally, equated with lawlessness; it is almost a particular moment.inflicting bodily harm or physical damage at we all But violence, as from this.”know, is, or can be, something quite different Commager, Steele Henry tory of American Violence: An Interpretation P Inmates were also in dynamic relationships with outside social movements, Inmates were also in dynamic relationships the Black Power and Chicano including the ongoing civil rights movement, movement. Power movements, and the antiwar 2014] the inmates to sympathetic that are operations. their normal course of in the prisons within violence existing which the of Attica, in perverse in the context is particularly This outcome to air their and the public attention of the media sought the inmates expressly on back- was already focused attention at a time when scholarly grievances of violence. ground instances \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 5 9-JUN-14 13:37 institutions”: 34923_hlc 49-2 Sheet No. 125 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 125 34923_hlc 34923_hlc 49-2 Sheet No. 125 Side B 06/09/2014 15:03:23 R . 29 FFICIAL (1994) O HE ARM AND THE : T AWYER F L (1972). 08 (1972) [hereinaf- TTICA – A TORY ADICAL S ARCHMAN Prison officials (in- Prison officials 106 Y R 24 ”: P : M TTICA A But local culture still mat- But local culture IFE AS A TTICA 28 LAVERY L Y , A S 24. – , M HAN SWALD T OMMISSION ON C ORSE UNSTLER G. O note 5, at 23 , “W PECIAL M. K USSELL S R supra , 96 (1996).96 This description of a “plantation model” indicates Local realities meant that different strategies might Local realities meant that different strategies SHINSKY ILLIAM TATE 30 S Part II. The circulation of individuals established connections The circulation of W , 26 USTICE IMBALL M. O ORK J Y ]. AVID & K ROW EW across the country, inmates followed the results of litigation in inmates followed the results of litigation across the country, section II.B. D C 27 N , EPORT IM SEEM R J U Outsiders, including lawyers and activists, visited prisons, often lawyers and activists, visited prisons, Outsiders, including AY even if this culture had local variants. even if this culture Jackson, George X, Malcolm 25 K In the two pages that the McKay Report devotes to this background, it sketches the In the two pages that the McKay Report devotes See generally infra See, e.g. See See infra For Oswald’s history, see See generally, e.g. Inmates recognized that their interest in the wider society was not al- Inmates recognized that their interest us!Brothers! . . . The world is hearing The world is seeing our struggle! proof before your eyes! . . . Look at these And here’s the here at our call, brothers, men from all over this country coming Texts also circulated widely in prison, bringing ideas into the prison widely in prison, bringing ideas Texts also circulated There were two main types of connections among prisons and between prisons and among of connections main types were two There C — 27 28 29 30 24 25 26 M RDEAL OF EPORT OF THE cluding New York State’s Commissioner Russell Oswald) also circulated Oswald) also Commissioner Russell York State’s cluding New prisons in multiple often having careers in multiple within the network, states. tered: for example, the Southern prisons were built on a plantation model, the Southern prisons were built on tered: for example, be necessary in different states. ways reciprocated. walls of the prison, permeable though they may The have been, did keep out passive observers.had they that knew inmates The to speak loudly in order to be heard.riot, Attica the during example, For the Attica inmates, addressed the other Herb Blyden, one of the leaders of served a larger project of amplifying prisoners to explain how the takeover grievances: ter among carceral spaces and the outside. among carceral spaces culture within pris- vice versa), and creating a shared from the outside (and ons (and outside of mattered in prisons across the country and Angela Davis prisons too); Arkansas, New York, and California closely. Arkansas, New York, that southern prisons remained shaped by the complex history of race, incarceration, and lega- cies of slavery. crossing state lines. experience of the “new kind of inmate” whose consciousness was shaped by riots, by social experience of the “new kind of inmate” whose social movements, and whom “[t]he increasing changes in inner cities, college campuses, and touched . . . .militancy of the black liberation movement had Names like Malcolm X, George special meaning to him.” Jackson, Eldridge Cleaver, Angela Davis had R O and the prisons of New York and California ultimately housed the most radi- and the prisons of New York and California cal prison populations. 536circula- and the of individuals, transfers world: direct outside and the prisons Review Rights-Civil Liberties Law Civil Harvard and ideas.tion of texts Martin Sostre, described inmates (such as Many [Vol. facili- transferred between prison, and were also in and out of below) rotated 49 or security classifications because of changing given state, either ties in a prison. within a given specific incidents because of \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 6 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 125 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 125 34923_hlc 34923_hlc 49-2 Sheet No. 126 Side A 06/09/2014 15:03:23 R R R 36 TTICA RVINE A note 33, at note 33, at U.C. I , 1 supra supra , 32 , Other important ETTERS FROM 35 TTICA , L TTICA A A . . . . We are left with ELVILLE M and sought court orders to get 31 33 ETTERS FROM ETTERS FROM L AMUEL L S in in in ]. TTICA access to the media A He listed some of the most important rights for He listed some of the most important 34 Conceptions of Law in the Civil Rights Movement ETTERS FROM L note 1, at 50. Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 537 supra , both in terms of the personal career ambitions of lawyers and in both in terms of the personal career — at 147. ICKER 641, 643 (2011). . B. of Law and of Politics Prison as a Legal Space: The Roles W this boundary in historical accounts, For a statement on the importance of maintaining Letter from Sam Melville (Jan. 30 1971), Letter from Sam Melville (Apr. 17, 1971), Letter from Sam Melville (May 7, 1971), Id. Lawyers could play critical roles. Samuel Melville, the “Mad coming here to witness firsthand the struggle against racist oppres- against the struggle firsthand witness here to coming sion and brutalization. they can tell the to show them so We got these walls! goes on behind world what inmates and lawyers was complex.The relationship between in- The 43. EV 31 32 33 34 35 36 – issues included: an overhaul of the parole system, an end to political censor- issues included: an overhaul of the parole rehabilitation, education, and easier ship, higher wages, programming for he concluded, “the list is endless.” access for visits from families, but, political reading material. inmates to secure.to inmates First came “ before the public.” nothing except riots to bring our plight Bomber” and a member of the Weather Underground, wanted a lawsuit “to Bomber” and a member of the Weather test [the prison’s] stupid brutal regulations,” see Christopher W. Schmidt, L. R 133 (1972) [hereinafter 142 146. 2014] remained world nevertheless this marginalized the prison walls, In spite of to the rest of society.connected of all available Inmates took advantage order to be audience in could reach an outside which they avenues through heard.with prison wardens and officials When possible, they tried to work formal grievance of corrections, either through at state departments informal avenues of communication.processes or through But they also process to imple- courts, worked through the political filed lawsuits in the and contributed to the statehouses, wrote to the press, ment change through public activism fighting for change in the streets through social movements and demonstration. \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 7 9-JUN-14 13:37 mates tended to appreciate the need for lawyers who understood how courts mates tended to appreciate the need in ways that would be legally cog- worked and who could frame arguments nizable.time, many were skeptical that lawyers shared their At the same interests terms of their larger social agendas.prisons American in problems The in political terms, or as some combina- could be described in legal terms or tion of the two. sharp distinction between the two may not be tena- While a their situation. ble, it still influenced how inmates perceived 34923_hlc 49-2 Sheet No. 126 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 126 34923_hlc 34923_hlc 49-2 Sheet No. 126 Side B 06/09/2014 15:03:23 R 37 vio- 40 — note 33, at supra , TTICA Three months later, Three months A 38 ETTERS FROM L in 214 (1972). IARY D TTICA , in Melville’s description, underlay the prison experi- , in Melville’s description, and that the agitation within the prison was less about and that the agitation within the prison , A — OONS 39 terror 48. a lawyer certainly makes the He appreciated that “correspondence with – R. C at 147 at 148. ILLIAM Id. Id. Letter from Sam Melville (Aug. 30, 1971), W Got t[he] letters & suit draft.Got t[he] letters & weak. seems It T[he] only substan- censorship.is point tive must somehow work into it t[he] We provocative live under in prison: t[he] basic terror that people surface suddenly striking a solid brick or steel quality of a club forward accompanied by a roar to lockin, just behind [yo]u, march, etc. What these men want is somebody to talk to them, some sign there What these men want is somebody to the helm.are real human beings somewhere at a pass could You any difference.thousand new laws, it wouldn’t make They know are never any better than the that laws and rules and regulations people administering them. But you have to start somewhere . . . William Coons, a writer and a less politically engaged inmate at Attica, William Coons, a writer and a less politically Inmate writers in California tended to be more skeptical of the potential Inmate writers in California tended to After outlining the important changes that could be brought through be brought could that changes the important outlining After 37 38 39 40 at 148. in August 1971, he seemed more open to the possibility of continuing a possibility of continuing more open to the 1971, he seemed in August the deeper issues: questioned whether it could address lawsuit, though he reform than about recognition: pigs more wary of leaning on a man and for that of course i [sic] want you to keep in touch.” Id. ence and contributed to the background of violence.ence and contributed Specific manifestations important, but in some sense epiphenomenal of overt violence were the background into the foreground lence constantly threatened to leap from of prison life. have been less about laws than about noted that the basic problem may human connection 171. Coons suggested that the nature of the institution was dehumanizing; legal Coons suggested that the nature of the prison superficially, but would not ad- reform could change the form of the inmates and prison officials dress the structural problems that prevented humans.from relating to each other as fellow Only to the extent that offi- to care about the human problems of cials within the prison could be made come about. the prison could meaningful change prisons.for law to meaningfully improve the of one Clutchette, John This miasmatic 538because involved being personally from away backed reform, Melville legal Review Rights-Civil Liberties Law Civil Harvard potential.” education and to [his] political was “peripheral the lawsuit [Vol. who had out other inmates that the lawyers seek suggested instead Melville 49 multiplicity recognizing the projects for longer, legal reform been pursuing action. of multipronged and the utility of approaches \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 8 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 126 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 126 34923_hlc 34923_hlc 49-2 Sheet No. 127 Side A 06/09/2014 15:03:23 R R R R R F I AY — See K in C , ETTERS M (1975). L ESISTANCE note 42, at in GAINST THE See AVIS R A D . supra ] AW , L OICES OF NGELA in , : V A ORNING ORNING M as a project within the project within as a M 47 216, 227 (Robert Lefcourt ed., ORNING 16. In New York, the Hughes RIAL OF – T M reform HE OURTS : T OME IN THE C OME IN THE C C OME IN THE 5 (1972). REAKS HEY HEY C B T YE T F F I I E HEY Y Even if the lawyers did not disagree with Even if the lawyers in Letter from Sam Melville (Aug. 1971), RDER AND THE T , 44 F M note 42, at 211, 214 ORNING I , O See in M Ruchell and Angela Want to Represent Themselves Instead of working through the prison adminis- working through Instead of AW supra HE 42 L , LOOD IN , T , B From Dachau, Soledad Prison, California noted the limitations of of the limitations noted 41 43 ORNING 45 EMYSTIFY Prison Interviews note 33, at 169. PTHEKER M ACKSON D Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 539 A note 17, at 165. supra L. J note 27, at 31. Margaret Burnham, , ETTINA supra FROM As she awaited trial, she described the tension between relying on a As she awaited trial, she described the SSAYS TO B , at 139.at Sam This dismissal of “reform” was not limited to the California prisons: supra EORGE OME IN THE TTICA 46 , : E G George L. Jackson, Jackson.Jonathan Jackson was the brother of George For the context of the trial, see Angela Davis, The Soledad Brothers were three inmates (John Clutchette, Fleeta Drumgo, and George The Soledad Brothers were three inmates (John Letter from John Clutchette, Id. The court system in this country is increasingly becoming a pow- The court system in this country is increasingly erful instrument of repression. . . . [W]e can’t expect justice from sure that an exclusively legal- a repressive judicial system and I’m be fatal.istic approach to my defense would So what we have to on trial. do is to talk about placing the courts Perhaps the clearest expression of this ambiguous relationship with expression of this ambiguous relationship Perhaps the clearest George Jackson, perhaps the most preeminent prison theorist, reflected the most preeminent prison theorist, George Jackson, perhaps A C 44 45 46 47 41 42 43 (Angela Davis ed., 1971) [hereinafter EPORT UMMINS HEY EOPLE his positions, Jackson believed that they might be deterred by social or pro- believed that they might be deterred his positions, Jackson fessional pressure. tration or state legislatures or the courts, Clutchette believed the only hope believed the or the courts, Clutchette state legislatures tration or and sup- [inmates’] protest endeavor to hear lay “in the people’s for reform port [their] cause.” 1971). prisons: “[I]t would be reactionary to our position here to support the ram- support the here to position to our reactionary would be “[I]t prisons: bunctious call for prison reform . . . far as to call it a You can even go as .. . word. dirty on the wall the frame reform] means changing [Prison picture itself.” but not the lawyer for her defense while challenging the legal system itself: lawyer for her defense while challenging C lawyers was expressed by Angela Davis in the context of her criminal trial by Angela Davis in the context lawyers was expressed takeover of a Marin County court- for participating in Jonathan Jackson’s house. on his experience at trial to suggest that most lawyers would be unable or at trial to suggest that most lawyers on his experience to several black to oppositional projects: “I talked unwilling to contribute me. this last case of pig killing hung on lawyers when I got off started We Anglo-Saxon law, abandoned me the moment I attacked agreeing, but they Blues . . . .” capitalism and the generally Jackson) at Soledad prison in California charged with the murder of John Mills, a guard. Jackson) at Soledad prison in California charged Melville also disparaged the term. P 177. to view the P.D. as a worse enemy than the As her attorney put it, “Blacks have come prosecutor.” T felt Committee on plea bargaining found that many inmates felt victimized and that inmates that they were victims “of a mindless, undirected, and corrupt system of justice.” R 136 2014] Brothers,” “Soledad \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 9 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 127 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 127 34923_hlc 34923_hlc 49-2 Sheet No. 127 Side B 06/09/2014 15:03:23 R R F I , 97 in , AW L Nomos and Narrative HROUGH T 45. – 48 , if one must be renounced IOLENCE V right This Part sketches the intellectual world 50 ? . . .. . ? [M]y limited knowledge of the note 42, at 237, 244 IGHTS AND R supra pro se , note 32, at 643. ORNING Notes for Arguments in Court on the Issue of Self-Representation supra M DDRESSING 4, 40 (1982) (“[T]he jurisgenerative principle by which legal meaning . EV the categories blurred. As a result, legal representation was neces- II. A Schmidt, — ee Leaning too much on the law would be a mistake, but there were also Leaning too much on the law would OME IN THE Angela Davis, S On the relationship between jurisgenerative processes of hermeneutics, jurispathic The inmates recognized a fundamental tension between programs The inmates recognized a fundamental law would be used as an excuse for denying me the opportunity to as an excuse for denying me the opportunity law would be used efficacious defense. put on my best, most Rigorously speaking, neither is a Rigorously speaking, the other.in order to exercise penalized because I do Should I be necessary knowledge, experience or expertise not possess the legal to proceed entirely . L. R 49 C 48 49 50 ARV HEY of the prison, paying attention to key opportunities for action: large-scale of the prison, paying attention to key and accompanying structural in- civil rights or prison conditions lawsuits political mobilization in a radical junctions; inmate-led civil rights lawsuits; tone.tone; and mobilization in a more cooperative options available The incarceration at the time.spoke to the myriad ways of understanding I elab- in this Part: First, some approaches orate on the following distinctions conditions as comparable to acts of treated the issues in ordinary prison dangers in refusing to speak its language. H aimed at legal reform and those striving for thorough reconstruction.aimed at legal reform and those striving This creating a space for imaginative re- tension was both incredibly generative, and unstable, as illustrated by the sponses to the problem of incarceration, traumas of the summer of 1971. proliferates in all communities never exists in isolation from violence. Interpretation always takes place in the shadow of coercion.”). processes of legal decision, and violence, see Robert M. Cover, T sary but insufficient.The boundary between the legal and the political remained significant as an analytical spheres was blurry in practice, but tool. In Davis’s view, trial was neither a strictly political matter nor a strictly legal was neither a strictly political matter In Davis’s view, trial matter 540 for the her agent as would function attorney that her Davis understood While lawyer. to a cede control want to did not trial, she of the purposes But she Review Rights-Civil Liberties Law Civil Harvard representation. without legal want to face trial also did not She explained [Vol. while also her own defense in shaping to actively participate that she needed 49 existed be- tension that the fundamental access to an attorney; maintaining her rights to able to exercise required that she be and her lawyer tween Davis simultaneously. to self-representation counsel and to an Giving up the right trial, while giving up her unprepared for the rigors of attorney would leave message of her trial would deny the political the right of self-representation to the legal frame: and its opposition \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 10 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 127 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 127 34923_hlc 34923_hlc 49-2 Sheet No. 128 Side A 06/09/2014 15:03:23 R R — Margo See 55 note 44. supra , 277, 278 (Edmund note 29, at 241. How- 54 supra ACKSON J , EFLECTIONS R in SHINSKY , O See generally 10; – often with a lingering threat of vio- often with a lingering 51. — Third, if the courts were not the right Third, if the courts – Id. 52 addressed prison conditions in this way in this conditions prison addressed 51 , note 11, at 9 Critique of Violence , supra , note 17, at 250 ENJAMIN supra ENNAN Holt v. Sarver Holt , L B Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 541 C M section II.B. , ALTER cases); (3) using political tactics as expressed through theory cases); (3) using political tactics UMMINS W C e.g. , These strategies could build upon each other, generally by pointing build upon each other, generally These strategies could 53 300 F. Supp. 825 (E.D. Ark. 1969). See infra See See See This Part describes the space of responses to the structural violence This Part describes the space of responses Prisoners’ rights cases came to particular prominence in the late 1960s Prisoners’ rights cases came to particular cases); (2) using political tactics in the courtroom (with the example of cases); (2) using political tactics in the Sostre 51 52 53 54 55 A. and the Eighth Amendment: Law as Remedy Prison Conditions securing notable improvements, but also taking the form of incarceration for the form of incarceration but also taking improvements, securing notable granted. the violence of incarcer- that treated among the approaches Second, targeted of social control matter, as a form more of a political ation as could be remained where this the question and radicals, against minorities contested. courts litigation in the an example of how Sostre provides Martin to correct an essen- political resistance rather than a way could be a tool of system. tially defensible carceral space, what was?to build upon political and social Prison theorists sought about change movements to bring lence. Jephcott trans., 1978).trans., Jephcott “[Both natural law and positive law agree that] just ends can be at- tained by justified means, justified means used for just ends. Natural law attempts, by the justness of the ends, to ‘justify’ the means, positive law to ‘guarantee’ the justness of the ends through the justification of the means.” to the existence of more radical options as a means of compelling coopera- more radical options as a means of to the existence of tion. grievances at Attica took an inter- The negotiations and declarations of while also pursuing implicitly referencing prison theory mediate position, of rights. that could be described in the language more specific aims The perspective on contained a richer, more complex Attica movement therefore them.facing inmates and on the ways to address both the problems Inmates the law; abstract rights mattered less had a very immediate relationship with than specific opportunities for action. The question of the origin of rights or natural law; it related to the was not a theoretical matter of positivism a practical matter. question of what options existed as within the prison, following the above typology: (1) using the methods of within the prison, following the above conditions (with the example of the civil rights litigation to correct inhumane Holt the and George Jackson); and (4) using (with the examples of Eldridge Cleaver and declarations of rights (at Attica). political tactics through negotiations ever, as Margo Schlanger notes, the early cases were not only from the South. and 1970s, after the early victories of the civil rights movement.and 1970s, after the early victories of Much of South and addressed the toxic brew of the early litigation came out of the politics of the region. race control, forced labor, and the changing 2014] as illegal.courts recognized that brutality physical rights civil major The as such lawsuits, \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 11 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 128 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 128 34923_hlc 34923_hlc 49-2 Sheet No. 128 Side B 06/09/2014 15:03:23 R R R 57 . L. The supra ICH , note 14, M , 97 supra RIEDMAN F See , 404 F.2d 571 (8th Cir. 404 F.2d at 579 (Black- Schoenfeld, See is justified. see also ”), the first case in this series, ”), the first case in “Nor Cruel and Unusual Punishments cases, but does not aim to provide an 839 (1969), which claims that there is a . , 387 F.2d 519 (2d Cir. 1967), the mental Jackson v. Bishop EV Holt Holt I Malcolm M. Feeley & Van Swearingen, (“ See Holt v. Sarver . L. R 59 433, 469 (2004); . ALIF C , 247 F. Supp. 683 (E.D. Ark. 1965), opened the window , 247 F. Supp. 683 (E.D. Ark. 1965), opened the EV note 18, at 61. by prison Note, however, that the response , 57 Wright v. McMann L. R 387 F.2d at 526. In In the years leading up to the Attica riots, the to the Attica riots, leading up In the years supra ACE , 56 P See Holt v. Sarver UBIN 58 , 24 Talley v. Stephens & R 14. This section focuses on the – Judge Jesse Smith Henley in the Eastern District of Arkansas Henley in the Eastern District of Judge Jesse Smith EELEY 60 Beyond the Hero Judge: Institutional Reform Litigation as Litigation Beyond the Hero Judge: Institutional Reform F Trop v. Dulles, 356 U.S. 86, 101 (1958) (“The Amendment must draw its meaning Trop v. Dulles, 356 U.S. 86, 101 (1958) (“The In Arkansas, 300 F. Supp. 825 (E.D. Ark. 1969). See See be unconstitutionally punitive and the rec- The recognition that prison conditions could The foundation for much prisoners’ rights litigation was the Eighth was litigation rights prisoners’ for much foundation The a series of conditions doctrine was defined through The scope of prison 1994, 2029 (1999). The significance of the southern cases was revealed later, as their 58 59 60 57 56 . EV attacked the system of close confinement within Cummins Farm at the Ar- of close confinement within Cummins attacked the system kansas State Penitentiary. ripe for prison reform: Robert The time was was generally con- Commissioner of Corrections, Sarver, the reform-minded their case against assisting the plaintiffs in preparing sidered to have been the state. note 9, at 313 Eighth Amendment was coming to protect against both direct abuse by against both direct to protect was coming Eighth Amendment conditions of incarceration. punitive and unconstitutionally prison officials R appointed two lawyers to represent the litigants: Philip Kaplan, a northern to represent the litigants: Philip appointed two lawyers shift in the meaning of “cruel and unusual” in the transition from English law to American shift in the meaning of “cruel and unusual” law. read as While claiming the mantle of “original meaning,” Granucci’s article is better the Eighth Amendment in these years. indicative of the uncertain ground for interpreting from the evolving standards of decency that mark the progress of a maturing society.”); from the evolving standards of decency that (1910) (“In the application of a constitution, Weems v. United States, 217 U.S. 349, 373 of what has been, but of what may be.”).therefore, our contemplation cannot be only For Granucci, more background, see generally Anthony F. Inflicted:” The Original Meaning Prison Conditions Cases and the Bureaucratization of American Corrections: Influences, Im- Prison Conditions Cases and the Bureaucratization of American Corrections: Influences, pacts and Implications for prison litigation, but lawsuits were also occurring in other states. for prison litigation, but lawsuits were also mun, J.). 1968), physical brutality in the form of whippings was unconstitutional in part due to psycho- 1968), physical brutality in the form of whippings and degradation. logical factors such as the generation of hatred ognition that physical acts could be unconstitutionally punitive for their mental consequences ognition that physical acts could be unconstitutionally came almost simultaneously. In a finding of unconstitutionality; rather, such suffering of solitary confinement did not ground of “subhuman conditions” such as forms of mental suffering were additional consequences exposure to the elements. overview of this entire legal movement. to officials to prison conditions litigation may be fundamentally different from their responses litigation.rights prisoners’ more Prison conditions litigation can result in prisons securing resources within the bureaucratic contests of the state, while prisoners’ rights cases can result in a loss of autonomy for prison officials. at 760. conditions reform being supported by the cor- For a contemporary instance of prison broad scope and continued judicial supervision was affirmed; most inmates in 1971 would broad scope and continued judicial supervision own states.likely have been focused on litigation in their the Among civil rights lawyers, been more apparent, and as those civil rights importance of the southern cases would have lawyers led these large cases, the focus on Schlanger, 542 strictly than more to encompass been read gradually has which Amendment, Review Rights-Civil Liberties Law Civil Harvard punishments. physical [Vol. 49 recog- was a judicial cover inhumane conditions of the law to The expansion as through level, as well on an environmental cruelty could exist nition that specific acts. But there were limits. cases in Arkansas. \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 12 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 128 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 128 34923_hlc 34923_hlc 49-2 Sheet No. 129 Side A 06/09/2014 15:03:23 R R R R R ”) in EELEY F See Holt II Sharon Dolovich (“ 64 Id. 66 In Texas, Inmates and note 10, at 891. note 57 and accompanying supra . See supra Holt v. Sarver . The court reasoned that prison The court reasoned 65 Dolovich, 63 See Jackson note 18, at 61 The jailhouse lawyers had launched the lawyers had The jailhouse and The Eighth Circuit upheld Judge Henley’s supra 62 , 67 Wright note 18, at 61. UBIN & R supra , Nov. 22, 2013, at A29. , at 833 (“[The situation of confinement in Arkansas] is mentally at 833 (“[The situation of confinement in Arkansas] . IMES EELEY UBIN F Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 543 & R N.Y. T , note 18, at 62. , 309 F. Supp. at 373. revealed some of the problems facing the Arkansas prison sys- facing the Arkansas some of the problems revealed , 300 F. Supp EELEY The Judge ultimately found that the system of close confinement of close the system found that Judge ultimately The F supra at 365. However, it is somewhat disingenuous to say that this comprehensive attack at 385.at “Let there be no mistake in the matter; the obligation of the Respondents to 61 , 309 F. Supp. 362 (E.D. Ark. 1970). Id. Holt II Id. See Holt I lead attorneys shared the surname of the Feeley and Rubin note the irony that one of the One cannot consider separately a trusty system, a system in which separately a trusty system, a system One cannot consider bad together in large numbers in open barracks, men are confined meaningful isolation cells, or an absence of a conditions in the program of rehabilitation.things exist in combina- All of those a cumula- other; and taken together they have tion; each affects the of their status. tive impact on the inmates regardless Holt I 64 65 66 67 61 62 63 UBIN 1970, “the first time that convicts have attacked an entire penitentiary sys- that convicts have attacked an entire 1970, “the first time either State or federal.” tem in any court, conditions had to be viewed in their totality as that was how the inmates be viewed in their totality as that was conditions had to conditions: experienced those supervision of the system as long as was “necessary to provide reasonable supervision of the system as long as process, but Judge Henley, Commissioner Sarver, and the plaintiffs’ attor- and the plaintiffs’ Commissioner Sarver, Judge Henley, process, but of reform. dictate the agenda neys would violated the Eighth Amendment. violated the tem, but its successor case addressed the question of appropriate remedies. of appropriate addressed the question its successor case tem, but shaping this doctrine was The key opinion in was at the urging of the convicts; Henley and Sarver were also urging this move. was at the urging of the convicts; Henley and and emotionally traumatic as well as physically uncomfortable.and emotionally traumatic as well as physically It is hazardous to health. It is sensibilities, and, in the Court’s estimation, degrading and debasing; it offends modern amounts to cruel and unusual punishment.”). Note that Judge Henley based this finding on between the two.both mental and physical trauma, without distinguishing and upon built This extended the legal developments in eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or eliminate existing unconstitutionalities does not depend upon what the Legislature may do, to upon what the Governor may do, or, indeed, upon what Respondents may actually be able accomplish.a Penitentiary System, it is going to have to be a If Arkansas is going to operate system that is countenanced by the Constitution of the United States.” named plaintiff, Lawrence Holt: “[G]iven the extent to which the plaintiffs’ attorneys con- named plaintiff, Lawrence Holt: “[G]iven the that the case and one of its attorneys trolled the litigation, it was an appropriate coincidence were homonymous.” & R rectional officers who share in those conditions, see Lance Lowrey, rectional officers who share in those conditions, Officers Swelter text. Rather than addressing specific conditions piecemeal, Judge Henley chal- Rather than addressing specific conditions system’s operations as contrary to the lenged the entirety of the state prison to judicial supervision.Eighth Amendment and subjected it Furthermore, of humane treatment by shifting the state could not dodge the requirement this obligation to the legislature. 2014] Ar- and local prosecutor a conservative Jack Holt, and rights litigator; civil kansan. \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 13 9-JUN-14 13:37 describes this as the state’s “carceral burden.” 34923_hlc 49-2 Sheet No. 129 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 129 34923_hlc 34923_hlc 49-2 Sheet No. 129 Side B 06/09/2014 15:03:23 R R R R , , By Holt note 69 rights UDICIAL None- J supra 73 , EDERAL F SHINSKY and its progeny, O In an opinion three an opinion In This judicial supervi- TORY OF 68 Holt II 72 S see also 74 HE : T 5 (1989); 78. – EGRET – 4 R YSTEM 76 S EFORM AND The Court of Appeals for the Eighth Circuit The Court of Appeals note 18, at 74 R RISON ), 363 F. Supp. 194, 202 (E.D. Ark. 1973). 71 , , 442 F.2d 178 (2d Cir. 1971), as limiting the discretion of , 442 F.2d 178 (2d Cir. 1971), as limiting the P note 18, at 66. supra note 14, at 757 (“Given the historical context, litigating these 14, at 757 (“Given the historical context, note , ACKLE Holt III 70 supra LABAMA , Y supra UBIN A UBIN ARRY & R 15. 09. L – – , & R , correctional officers could still give disproportionate punish- could still give disproportionate , correctional officers Sostre v. McGinnis EELEY 48. F – Holt v. Hutto ( Schoenfeld, Holt v. Sarver, 442 F.2d 304, 309 (8th Cir. 1971). Holt v. Sarver, 442 F.2d 304, 309 (8th Cir. the invoked also court The This wave of prison litigation explicitly used the language of This wave of prison litigation explicitly at 214 at 206. EELEY 75 See F (8th Cir. 1974). Finney v. Ark. Bd. of Corr., 505 F.2d 194, 206 Id. Id. See See, e.g. See See The Arkansas cases took place in the context of a Jim Crow justice The Arkansas cases took place in the Judicial supervision of the Arkansas prisons led to fitful progress, even- of the Arkansas prisons led to fitful Judicial supervision Holt II 69 70 71 72 73 74 75 76 68 NVOLVEMENT IN THE that time, Sarver had been replaced as Commissioner of Corrections by Ter- of Corrections as Commissioner Sarver had been replaced that time, in the Cali- who had worked commissioner another reformist rell Don Hutto, fornia prison system. theless, judicial supervision ended in 1982, following a controversy over theless, judicial supervision ended management. other forms of corruption in prison years later, Judge Henley recognized that conditions had substantially im- had substantially that conditions Judge Henley recognized years later, conditions that inhumane he noted, however, least on the books; proved, at constitutionally suspect. still could be mismanagement arising from sion was necessary even given the active cooperation of Commissioner sion was necessary even given the words are no solution.” Hutto because, as the court found, “mere affirmed the district court’s involvement, citing the “monumental” problems court’s involvement, citing the “monumental” affirmed the district law.” “in a newly developed area of constitutional 29, at 241 was ultimately based in violations of individual rights rather than the social was ultimately based in violations of terms that some critics preferred. ments, such as subjecting elderly inmates to the same labor conditions as elderly inmates to the same ments, such as subjecting inmates. younger, stronger which had been crucial in the fights for equality during the previous decades. which had been crucial in the fights for such as Even the most ambitious prison litigation, language of judges to review abusive prison practices, but found that Henley had met this standard. judges to review abusive prison practices, but 442 F.2d at 308 system that was responding to larger social developments in the wake of the system that was responding to larger civil rights movement. throughout the South Advocates of prisoners’ rights of rights for African Americans gen- connected their work to the expansion erally. tually sputtering out at the end of the decade.tually sputtering out were abuses glaring most The apparent, it became more deep-seated problems became corrected, but as of the prisons in the the court’s continued oversight more difficult to justify established in the earlier cases.terms that had been while example, For of inmates follow- “unquestionably” condemned abuse Commissioner Hutto ing I issues meant translating them into a problem of constitutional ‘rights’ . . . However, the 544 and inhuman cruel not constitute will therein incarceration that assurance Amendment.” of the Eighth violative punishment Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 14 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 129 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 129 34923_hlc 34923_hlc 49-2 Sheet No. 130 Side A 06/09/2014 15:03:23 R R R . 78 EV 17 . L. R DVOCACY OF ENT ITIGATION A largely as a L He sought to At Attica, he — N.C. C But this limited 81 OUSE 79 77 H 07. , 4 – RISONER AIL P J E HE S , T RO P note 5, at 205 ALSTON The New Prisoner The Prison Letters of Martin Sostre: Docu- supra D. R , 4 (1968). note 18, at 162. MPLICATIONS OF RISON ICHARD IMBALL supra I 281, 286 (1977). P . , & R 82 & K TUD to Martin Sostre, UBIN ENTAL S M SEEM ALSTON & R U LACK Sostre did not believe that law would adequately vin- Sostre did not believe ETTERS FROM 80 See M. R J. B , L EELEY note 79, at 29. F EGAL AND , 7 Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 545 While he perceived his trial for drug possession to be a While he perceived his trial for drug RISTA OSTRE See : L 83 K supra , S , OSTRE Warren L. Schaich & Diane S. Hope, ARTIN OSTRE S see also Introductory Note See, e.g. M Id. See Useem and Kimball offer a typology of responses to incarceration: Rationalism, Consti- S Feeley and Rubin note that the legal project was to impose national standards on state Feeley and Rubin note that the legal project Martin Sostre, one of the preeminent jailhouse lawyers of the time, ex- of the preeminent jailhouse lawyers Martin Sostre, one I am setting the example of total rebellion, even in the courtroom, I am setting the example of total rebellion, kangarooism against me and against the oppression, frame-up and my militant brothers all over the country. I am telling all the mili- Sostre had a complex relationship to the law.Sostre had a complex relationship to He operated the Afro- Prisoners’ rights cases suggested the possibility of preventing both of preventing the possibility suggested cases rights Prisoners’ 78 79 80 81 82 83 77 ARTIN B. Litigation as Political Resistance Martin Sostre, Jailhouse Lawyer: use law to force the state to acknowledge the distance between its acts and use law to force the state to acknowledge its constitutional aspirations. began to study law. rights to those specifically mandated by the Constitution and those prevent- mandated by the Constitution rights to those specifically dehumanization. harm, not feelings of terror or ing barbarous physical plored the limits of litigation during the 1960s and early 1970s, offering a litigation during the 1960s and early plored the limits of the Arkansas cases. model of civil rights litigation in sharp contrast to the (1995); dicate rights; rather, lawsuits were a vehicle for resistance. dicate rights; rather, lawsuits were a 242, 242 (1972). “frame-up,” his approach was to use the tools of the law against the state: “frame-up,” his approach was to use ments of Resistance Asian Bookstore in Buffalo, a center for local radical politics, and believed Asian Bookstore in Buffalo, a center freedom of expression strongly in freedom of thought and way of fostering a political awareness outside the channels of the main- way of fostering a political awareness stream press. tutionalism, Rehabilitationism, and Revolutionism. While too rigid to be of much use, it may as- be helpful to think of Sostre as combining the “Constitutionalism” and “Revolutionism” pects of this typology. prison systems. M ‘rights’ framing of prison litigation limited the ideation of the problem to the ‘immediate dan- ‘rights’ framing of prison litigation limited the the overuse of incarceration for low-level gerous conditions’ instead of, for example, offenses.”). In prison, Sostre had converted to Islam before finding it an inadequate had converted to Islam before finding In prison, Sostre to mobilize the black community. movement with which 2014] \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 15 9-JUN-14 13:37 targeted abuse imposed by correctional officers and pervasive inhumane and pervasive officers by correctional imposed abuse targeted and mismanagement. created by policy conditions legal By grounding the Judge Hen- individual rights, in a violation of conditions harm of inhumane in state political decisions conditions from to decouple prison ley had tried legislatures.political decisionmaking law from move to distinguish This in the South. local politics the conservative would sidestep 34923_hlc 49-2 Sheet No. 130 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 130 34923_hlc 34923_hlc 49-2 Sheet No. 130 Side B 06/09/2014 15:03:23 R 87 , at 869. and for 89 Indeed, it See id. 85 , 387 F.2d 519 However, she 92 86 93 84 was noteworthy for ex- was noteworthy Wright v. McMann 88 and already in this man’s jail this man’s already in and Judge Constance Baker Motley observed 70. – 91 Sostre v. Rockefeller , 312 F. Supp. at 869 Pierce v. LaVallee, 293 F.2d 233, 236 (2d Cir. 1961). Pierce v. LaVallee, 293 F.2d 233, 236 (2d Cir. at 55. at 65. at 56. at 874. at 876. are irrelevant, it bears mentioning Against those who argue that law reviews at 871. Judge Motley relied on the reasoning in at 876. and Eighth Amendments. Id. Id. Id. See 312 F. Supp. 863 (S.D.N.Y. 1970). Id. Id. Id. Rockefeller Id. [O]ne function [of our prison system] is to try to rehabilitate the [O]ne function [of our prison system] validity of our legal system. lawbreaker by convincing him of the objective will be achieved if There is little chance that such an likewise break the law by prisoners are entrusted to those who rights. denying prisoners their basic constitutional Sostre filed several lawsuits from prison, achieving some success and lawsuits from prison, achieving some Sostre filed several imagine what 30 or 40 organized militant brothers can do on the militant brothers 30 or 40 organized imagine what white authority!” they should defy outside if tants: “Look brothers, what I am doing to the oppressor. doing to what I am “Look brothers, tants: can I If alone practically by myself, do it note 57. 90 84 85 86 87 88 89 90 91 92 93 finding that punishment by over a year of administrative segregation for po- finding that punishment by over a year of political literature violated the litical associations and the possession First was the duty of the citizen to expose the tensions and contradictions within citizen to expose the tensions and was the duty of the control: “Law means undermine its efficacy as a tool of the law in order to authority. this, he has it made. Once [the oppressor] accomplishes can He oppressed with their cooperation!” control and rule the noted: panding the right of inmates to communicate with legal counsel, of inmates to communicate with legal panding the right that Sostre was “unquestionably, a black militant who persist[ed] in writing that Sostre was “unquestionably, a black ideas in prison.” and expressing his militant and radical (2d Cir. 1967), on the consequences of prolonged solitary confinement.see reasoning, that For supra securing his reputation as a leading jailhouse lawyer.securing his reputation His first successful Muslims in prison. protected religious freedoms for litigation, in 1961, that one book that got him in trouble was an issue of the Harvard Law Review. The tension between the rule of law and radical politics meant that prisons The tension between the rule of law is what Sostre would try to use against had to scrupulously obey the law; this them. Sostre’s 1970 victory in Sostre’s 1970 victory 546 Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 how law law made visible manipulations of the the state’s own Revealing method of the most effective “found this to be distorted: Sostre was being fighting the oppressor. unlawful act you force him to By challenging every crime.” acts in order to cover up his original commit other overt \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 16 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 130 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 130 34923_hlc 34923_hlc 49-2 Sheet No. 131 Side A 06/09/2014 15:03:23 R R R R , 97 supra Sos- OSTRE S 101 Collec- Sostre v. 95 However, 100 102 . the determination Schaich & Hope, — Rockefeller see also acknowledged the need for acknowledged the 38; – the outcome in 1971’s the outcome in 1971’s 98 , note 78, at 35 Sostre v. Otis supra , note 33, at 144. ALSTON supra Sostre v. Rockefeller , & R Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 547 94. In determining that Sostre’s confinement was not cruel and confinement was that Sostre’s In determining TTICA – 94 A ALSTON R at 945. Sostre v. McGinnis, 442 F.2d 178, 191 (2d Cir. 1971). Sostre v. McGinnis, 442 F.2d 178, 191 (2d at 207. at 193 In contrast to these discrete indicia of treatment, Judge Wilfred discrete indicia of treatment, In contrast to these Id. See As he noted in a letter to his lawyer, Joan Franklin, “I will challenge this [obstruction was highly ambiguous. Id. Id. intimate with the Appeals’ decision As Samuel Melville noted to his lawyer, “If you’re 330 F. Supp. 941 (S.D.N.Y. 1971). See Id. But Sostre’s writings reveal the importance of litigation not only as a But Sostre’s writings reveal the importance Sostre’s lawsuits were not always effective, and the outcomes were were not always effective, and the Sostre’s lawsuits But his victory was short-lived.his victory But Circuit Second the en banc, Sitting 96 note 79, at 74. 99 96 97 98 99 100 101 102 94 95 ETTERS FROM tre’s letters from the late 1960s are telling as a window into how litigation tre’s letters from the late 1960s are goals rather than a program of could be used to pursue radical, oppositional prison reform.other critics of incarceration (described in the next Even as litigation, Sostre was determined to section) remained wary of civil rights used to constrain prison officials and show how these techniques could be the state used the law. expose the political purposes for which tively, the court found, these opportunities rendered the confinement accept- the confinement opportunities rendered court found, these tively, the able. the wisdom of Sostre’s decision to fight through the courts would be tested the wisdom of Sostre’s decision to fight Attica inmates. by New York State’s response to the Otis supra unusual, the court looked to his diet, opportunities to maintain minimal per- to maintain minimal his diet, opportunities court looked to unusual, the and the to some books, in therapy, access and participation sonal hygiene in segregation. with other inmates of communication possibility some censorship within prisons while upholding a right to read freely “pro- some censorship within prisons while is presented” vided no substantial danger of disruption at issue in of which was precisely what had been Feinberg, in dissent, pointed to a telling anecdote: the day after Judge Motley pointed to a telling anecdote: the day Feinberg, in dissent, for having dust from segregation, he was disciplined ordered Sostre’s release 4th celebration. prevented from participating in a July on his cell bars and L means of effecting change, but also as a means of self-preservation. means of effecting change, but also of mail] under the Civil Rights Act inasmuch as the reason for the obstruction was to conceal acts of racism and racial oppression being perpetrated upon me and our people.” of the Sostre case you know that really we lost (potentially) much more than we gained.” of the Sostre case you know that really we note 81. From Judge Feinberg’s perspective, counting the privileges afforded Sostre perspective, counting the privileges From Judge Feinberg’s targeting him for fundamental about the process of missed something punishment. often mixed. Judge Second Circuit’s quick modification of In addition to the Motley’s order in 2014] \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 17 9-JUN-14 13:37 deferred to prison administrators in their decisions to employ segregative to employ decisions in their administrators to prison deferred punishment. 34923_hlc 49-2 Sheet No. 131 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 131 34923_hlc 34923_hlc 49-2 Sheet No. 131 Side B 06/09/2014 15:03:23 R R R , The Ele- : “Here LEAVER 104 103 C LDRIDGE Soul on Ice 108 E to The liberal legal re- 106 One of the crucial political Introduction cases). 50. 105 – 19. 08. (1968). Holt – – CE I , among both inmates and young, mid- OUL ON note 17, at 128 a connection also made within more main- a connection also made within more , S note 27, at 318 note 27, at 106 — supra He described the process of his radicalization in He described the process of his radicalization Soul on Ice , LEAVER supra 109 supra , , in contrast to the radical approach that challenged the in contrast to the radical approach that C 107 section II.A (analyzing the UMMINS was not universally admired. Johnny Spain, a member of the Black EPORT EPORT C R R LDRIDGE E supra AY AY , , K K at xiii (1968). C C , C. and Action Theory Connecting Prisoners: Political Soul on Ice M M CE I See See generally See Eldridge Cleaver’s Maxwell Geismar noted in his introduction to See, e.g. See, e.g. But The arguments of radical prison theorists linked domestic social radical prison theorists linked The arguments of These radical political writings from the prison were intended to mobil- These radical political writings from The previous sections have examined legal responses to incarceration. examined legal responses sections have The previous 103 104 105 106 107 108 109 OUL ON stream elements of the left as the postwar liberal consensus began to break stream elements of the left as the postwar down. Rockefeller came close to seeing the Attica Even Governor Nelson riot as part of a global liberation movement. narrative of inmate as outlaw and as liberator provided one of the crucial as outlaw and as liberator provided narrative of inmate for expres- for understanding Attica, and one vocabulary interpretive frames sing inmate demands. problems to those overseas ments of the New Left and of the counterculture were deeply sympathetic to Left and of the counterculture were deeply ments of the New eagerly to these by these inmates, and they responded the claims made to something claims of prisoners generally as pointing works and to the society. wrong with contemporary American deeply and structurally sponse to incarceration was to demand that incarceration conform to certain sponse to incarceration was to demand minimum standards, dynamics was the growing disjunction between a centrist liberalism and the dynamics was the growing disjunction within this rift. left, and prison issues were firmly legitimacy of incarceration wholesale, and that viewed incarceration as an legitimacy of incarceration wholesale, isolation of the ghetto. outgrowth of urban poverty and the S ize outside forces. Eldridge Cleaver, an inmate at Folsom and San Quentin later became a leader in the Black State Prison (“San Quentin”) who romance of the outlaw in building an Panthers, effectively capitalized on the audience for his memoir, dle-class, white leftists. Cleaver unites the militant black resistance movement in the United States with the currents of Cleaver unites the militant black resistance movement world revolution in a way which may come as a shock to many white Americans of liberal persuasion and spiritual good-will.”Geismar, Maxwell a Panthers and one of the San Quentin Six, said: “It was one of the books that if you were prisoner that had political consciousness you had to read. And I thought it was one of the most 548 Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 18 alter- early 1970s provided the 1960s and prison theorists during However, 9-JUN-14 responses. and the proper facing inmates of the problems native analyses 13:37 of constitu- inmates in terms problems facing describing the Rather than rather than class analyses; terms of race and they did so in tional rights, in order to advocate courts, they wrote for the public working through the for social change. theorists lived in California, but Many of these prison of prisons. felt widely both inside and outside their influence was 34923_hlc 49-2 Sheet No. 131 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 131 34923_hlc 34923_hlc 49-2 Sheet No. 132 Side A 06/09/2014 15:03:23 R R R R 112 (1973). note 17, at 109. Jackson made RISON 113 117 supra P , OLEDAD UMMINS S C 115 See Id. yet totally unaware of the exis- of totally unaware yet 310 (2007). of the events For a narrative 110 ISTORY OF To Cleaver, the debates regarding To Cleaver, , H 111 ULTURE . C M Jackson’s letters were partly intended to in- Jackson’s letters were The Age of Jackson: George Jackson and the Culture of The Age of Jackson: George Jackson and the ELANCHOLY J. A 114 M , 30 HE , T note 108, at 58 (“Negro convicts, basically, rather than see them- 108, at 58 (“Negro convicts, basically, rather than note EE note 108, at 3. note 45, at 216. supra Lee Bernstein, , S. Y Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 549 or symptomatic of a deeper victimization. IN supra , supra 116 M “Rather than owing and paying a debt to society, Negro prisoners feel that they LEAVER Brown v. Board of Education v. Board Brown C at 4. LEAVER Id. See generally Jackson, See See id. 347 U.S. 483 (1954). C Id. All respect we may have had for politicians, preachers, lawyers, for politicians, we may have had All respect was utterly de- congressmen Presidents, senators, governors, over them temporizing and compromising stroyed as we watched legality and illegality, over constitutionality right and wrong, over and unconstitutionality. in the end what they were We knew that whether or us, what to do with the blacks, and clashing over was us as human beings.not to start treating I despised all of them. [This message’s] intent is to make it impossible for you to claim [This message’s] intent is to make it the world sits down to ignorance later on, after the war, when law.judge you, Amerikan society, Anglo-Saxon know didn’t “We save you from the condem- those things were going on,” will not nation of history and the world’s people. Both Jackson and Cleaver decoupled incarceration from moral blame- Both Jackson and Cleaver decoupled While Cleaver’s writings had wide appeal, the major theorist of the had wide appeal, the major While Cleaver’s writings 113 114 115 116 117 110 111 112 the point even more forcefully: “When the peasant revolts, the student dem- the point even more forcefully: “When robber robs, he is reacting to a feeling onstrates, the slum dweller riots, the tence or the meaning of the decision. meaning of the tence or the civil rights missed the basic point: missed the basic civil rights form the public about the experience of prison and partly to place them on the experience of prison and partly form the public about notice. One letter began: in Soledad, see are being abused, that their imprisonment is simply another form of the oppression which they have known all their lives. inmates feel that they are being robbed, that it is ‘society’ Negro that owes them, that should be paying them, a debt.” worthiness. themselves variously as prisoners of war or as They positioned political prisoners.an environment of poverty and racism, crimes were In either amoral prison was George Jackson. prison was George selves as criminals and perpetrators of misdeeds, look upon themselves as prisoners of war, the selves as criminals and perpetrators of misdeeds, look upon themselves as prisoners of war, victims of a vicious, dog-eat-dog social system that is so heinous as to cancel out their own malefactions: in the jungle there is no right or wrong.”). disgusting books I had ever read . . . I didn’t particularly care about the constant implication disgusting books I had ever read . . . I didn’t that.” that women had a place. . . . I didn’t appreciate Cleaver asked why he had been incarcerated for violating the law while he had been incarcerated for violating Cleaver asked why desegregation orders remained in power. those who defied 2014] rights civil the seminal after a month entered prison that he noting prison, in victory \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 19 9-JUN-14 13:37 American Prisons in the 1970s 34923_hlc 49-2 Sheet No. 132 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 132 34923_hlc 34923_hlc 49-2 Sheet No. 132 Side B 06/09/2014 15:03:23 R R R R 121 reaction Coons, an 123 it’s prison. There are He urged a shift from — Id. 126 As Jackson put it, the func- As Jackson put it, 120 179 (1970). 119 ROTHER B it had global implications.move- prison The Prisons and criminality defined respectability — 122 in prison for possession of LSD, may have been in prison for possession of LSD, may OLEDAD 124 note 108, at 115.at 108, note “[T]he link between America’s undercover , S note 44, at 108. supra note 45, at 227. note 40, at 106. , ACKSON supra 100. supra , – supra L. J , at 175. at 9. LEAVER C at 99 at 189 at 126. Such rights should be understood not as protections offered by the Such rights should be understood not Jackson’s framework not only explained the causes of crime in causes of crime only explained the framework not Jackson’s EORGE OONS ACKSON J Id. Jackson, C See id. Id. See id. See Id. G 127 118 But as a matter of politics, incarceration was not only about the ghetto But as a matter of politics, incarceration Even some nonradicals agreed that incarceration fulfilled a particular agreed that incarceration fulfilled Even some nonradicals If incarceration was not about blameworthiness, then what was it not about blameworthiness, then If incarceration was 125 119 120 121 122 123 124 125 126 127 118 educated, white writer, the language of “civil rights” to one of “human rights” understood univer- the language of “civil rights” to one sally. tion of law within a society was to “protect[tion of law within ] the culture’s ideology.” and hierarchy by fixing the label of criminality on the deviant. and hierarchy by fixing the label of criminality particularly attuned to this aspect of incarceration; drug laws had trans- particularly attuned to this aspect of as a bohemian lifestyle into a criminal formed what could have been seen one. state, but as a natural consequence of one’s humanity. state, but as a natural consequence of terms of hopelessness, but also provided an explanation of riot and violence of riot and provided an explanation but also terms of hopelessness, must opportunity: “Prisoners and lack of against hopelessness as a reaction injustice. are victims of social that they and made to understand be reached within.” task working from This is my ment dovetailed with the antiwar movement. Cleaver connected the struggle to those in the Third World; freedom for freedom among African Americans abroad. at home was impossible without freedom and domestic social order social need at their expense. incarcerated in At- William Coons, the writer project an image of needed criminals in order to tica, noted that society that this control of the prison reflected the recognition control; the brutality remained tenuous at best. about? about economics and property, It was about social order and stigma, the poor.and about warehousing should be seen as political prison- Inmates expression of law is not order ers: “The ultimate thousands of laws, of prisons, and thousands upon hundreds upon hundreds order, no social peace.” yet there is no social support of colonialism abroad and the bondage of the Negro at home becomes increasingly clearer.with improving the Negro’s condition recognize, Those who are primarily concerned one as do proponents of the liquidation of America’s neo-colonial network, that their fight is same.the and They see the key contradiction of our time.” 550 a imperative, territorial to the throwback an atavistic of insecurity, his surrounding circumstances of the lost control he has fact that to the Review Rights-Civil Liberties Law Civil Harvard life.” [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 20 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 132 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 132 34923_hlc 34923_hlc 49-2 Sheet No. 133 Side A 06/09/2014 15:03:23 R R R If 16. – 130 terror But the at 315 128 id. 49 (1969). terrorism. A — 132 ? OURT C fear OSTRE IN S ARTIN ., M 29. The “Five Demands” are reprinted in OMM – . C EF note 54, at 282 (“[E]ven conduct involving the exercise of a note D . based in the hierarchy that The problem was structural, supra note 118, at 22. note 1, at 27 OSTRE , 131 129 S Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 551 supra supra , , ARTIN ENJAMIN B M at 95 (“This evoked considerable applause.”). ICKER ACKSON W Id. See See J frightening, petrifying diffusion of violence and intimidation is frightening, petrifying diffusion of and captain.emitted from the offices of the warden How else be expected to hold and rule could a small group of armed men another much larger group except through Prison theorists offered sophisticated readings of rights, recognizing sophisticated readings of rights, Prison theorists offered these theorists, could law be used If this was all a matter of politics for The picture that I have painted of Soledad’s general population fa- The picture that I have painted of Soledad’s bad at all.cility may have made it sound not too mistaken That in my description of one impression would result from the absence main line more very important feature of the The allure of Third World liberation movements persisted into the At- persisted movements liberation Third World allure of The dehumanization 128 129 130 131 132 they came from the state, then they would need to be vindicated through the state, then they would need to be vindicated they came from the process.legal and political to look beyond the United It was important understand the content of human rights.States in order to effect, this To of Human Rights and the war Martin Sostre cited the Universal Declaration a higher law than American crimes tribunal at Nuremberg as providing constitutionalism. references to nonimperialist countries did not always have much purchase. always have much countries did not to nonimperialist references here . . . ain’t sayin’ back: “The silent majority out Another inmate pushed shit. . . .Africa, or I ain’t concerned about Algeria, I stands on my own, and anywhere else.” both their promise and the tenuous basis on which they rested. and the tenuous basis on which they both their promise determi- The upon the options either natural or positive law bore nation of rights through human nature, then protect them: If they were based in that inmates had to vindicate them. state could be justified in order to resistance against the defensively, as Sostre had tried to do? No, because for them the violence of identifiable harms.incarceration was not about specific, It was about and was built into the idea of the modern prison.was built into the idea of the modern perva- was terror of role The unjust place.sive and made the prison a fundamentally ex- Jackson As plained to his lawyer: right can nevertheless, under certain circumstances, be described as violent. More specifically, such conduct, when active, may be called violent if it exercises a right in order to overthrow the legal system that has conferred it.”). 2014] \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 21 9-JUN-14 13:37 tica riot. dur- rose to prominence black inmate who Barkley, a young, L.D. first set of demands. the inmates’ presented ing the occupation, It was juris- amnesty, federal America,” and demanded “to the People of addressed super- the prison under inmate reconstruction of the matter, the diction over country.” “to a non-imperialistic safe transportation vision, and 34923_hlc 49-2 Sheet No. 133 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 133 34923_hlc 34923_hlc 49-2 Sheet No. 133 Side B 06/09/2014 15:03:23 R R R Tom OCIETY S 138 . HE 137 ] ETTERS FROM , T : L This was the YKES 134 ECURITY S S ECURITY S RESHAM G AXIMUM M 6 (1958). AXIMUM discretion as to who he will discretion M in RISON P of overt violence and by the continu- of overt violence and absolute ECURITY S absence AXIMUM note 27, at 119. M note 39, at 171. supra , 64 (Eve Pell ed., 1972) [hereinafter note 134, at 72. supra TUDY OF A EPORT of its possibility.its of described it, “[t]error becomes As Jackson supra RISONS R Lewis Moore, an inmate at Soledad, had described the sense of Lewis Moore, an inmate at Soledad, P : A S AY S ’ Melville, 136 K 135 OF The problem existed on the level of specific grants of discretion as grants of discretion level of specific existed on the The problem at 24. C Id. Letter from George L. Jackson (Jan. 1971), See Gresham Sykes had earlier identified a similar phenomenon, through which an inmate Jackson, M 133 Was there a more degrading and degenerative act one person could Was there a more degrading and degenerative inflict upon another? could kill, but death has more dignity One than some kinds of life. One could mutilate, but only the ephem- eral body, which could heal itself. A human being could withstand [A]n inmate is no different then [sic] them [prison officials], [A]n inmate is no different then [sic] a law.only in the sense that he has broken He still has feelings, being.human a still he’s and And until the big wheels in Sacra- start practicing rehabil- mento and the personnel inside the prisons then they can expect itation, and stop practicing zoology, inmates and officials. continuous chaos and trouble between Terror was marked by the Terror was marked Along with the atmosphere of terror, the inmates also described how of terror, the inmates also Along with the atmosphere presence APTIVES 133 134 135 136 137 138 C ALIFORNIA Wicker, a reporter invited to Attica as an observer at the behest of the in- Wicker, a reporter invited to Attica in similar terms: mates, summarized the basic problem same theme that Melville had sounded in diagnosing the limitations of the had sounded in diagnosing same theme that Melville lawsuits. being treated as an animal in similar terms: being treated as an animal in similar ous could bring the blow . . . [;] a misstep across this line an absolute necessity that kills. of being shot at for so small an Even if no one dies the fact it.” permanent effect on all who witness indiscretion has a well as on the more general plane of the structure of the institution and its of the institution plane of the structure the more general well as on role in society. incarceration made them feel less than fully human.incarceration made Not only were they and self-deter- were denied the possibility of autonomy locked up, but they mination. becomes “a semi-human object, an organism with a number.” C An inmate at Attica described the feeling of not being treated like a man: An inmate at Attica described the feeling hours a day, 365 days a year.” “Manhood at Attica is intimidated 24 552granted power and the the prison of into the structure built was The problem administrators. prison to ever considered “[H]ave you He asked his lawyer: Review Rights-Civil Liberties Law Civil Harvard power. of handling absolute of man is capable what type many I mean how [Vol. abuse it?would not 49 generally or classifying way of isolating Is there any gun and be trusted with a who can \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 22 9-JUN-14 13:37 kill?” 34923_hlc 49-2 Sheet No. 133 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 133 34923_hlc 34923_hlc 49-2 Sheet No. 134 Side A 06/09/2014 15:03:23 R R R R R R 143 144 IG- AND , D , ANK OSEN The ex- note 33, at ETTERS FROM R , R 141 L in supra , 139 IGNITY ICHAEL note 134, at 223. M 140 , D TTICA A supra , ROM (2011); ALDRON F W Inmates in American prisons ECURITY IGNITY S 145 ETTERS D L EREMY J in UMAN AXIMUM M , H in 18. – ATEB (2012); and K note 27, at 42. EORGE EANING G t[he] system of exploitation of each other & alienation from each supra M , — note 1, at 59. note 45, at 217 Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 553 EPORT supra supra R , note 33, at 171. at 124.at the weekly meetings of the sociology class as “inter- Melville described These works, among others, were also discussed in Attica, where These works, among others, were also AY ISTORY AND NITY K 142 ICKER C H supra Letter from Sam Melville (Aug. 1971), Letter from “Comrade Robert,” of the inmates over the summer: “I can’t Sam Melville noted the growing politicization M See id. W significant attention from academics, par- The concept of “dignity” has recently drawn Jackson, , TS (2012). Many inmates became politicized through these experiences in the politicized through these experiences Many inmates became But these experiences of terror, dehumanization, and brutalization pro- and brutalization dehumanization, experiences of terror, But these physical brutality, or try to. or try brutality, physical him designated a person But to cage . . . . part of mankind than a less than human, as less 69. : I 142 143 144 145 139 140 141 – TTICA IGHTS treme nature of the punishment was due to the politicized nature of modern punishment was due to the politicized treme nature of the incarceration. prison. “Comrade Robert” described the At Folsom, an inmate identified as the very air here. “Political awareness pervades intellectual environment: replacing pimp- are the common topics of conversation, Political dialectics interest.ing, robbing, and hustling as the main Tse- Mao Fanon, Frantz replaced Louis La’mour [sic], Max Tung, Regis Debray, Che and Marx have Brand.” discussed political and social theory, and also contributed to a vibrant strand discussed political and social theory, of this literature. provided a foundation for a more thorough critique Theory did legal reform.of the system of incarceration than But what actions the inmates had created spaces to discuss theory and social movements. the inmates had created spaces to discuss vided an atmosphere in which inmates could understand their political situa- in which inmates could understand vided an atmosphere tion. was important for training the Jackson explained that the prison phenomenon, can “No other experience, no other social revolutionary mind: of all liberty. effect of imprisonment, the total loss equal the traumatic Any movement takes one out of this existence.” further downward tell [yo]u what a change has come over t[he] brothers in Attica. So much more awareness & brothers in Attica.tell [yo]u what a change has come over t[he] awareness more much So revolutionaries.growing consciousness of themselves as potential rap- Reading, questioning, ping all t[he] time. Still bigotry & racism, black, white & brown, but [yo]u can feel it begin- ning to crumble in t[he] knowledge so many are gaining that we must built solidarity against our common oppressor other.” block strategy sessions.” Letter from Sam Melville to Bill (Aug. 30, 1971), ticularly as it relates to the basis for human rights.body expanding this into point entry an For of literature, see generally 168 A The sociology class in particular was a known focal point for discussing The sociology class in particular was action. political theory and possibilities for R Five hundred inmates participated in inmate-led cell-study courses (African Five hundred inmates participated in and sociology), which met weekly. American history, Spanish, Hebrew, 2014] terms of the the institution in the inhumanity of had described While Coons inmates de- these by the administration, human concern lack of genuine dignity. denial of human in terms of the basic scribed it \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 23 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 134 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 134 34923_hlc 34923_hlc 49-2 Sheet No. 134 Side B 06/09/2014 15:03:23 R R R 150 note 81. – supra , but negoti- 147 In order to EPORT R 148 AY K note 33, at 175 C M supra , TTICA A Attica Revisited: The Prospect for Prison Re- 62. – ETTERS FROM L One inmate remarked, “I didn’t have my chil- One inmate remarked, “I didn’t have 149 note 27, at 61 supra , 747, 756 (1972) (“The tragedy of Attica where 43 men died, a death 747, 756 (1972) (“The tragedy of Attica where . EV EPORT R . L. R AY The Manifesto’s demands were strikingly moderate, The Manifesto’s demands 38 (“[N]o change can be accomplished without the constructive and receptive RIZ K Norval Morris & Gordon Hawkins, – at 62. C 146 A The Manifesto is reprinted in See See Oswald’s response to the Attica Liberation Front in M Id. The Attica Manifesto was delivered to Oswald on July 2, 1971.The Attica Manifesto was delivered to It tack- The Manifesto had been a long time in the making.The Manifesto had been a long time Parts of it had been Sostre’s method of opposition through the courts and Jackson’s critique and Jackson’s through the courts of opposition Sostre’s method , 14 146 147 148 149 150 D. of Theory and Violence a Background Manifesto: Rights Against The ations emphasized the complex position of the Commissioner, caught the complex position of the Commissioner, ations emphasized demands of inmates and guards. between conflicting strengthen their position, the inmates sought publicity outside the prison the inmates sought publicity strengthen their position, walls. the Manifesto spoke to both the existence of The process of writing to the difficulty of capturing all the obvious, easily definable problems, and problems in explicit terms. in incarceration.led several dimensions of the crisis de- Manifesto The civil rights, but it also highlighted scribed the traditional concerns of individual dignity.architectural features that implicated the instance, For of maintaining family connections: inmates complained about the difficulty way from New York City, particularly western New York State was a long of transportation, money to spend on for families without independent means from work.travel, or the ability to take time off York New from trip The hours of transit, all for visiting con- could cost over $100, including twenty ditions that felt degrading. dren visit me. visit dren animal, they can go to the zoo.” If they want to see an 27, at 137 form attitude of administration, staff, employees and, of course, inmates.”). While inmates may have had formal visitation rights, they were often diffi- While inmates may have had formal cult or impossible to exercise. the riots in the New York City deten- drafted more than a year earlier, during 554 should follow from this critique? Cleaver and as Jackson such Theorists ambivalent.were suffice.consciousness would a change in Perhaps But Review Rights-Civil Liberties Law Civil Harvard revolution? occur without a could this [Vol. 49 to the chang- American society were divergent responses of incarceration in of the prison.ing social conditions of Attica drew on both the The inmates the New York State strands in their negotiations with radical and legalistic and in their public manifesto.Department of Corrections In the summer of to Commissioner inmates submitted a list of grievances 1971, a group of (“the Mani- known as the Manifesto of Demands Oswald that became festo”). \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 24 9-JUN-14 13:37 toll surpassed only once before in the history of American prison riots, is that the issue in that toll surpassed only once before in the history of American prison riots, is that the issue in a confrontation was really only the simple request that we implement unkept promises over century old.”). 34923_hlc 49-2 Sheet No. 134 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 134 34923_hlc 34923_hlc 49-2 Sheet No. 135 Side A 06/09/2014 15:03:23 R R R R R R , 152 MER- note injus- A ORNING supra M legal , 160 157 to Attica, 155 YKES S TTICA AND THE 10 for letters from the See OME IN THE – be aired on televi- be aired note 33, at viii. As with the Tombs : A C note 33, at 57. — 158 HEY supra IGHTS at 201 , T F supra R I , id. O According to Melville, riots According to Melville, Id. in TTICA N , 156 A TTICA A ILL OF and Samuel Melville, , A B 154 A letter from a Folsom inmate during the A letter from a Folsom ETTERS FROM L AYNES ETTERS FROM 159 note 134, at 35. See to H L note 151, at 29. to supra ILTON , supra , Foreword 14 (1972). Prison, Where is Thy Victory? & M – ECURITY AYNES 13 This transfer had the unintended effect of sending several This transfer had Introduction S Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 555 ADILLO 153 & H B YSTEM S AXIMUM ICAN at 146. Gresham Sykes had made the same point in 1958. at 56. at 15. M ERMAN ADILLO The next day, the inmates hung a banner with a message from “The a message from hung a banner with day, the inmates The next Id. A Folsom inmate, Thomas K. Clark, described Folsom as “a place where Huey P. Newton, Id. H Id. Id. B John Cohen, William Kunstler, in RISON We feel that although we are in prison, we should not be denied all We feel that although we are in prison, rights and privileges of citizens. of We feel that the conditions prison life have been ignored too long.who people all for call We and conditions of prisoners are concerned about the welfare concerned about the escalat- throughout the state, people who are in prison, who care about ing violence perpetrated upon inmates to raise these issues. what the American doctrine stands for, Those early demands had then been taken up by inmates at Folsom in had then been taken up by inmates Those early demands 151 note 42, at 50, 55. P 157 158 159 160 151 152 153 154 155 156 denial of preliminary hearings, excessive bail, trial delays of over a year, trial delays of over excessive bail, preliminary hearings, denial of — where they would contribute to its Manifesto. where they would riot, the Folsom riot amplified its influence by reaching outside the prison. amplified its influence by reaching riot, the Folsom riot the legal profes- supported by groups representing labor, Its demands were ex-convicts. sion, doctors, and were the only way to attract the attention of the national media. to attract the attention of the national were the only way riot explained its aims: supra 136, at 8.at 136, the inmates can capture the attention of the “At certain times, as in the case of riots, inmates, including Herbert Blyden inmates, including People,” reading: “All we want is to be treated like human beens [sic].” like human beens is to be treated reading: “All we want People,” tice nourishes a monster in the depths of man so terrible that America’s favorite monster, Mr. tice nourishes a monster in the depths of man so terrible that America’s favorite monster, Frankenstein, is reduced to the status of a gentle soul by comparison!”K. Thomas from Letter Clark, California, before being reworked yet again in the Attica Manifesto.being reworked yet again in the Attica California, before In No- a list of demands in at Folsom in California issued vember 1970, the inmates set of long-standing frustrations. response to a similar public; and indeed disturbances within the walls must often be viewed as highly dramatic public; and indeed disturbances within the efforts in which confined criminals pass over efforts to communicate with the outside world, audience.” the heads of their captors to appeal to a new strike itself. 2014] tion centers.in the Manhattan inmates 1970, frustrated 10, On August their grievances that demanded Tombs”) Men (“the for of Detention House more inedible food, and insults to visitors, brutality, sion. to the state to be transferred for the inmates Lindsay asked Mayor John prison system. \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 25 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 135 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 135 34923_hlc 34923_hlc 49-2 Sheet No. 135 Side B 06/09/2014 15:03:23 R R R R R R F I in in 166 Id. , , 138 in , 165 162 nature of the EMOCRACY D class at the top. ENAL P — The Masked Assassination 63. – RISON IN A 30. – P at 57 id. An early letter dated May 12, 1971 An early letter dated 163 OLICING AND note 25, at 18. Bettina Aptheker describes it in : P note 151, at 27. Commenting on the riot, Huey Newton ex- on the riot, Huey Commenting note 42, at 39, 47. Davis recognized the importance of to Michel Foucault et al., note 42, at 19, 29 supra 161 The Social Function of the Prisons in the United States The Social Function of the Prisons in the United Political Prisoners, Prisons, and Black Liberation supra , supra , , supra OMELAND , H SWALD AYNES note 40, at 214 (“Lists of demands have been circulating around the 40, at 214 (“Lists note O Introduction ORNING ORNING note 40, at 232. M See & H supra M MERICAN William Coons, who was not involved in this process, de- was not involved in this process, William Coons, who The manifesto is reprinted in ene Harb trans., 2007). Angela Davis, , A 164 supra Id. See ene Harb, , ADILLO OONS B C Sir` at 53. This sentiment was also expressed, curiously, by Russell Oswald, Commis- OME IN THE OONS C OME IN THE See See C See “We demand that all condemned prisoners, avowed revolutionaries and prisoners of “We demand that all condemned prisoners, Id. Half would go for some action in the near future if somebody some action in the near future if Half would go for relief them; the other half still believe strong enough persuaded and ap- the courts and legislators, via writs may yet come through congressmen and the governor.peals and letters to Relative sanity side, but there’s no monopoly.seems on the latter Anywhere. If needed most anything, it’s lacking just where it’s On August 21st, George Jackson was shot and killed at San Quentin, On August 21st, George Jackson was On the heels of Folsom, drafts of grievances and demands circulated at demands circulated of grievances and of Folsom, drafts On the heels C 163 164 165 166 161 162 HEY ARFARE IN THE T HEY F demanded “a new prison doctor, a baseball diamond in the yard, more than prison doctor, a baseball diamond in demanded “a new in the prison better food, and higher pay for working one shower a week, metal shop.” plained that the “single greatest achievement of their collective resistance of their collective achievement the “single greatest plained that in the and White prisoners” of Black, Brown the growing unity has been by the institution. had been encouraged division that face of racial (Joy James ed., Sir` scribed the prisoners as divided: scribed the prisoners W under circumstances that led many observers to suspect political motives. under circumstances that led many observers Attica through the spring of 1971. Attica through the war be granted political asylum in the countries under the Free World Revolutionary Solidarity war be granted political asylum in the countries North Korea, North Vietnam, etc., and that Pact, such as Algeria, Russia, Cuba, Latin America, country, until they can be exchanged for prison- prisoners confined for political reasons in this with the 1954 Geneva Convention . . . .” ers of war held by America, be treated in accord in explaining how the cross-racial organiz- sioner of the New York Department of Corrections, the growing political consciousness of the Puerto ing was not an instance of Black Power or of Rican community. at 61. “We demand that such celebrated and prominent political prisoners . . . be given politi- slandering of the mass media has made it cal asylum outside this country as the outrageous term to be served in case of conviction, as the impossible either for a fair trial or for a safe forever submitting them to threats of cruel and forces of reactions and repressions will be are confined and throughout the length of their unusual punishment and death wherever they confinement.” the racial unity among prisoners without denying that there was a racial tilt to patterns of the racial unity among prisoners without denying incarceration. T approval. inmate general seeking block, Sam [Melville] probably did some, but he’s not the only one.”). slightly different terms, as an expression of the “growing awareness of the slightly different terms, as an expression of the The next day, a guard at Attica observed that many inmates were wearing The next day, a guard at Attica observed 556 terms. in universal its demands presented Folsom manifesto The Unlike its interna- to connections its emphasized it directly manifestos, companion Review Rights-Civil Liberties Law Civil Harvard movements. tional liberation [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 26 9-JUN-14 13:37 I prison system.” Bettina Aptheker, 34923_hlc 49-2 Sheet No. 135 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 135 34923_hlc 34923_hlc 49-2 Sheet No. 136 Side A 06/09/2014 15:03:23 R R R R R R R R , 173 170 EL- M TTICA A see also 39; – Other inmates, ETTERS FROM 171 L note 33, at viii. note 33, at 175 (originally in supra , supra , note 27, at 138 TTICA TTICA A supra A 46. , – EPORT R ETTERS FROM AY organized in part by inmate Samuel Mel- inmate Samuel part by in organized L ETTERS FROM The central grievance dealt not with particu- The central grievance dealt not with K L 167 C to note 151, at 30. 175 M note 27, at 141 169 See supra supra , , note 1, at 27. Foreword reprinted in . EPORT AYNES The problem was not incarceration per se, but rather the The problem was not incarceration supra , R Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 557 174 166 AY & H K ICKER C note 33, at 169. W M 172 (originally in all caps). (originally in all caps). The tension in the prison grew thicker; violence seemed increas- seemed violence thicker; grew in the prison tension The ADILLO For example, the Attica guards noticed that the Black Panthers and the Nation of Islam, For example, the Attica guards noticed that the Letter from Sam Melville to Sister Harriet (Aug. 1971), See Attica Manifesto, Id. Id. B William Kunstler, contributed to the intensification of While a fight that grew out of a football game supra 168 The preamble also characterized the social position of the inmates: due The preamble also characterized the The preamble of the Attica Manifesto, first, framed the social context of Attica Manifesto, first, framed the The preamble of the The Attica Liberation Front formed in June 1971, comprised of five 1971, comprised formed in June Liberation Front The Attica note 33, at , 170 171 172 173 174 175 167 168 169 including L.D. Barkley, would also assume leadership positions during the would also assume leadership including L.D. Barkley, takeover. ville. supra lar harms, but with the general social framing that positioned the inmates as lar harms, but with the general social less than fully human. warehousing of inmates. preamble relied on structural arguments about The the design of prisons made the use of violence and political imprisonment: them inherently abusive. characters as alleged criminals,” to their “posture as prisoners and branded selected to do [prison officials’] they were treated “as domesticated animals as a personal whipping dog for their bidding in slave labor and furnished sadistic, psychopathic hate.” ingly likely to break out. ingly likely the writing: it emphasized that this document was a multiracial, religious, that this document was a the writing: it emphasized of the prison. that did not represent any one segment and class statement inmates (Donald Noble, Frank Lott, Herbert X. Blyden, Carl Jones-El, and X. Blyden, Carl Jones-El, Lott, Herbert Noble, Frank inmates (Donald inmates in negotiations. the other who would represent Peter Butler) They Melville at Attica: Samuel the inmates the only ones organizing were not the drafting of the League” weighed in on and his “Attica Anti-Depression various prison fac- tried to establish unity among the Attica Manifesto and well as politics. the lines of race and religion as tions, divided along which often differed in their responses to incarceration, reached a truce brokered by the Young which often differed in their responses to incarceration, Lords, a Puerto Rican group. tensions, inmates and guards alike described the atmosphere as having been tense even before tensions, inmates and guards alike described the game. VILLE in all caps). While supportive of the Manifesto, Melville remained skeptical of what it of the Manifesto, Melville remained While supportive describing it as “hazy & unspecific.” could accomplish, motivated by their stated that the inmates had been The preamble further the institutions which were de- perception that the state had “restructured fascist concentration camps of mod- signed to socially correct men into the ern America.” 2014] of solidarity, in a show black \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 27 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 136 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 136 34923_hlc 34923_hlc 49-2 Sheet No. 136 Side B 06/09/2014 15:03:23 R 183 180 29 (1969). 179 RISON P note 33, at 177 (originally supra ETTERS FROM , L in , TTICA A In their attempt to “assemble in 182 the Manifesto described how “efforts 184 In the words of the Manifesto, the modern of the Manifesto, In the words ETTERS FROM L 176 The inmates named the malefactors: the Governor The inmates named An Appeal to the Students , 178 reprinted in OSTRE S 185 ARTIN M (originally in all caps). (originally in all caps). (originally in all caps). Specifically, the inmates’ efforts to get beyond violence were met efforts to get beyond violence Specifically, the inmates’ at 181. (originally in all caps). at 176. at 177 (originally in all caps). (originally in all caps). One of the Manifesto’s goals, therefore, would be to teach the pub- therefore, would Manifesto’s goals, One of the Id. Id. Id. Id. Id. Id. Id. Id. See Attica Manifesto, 181 177 The Manifesto’s twenty-seven demands were written in far more legal- The Manifesto’s twenty-seven demands in the context of prison litiga- The Manifesto’s demands most familiar The preamble acknowledged that the inmates of Attica had been sen- that the inmates of Attica The preamble acknowledged The Manifesto also contained an expression of hope. expression an also contained Manifesto The It was addressed 176 177 178 179 180 181 182 183 184 185 dissent as provided under this nations [sic] United States Constitution, [they dissent as provided under this nations framed on various criminal charges were] in turn murdered, brutalized and privileges of all American people.” because [they sought] the rights and to intellectually expand in keeping with the outside world” were met with to intellectually expand in keeping with offended to isolation status censorship, and that inmates were “punitively human rights to the wisdom of when [they] insist[ed] on [their] awareness.” prison was constructed in the name of the people, but without their knowl- but without name of the people, constructed in the prison was edge. of New York, the New York State Department of Corrections, the State Leg- York State Department of Corrections, of New York, the New courts. Parole Board, and both state and federal islature, the State with the experience of being “victimized by the exploitation and the denial with the experience of being “victimized of the celebrated due process of law.” lic “how their tax dollars are being spent to deny [the inmates] justice, deny [the inmates] are being spent to their tax dollars lic “how equality and dignity.” istic terms, drawing upon specific rights. They fall under a few standard the availability of legal repre- headings: rights related to prison discipline; pay; better living conditions; and struc- sentation; better work conditions and prisons. tural changes to the administration of an end to punitive segregation for tion include those regarding discipline: tenced “for the purpose of correcting what has been deemed as social errors of correcting what has been deemed tenced “for the purpose behavior.in as socially unacceptable Errors which . . . classified [prisoners] understanding as to with new values and more thorough until programmed community.” as members of the outside [their] value and responsibilities in all caps). Echoing the story of Martin Sostre, And yet Attica failed on its own terms: “[Prisoners were] treated for [their] on its own terms: “[Prisoners were] And yet Attica failed as a medica- program administrators with their hostility hostilities by . . . tion.” 558way of showing as a presented and was of society” people sincere to “the Review Rights-Civil Liberties Law Civil Harvard [sic] the authoratative . . . is without question “the prison system them that [Vol. coward in power.” fangs of a 49 \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 28 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 136 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 136 34923_hlc 34923_hlc 49-2 Sheet No. 137 Side A 06/09/2014 15:03:23 at 178. Id. The prison was a home for Prison labor was a complex Prison labor was 191 190 189 This set of demands accords with the type of demands accords This set 186 availability of outside employers, unionization, higher availability of outside 188 Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 559 81 (Prisoner Demands Nos. 4, 6, 12, 22, 23). 79 (Prisoner Demands Nos. 5, 7, 8, 9, 11, 14, 15, 16). 81 (Prisoner Demands Nos. 2, 3, 25, 26). – – – at 177 at 177, 179 (Prisoner Demands Nos. 1, 13). at 177 at 177 (Prisoner Demands Nos. 10, 17, 18, 19, 20, 21, 24, 27). Lawyers had a role to play in protecting prisoners’ rights, as these to play in protecting prisoners’ rights, Lawyers had a role Id. Id. “[T]heir labor power is being exploited in order for the state to increase its economic Id. Id. Id. A final set of demands asked for structural changes to the prison admin- A final set of demands asked for structural Another set of demands spoke to living conditions within the prison: spoke to living conditions within Another set of demands Other demands involved access to legal representation, both in parole both in to legal representation, involved access Other demands A large set of demands spoke to labor conditions, which had long been spoke to labor conditions, which A large set of demands The Manifesto concluded with a ringing statement: The Manifesto concluded with a ringing as human beings, the We are firm in our resolve and we demand, by right of our birth.dignity and justice that is due to us do We brutality and dehumanization not know how the present system of be perpetrated in this day of and injustices has been allowed to 187 186 187 188 189 190 191 the inmates, and, accordingly, they sought better conditions. the inmates, and, accordingly, they sought officers; an end to racial agita- istration: prosecutions for violent correctional for members of racial minorities; tion by administration officials; counselors end to basing parole decisions on the a popularly elected parole board; an “nominated by a psychological or underlying felony; a board of overseers bar association or by the civil liberties psychiatric association, by the state involved laymen”; an accounting of the union, and by groups of concerned, committee to participate in prison gov- inmate recreation fund and an inmate prisons. ernance; and consistent rules across issue, but it was at the heart of their listed grievances. issue, but it was at conditions and facilities, an end to improved medical care, improved visiting food. unsanitary food conditions, and better of legal protections that could be won through the courts. be won through that could of legal protections administra- and prison bridge between inmates and generally as a hearings, tion. wages as a way to support their families, compliance with minimum wage support their families, compliance wages as a way to for work-related workplace safety standards, insurance laws, meeting state training programs. accidents, and vocational demands indicated. cheap labor and for officials for providing a source of important to prison playing a moral role in rehabilitation. demanded an end to The inmates compelled labor, power and to continue to expand its correctional industries (which are million-dollar com- plexes), yet do not develop working skills acceptable for employment in the outside society, and which do not pay the prisoner more than an average of forty cents a day.” 2014] access including persecution, and racial to political an end beliefs; political in discrimination end to an brutality; end to physical an literature; to political conducted of cells to be demand for the searches minorities; and a parole for of the inmate. in the presence \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 29 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 137 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 137 34923_hlc 34923_hlc 49-2 Sheet No. 137 Side B 06/09/2014 15:03:23 R R 36. 195 – of incarcera- note 27, at 134 section II.C. supra experience 193 , prison conditions litigation, EPORT — R see also supra AY K C M See created a space in which experimentation 192 — note 33, at 171; supra , But even the most vocal critics of incarceration were But even the most vocal critics of incarceration 194 ELVILLE cases suggested that there was only so much that litigation cases suggested that there was only , M , Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir. 1971) (describing the “gener- Sostre E. to Incarceration The Generative Space of Responses at 181. something that transcended discrete, identifiable rights violations to something that transcended discrete, Id. The Attica Liberation Faction exchanged several letters with Oswald through July and See, e.g. See, e.g. and This Part has argued that the intellectual space of the prison in 1971 that the intellectual space of the This Part has argued The coexistence of multiple strategies enlightenment, but we are the living proof of its existence and we and of its existence proof are the living but we enlightenment, it to continue. allow cannot — 192 193 194 195 tion terror, and dehumanization. create a totalizing atmosphere of control, in dialogue with attorneys, and the language of both civil rights and human in dialogue with attorneys, and the language rights remained powerful. Critics (including prison intellectuals such as as well as other inmate leaders such George Jackson and Eldridge Cleaver, of the as Sam Melville) advocated the recognition could achieve. claims were more easily cognizable to the courts Certain received substantial deference within than others, and prison officials still administrative law. was possible. of strategies reinforced the effectiveness of The combination any one method.each, even as they suggested limits to the of outcomes The Holt civil rights litigation, political and theoretical argumentation, and direct ne- civil rights litigation, political and theoretical gotiation with prison officials encompassed diverse perspectives for thinking about the meaning of incar- perspectives for thinking about the encompassed diverse the harms exper- vocabularies for how to speak about ceration, competing about change and several strategies for bringing ienced by the incarcerated, within the prison. in containing such a rich set of Attica was not unique environment of the early 1970s.discussions; this was part of the prison The these strands to speak to a broad set of authors of the Manifesto integrated critiques of rights, and of politics.harms using the language of rights, The against the background of law- position of the authors must be understood within a polarized society. suits, violence, and political change August, gradually becoming more insistent, but noting that they would “continue to strive for August, gradually becoming more insistent, but noting that they would “continue to strive prison reform in a democratic manner.” ous scope of discretion accorded prison authorities”). 560 Review Rights-Civil Liberties Law Civil Harvard speaking the simultaneously was a way of of writing manifestos The process [Vol. 49 prison. inherent in the the violence of rights and recognizing language It institution, prisoners and the between the for direct negotiation also allowed courts. through the requiring mediation rather than of the In the context the previous year, the occurred in New York State within other riots that had hinted appeal to a desire for peaceful decisionmaking Attica inmates’ explicit violence if negotiations failed. at the possibility of \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 30 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 137 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 137 34923_hlc 34923_hlc 49-2 Sheet No. 138 Side A 06/09/2014 15:03:23 R R R R R , id. note , with EPORT R supra : AY K C RDER M shorthand for O — It is thorough, and Foucault et al., 200 22. See – IOT R ESTORATION OF R Groupe d’Information sur les Prisons note 25, at 118 note 27. supra supra , , The twin events of the riot and the shooting of The twin events of 29. The “Fifteen Practical Proposals” are reprinted in – ESPONSES TO THE 198 The McKay Report advocated reform as a way to The McKay Report advocated reform EPORT SWALD IOLENCE IN THE R R 201 V AY K C 202 13. note 1, at 27 M xxi. – – Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 561 AW AND supra , at xx at 106 id. However, negotiations ultimately broke down on the question of on the question broke down negotiations ultimately However, Inmates of the Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 15 (2d Cir. 1971). Inmates of the Attica Corr. Facility v. Rockefeller, A. and the Restoration of the Prison The McKay Report Eventually the inmates and Oswald agreed on twenty-eight and Oswald agreed the inmates Eventually The problem to be overcome was brutality and abuse; the everyday overcome was brutality and abuse; The problem to be III. L ICKER 197 W These are reprinted in O See The Attica riot, after all, is what created the McKay Commission. See generally See id. See 196 199 The McKay Report, the official report produced by the State of New The McKay Report, the official report Attica became a powerful symbol of prison injustice Attica became a powerful symbol of The discussion of prison issues narrowed dramatically after the riot.prison issues narrowed dramatically The discussion of In Negotiations between prisoners and officials continued even during the during even continued and officials prisoners between Negotiations note 27, at xi.the shooting, Jackson’s On 196 197 198 199 200 201 202 remains one of the best sources for information about the events of Septem- remains one of the best sources for information ber 1971. narrative arc, which emphasizes the failures But it has a particular and the failures of the state in respond- of the prison leading to the uprising restoration of order and the ordinary ing to it, ultimately ending with the operations of the prison. supra George Jackson in the summer of 1971 focused attention on overt vio- the summer of 1971 focused attention George Jackson in lence. return to normalcy. the connection between incarceration and violence.the connection between incarceration But was the problem of was this violence an outgrowth of sys- Attica one of violence-as-brutality, or temic problems? of Attica would reveal the difficulty of argu- The aftermath rights.ing the more expansive theories of How did the advocates of the the violent retaking of Attica? legal strategies in Part II respond to of the riot. York, provides a comprehensive narrative experience of the prison was normalized. experience of the points. back the prison. the state police took reprisals, and amnesty and part, this is an understandable response to the violent events that led to the response to the violent part, this is an understandable Attica. forty-three deaths at at 317. which Michel Foucault was affiliated, felt the need to push back against narratives that focused solely on the shooting to the exclusion of the basic concerns. 2014] \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 31 9-JUN-14 13:37 166, at 138. Attica riot. Attica Practical a list of “Fifteen inmates produced At that time, the and relig- labor, political wage for prison including a minimum Proposals” opportu- food, and educational facilities, healthy recreational ious freedoms, nities. 34923_hlc 49-2 Sheet No. 138 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 138 34923_hlc 34923_hlc 49-2 Sheet No. 138 Side B 06/09/2014 15:03:23 R R R R R 235 54. – RISON P Given the 94. Rothman at 240 – 203 See id. IRTH OF THE Id. B note 14, at 93 HE “The Rule of Love”: Wife-Beating 35, 45 (1991). Even the McKay . supra : T , 87 (1996). UST – . J 207 UNISH OC There had been several waves of P S OTHMAN but would this reform produce any- but would this reform 208 — , 18 2117, 2178 Reva B. Siegel, See L.J. note 27, at 470. note 11, at 418 (for penal reform at the end of the Progres- ALE ISCIPLINE AND Y supra , D one of its conditions of functioning.always has prison The note 27, at 470. , supra note 42, at 136. This accords with Reva Siegel’s concept of — , , 105 In an earlier moment, John Clutchette in California had In an earlier moment, supra The Order of Attica EPORT , supra OUCAULT R 204 ENNAN L F AY C EPORT K The McKay Report concluded its description of this event on concluded its description of this event The McKay Report C Within a year of the takeover, it seemed that the cynical view takeover, it seemed that the cynical Within a year of the , M R ICHEL M 206 AY 205 M K Clutchette, Reforms could be framed in moral terms, or in scientific terms, or Reforms could be framed in moral C See M Id. For reform in Jacksonian America, see R See, e.g. Robert P. Weiss, See 209 This was not the first time that structural problems had become appar- This was not the first time that structural There is also a more cynical view of what a return to normalcy meant: to normalcy a return of what view a more cynical is also There 205 206 207 208 209 203 204 thing meaningful? long history of failures in incarceration, was the question of normal versus the question of normal was of failures in incarceration, long history degrada- of violence and merely one of degrees in Attica aberrant behavior by prison officials?tion allowed a traumatic moment, In the wake of such was inevitable reform of the prison crisis and reform in prisons, and each time a wave of prison reformers had crisis and reform in prisons, and each system with new theories of incarcer- cleaned up the excesses of the carceral ation. (1977). “The prison should not be seen as an inert institution, shaken at intervals by reform movements. The ‘theory of the prison’ was its constant set of operational instructions rather than its incidental criticism improvements, experiments, theoretical state- formed part of an active field in which projects, have proliferated.” ments, personal evidence and investigations suggested that prison reform was reactionary because it would perpetuate reform was reactionary because suggested that prison at Attica prove under the veneer of change; would events systemic problems him right? a somber note: “Thus, the cycle of misunderstanding, protest, and reaction the cycle of misunderstanding, a somber note: “Thus, in which the inmates remains the only language continues, and confrontation attention to the system.” feel they can call was correct: the decision to fire a popular nurse led to a four-day strike by to fire a popular nurse led to was correct: the decision of a state of at Attica, culminating in the declaration nine hundred inmates emergency. in pragmatic terms, and reformers could occupy various social strata.in pragmatic terms, and reformers could How- Report concluded on this somber note: “The underlying tension between the inmates’ demands Report concluded on this somber note: “The underlying behind stone walls and iron bars had surfaced for recognition as humans and their captivity once again.” ent in American prisons, nor was it the first time that reformers found a way ent in American prisons, nor was it the to restore the viability of the prisons. as Prerogative and Privacy “preservation through transformation.” the describes how the state of incarceration deteriorated to a purely custodial function by 1860s, with a concentration of immigrants and other marginal groups. sive Era). 562 yard in the stripped naked were convicts the Attica the ‘disturbance,’ “After Review Rights-Civil Liberties Law Civil Harvard and thus back to their cells to the ground, to crawl, with faces and made [Vol. of things.’” objects in the ‘order back ‘in place’ as relegated 49 \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 32 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 138 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 138 34923_hlc 34923_hlc 49-2 Sheet No. 139 Side A 06/09/2014 15:03:23 R R 212 213 , July 21, Sostre’s 215 IMES Instead, “[t]he N.Y. T , 214 Before Attica and After Before Attica — 48. – 131 (1978). RISONER P note 78, at 247 note 147, at 752 (“For the penitentiary system of today 147, at 752 (“For the penitentiary system note supra , supra RISON AND A , A P 53 (“The Attica Rebellion was the result of recognition, after decades of Attica is Termed as Bad as Before 1971 Rebellion B. The Law Responds with Lawlessness – Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 563 HEEHAN The New Prisoner 210 at 252 S But other observers questioned how much actually changed. how much observers questioned But other Morris & Hawkins, at 253. 211 USAN See S Fred Ferretti, Sostre, See id. Id. In the years immediately following the riot, its consequences for reform consequences for the riot, its immediately following In the years The McKay Report exemplified the official response to the Attica riot, exemplified the official response to The McKay Report jailhouse lawyer, saw the riot at Martin Sostre, New York’s preeminent 210 211 212 213 214 215 method of radical civil rights litigation combined the vindication of limited method of radical civil rights litigation thorough resistance in order to reveal but tangible rights with a strategy of the state’s denial of those rights.the fundamental contradictions within Oc- reality of what must be done has been made manifest through the process of reality of what must be done has been remedies.‘legal’ of elimination No longer shall we waste time and suffer injustices litigating civil rights cases in prolonged needless punishment and did in the 1950’s and 60’s.” [the state’s] oppressive courts as we 1976, at NJ69. painful exhaustion of all peaceful means of obtaining redress, of the impossibility of obtaining the justice within the ‘legal’ framework of an oppressive racist society which was founded on most heinous injustices: murder, robbery, slavery.”). were difficult to discern. in Facility at Green Haven Correctional A reporter and A.D., in there is B.C. as in Christianity observed that “[j]ust New York is B.A. and A.A. State penology there New York Attica.” is not a purely fortuitous development. It is an American invention for which we can justly claim the credit and must also bear the blame.”). The state’s failure to provide the inmates of Attica with these rights demon- The state’s failure to provide the inmates recourse in the law. strated to him the futility of seeking 2014] reform of prior the marks it bears and durable, has proven the system ever, movements. return to the state of at Attica seemed to mean a The return to normalcy place. to the inmate grievances in the first affairs that had led inmates’ The publicizing peaceful change by naming grievances, attempt to bring about had failed. with a reform-minded commissioner them, and working \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 33 9-JUN-14 13:37 sensitive to both the civil rights of inmates and to the state’s administration civil rights of inmates and to the sensitive to both the of the prison. more skeptical of the possibili- But the inmates tended to be in the wake of the riot.ties of legal reform Despite this skepticism, the inmates to file civil claims. courts remained available venues for legal victories and as further evi- Attica as a repudiation of his hard-fought to protect the rights of minorities. dence that the legal system was inadequate point-by-point through the Mani- In his analysis of the rebellion, he walked ought to have secured each right. festo, identifying which of his lawsuits 34923_hlc 49-2 Sheet No. 139 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 139 34923_hlc 34923_hlc 49-2 Sheet No. 139 Side B 06/09/2014 15:03:23 R R , 216 at viii ADICAL , P with the As the In this R -U — 24 (2d Cir. Some or 221 – 217 219 OVER IFE AS A C L Y TTICA , M A an investigation that led an investigation that — UNSTLER RACKING THE M. K 220 : T Rockefeller on the Attica Raid, From Boastful ILLIAM HOOT W S See URKEY T Sam Roberts, HE , T Decades Later, State Seeks Release of Report on Attica Uprising ELL see also , Sept. 12, 2011, at A24. B note 1, at 39. note 218, at 2. IMES supra , ALCOLM Malcolm Bell, a lawyer who joined the state’s investigative Malcolm Bell, a supra 31 (1994); M – N.Y. T , , Apr. 20, 2013, at A21. , 218 Thomas Kaplan, Inmates of the Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 23 ICKER to ELL 228 As Tom Wicker summarized it, “Not only did the State Police, the supposed upholders As Tom Wicker summarized it, “Not only did B See See W for the murder of guard Bill Quinn The one commutation was for John Hill, convicted IMES This political pressure was related to the state’s botched investigation of was related to the state’s botched This political pressure The state’s legal response to its own actions was compromised, but the The state’s legal response to its own Whatever their views on law, the law remained interested in the in- interested in the law remained their views on law, Whatever 218 219 220 221 216 217 AWYER court noted, the injunction came after retaliatory acts had already occurred. court noted, the injunction came after instance, political pressure succeeded in preventing what the operations of pressure succeeded in preventing what instance, political the law condoned. the retaking of the prison its own actions during nowhere. all of the records of this investigation have remained under seal since 1975, all of the records of this investigation the Attorney General of New though in the last year, Eric Schneiderman, York, has pressed for their public release. (1985). committee as an assistant to the Attica prosecutor, found that the state cov- to the Attica prosecutor, found committee as an assistant proceed with prosecutions. ered up the ultimate decision not to N.Y. T 1971). to Subdued inmates also filed lawsuits of their own, challenging both the retaking of the inmates also filed lawsuits of their own, prison and the reprisals by prison officers.injunc- an secured inmates The tion against retaliation. were The Second Circuit recognized that the inmates of whom, on the testimony below, have “at the mercy of their keepers, many abuse and mistreatment.” already subjected inmates to barbarous predictable results of missing, manufactured, and destroyed evidence, botched or superficial predictable results of missing, manufactured, interrogations (or none at all, in some cases), and manifest official perjury.”Wicker, Tom Foreword of the law, kill thirty-nine people in an orgy of wanton shooting, the State of New York then of the law, kill thirty-nine people in an orgy in investigating their own behavior allowed the same police to play the pivotal role and sentenced to twenty years to life. L 564and di- lawsuits rights civil gradualist between ground the middle cupying solutions. more radical toward was driven he political action, rect Review Rights-Civil Liberties Law Civil Harvard [Vol. mates.49 of the major sticking had been one from prosecution Immunity the riot.the negotiations during points in law- jailhouse a Rosenberg, Jerry up the order riot, publicly tore leaders during the and one of the yer in Attica be- the institution precisely punishment within the inmates from immunizing from prosecution. a provision immunizing them cause it failed to contain prosecutions fears, New York State initiated criminal True to Rosenberg’s though ultimately inmates for their roles in the riot, against sixty-two Attica inmates, whom he stopped the prosecutions of seven Governor Hugh Carey inmate. the sentence of one convicted pardoned, and commuted \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 34 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 139 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 139 34923_hlc 34923_hlc 49-2 Sheet No. 140 Side A 06/09/2014 15:03:23 R Francis Jan. 19, , 71 (1971). See – IMES N.Y. T , 760, 770 EASSESSMENTS . L.J. R OW H Id. The prison officials more di- The prison officials , 17 PENING 40 (2d Cir. 1991). 225 – 222 Id. , O The ambition was to finally close The ambition was 227 After describing the relevant Eighth the relevant After describing OOK B 224 Three decades of criminal prosecutions and Three decades of 226 note 18, at 79. Political Uses of the Law LOSING THE supra , : C UBIN Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 565 R These improvements are, of course, not to be taken lightly. These improvements are, of course, 19. – at *7 (“It has never been held that an order to use force only if necessary to & 228 Al-Jundi v. Estate of Rockefeller, No. CIV-75-132E, 1988 WL 103346, at *5 Al-Jundi v. Estate of Rockefeller, No. CIV-75-132E, Al-Jundi v. Mancusi, 926 F.2d 235, 239 Al-Jundi v. Mancusi, 113 F. Supp. 2d 441, 443 (W.D.N.Y. 2000).State York New Haywood Burns, the court collapsed the question of Rockefeller’s objective neces- of Rockefeller’s collapsed the question the court ONCLUSION For Some New Yorkers, the Attica Uprising Is a Current Event at 18 EELEY C 223 See See id. See See F Id. See The aim of this Note has been to unbury the dead and to recapture the The aim of this Note has been to unbury Civil suits continued for decades.Civil suits the riot has tended While analysis of 224 225 226 227 228 222 223 rectly responsible for the decisions to take back the prison also received for the decisions to take back the rectly responsible retaking, though not with respect to the violence of the qualified immunity reprisals. for the subsequent the book on this bloody episode in the history of the state. episode in the history of the the book on this bloody Amendment standards, the court found that necessary actions in response to actions in court found that necessary standards, the Amendment meet those standards. a prison riot did not civil suits ended in 2000, when Judge Michael Telesca of the Western Dis- 2000, when Judge Michael Telesca civil suits ended in for Attica inmates approved the $12 million settlement trict of New York State government. from the New York “[T]he response of the corrections officials was in general mindless and lawless; because not “[T]he response of the corrections officials was procedures followed by the prisoners, but only did they not respond to established grievance response was one of indiscriminate violence, of when the prisoners resorted to self-help the law.” wholesale slaughter, of failure to regard the 2005, at A18. sity into one of subjective belief. one of subjective sity into (W.D.N.Y. Sept. 28, 1988).28, Sept. (W.D.N.Y. an order to retake was necessary “The plaintiffs . . . disagree that authorizing such order, was motivated or abused at the time and that Rockefeller’s conduct, in by his political aspirations. be These claims do not derogate from the necessity that a decision made based on what was then seen to be transpiring.” reached a separate $12 million settlement with the families of the guards in 2005. X. Clines, intellectual world of the prisons of 1971. Even as the aftermath of Attica led the style of prisoners’ rights litigation the state to implement reforms, and the nation, progress has been pioneered in the South expanded throughout uneven. progress has been made along some dimen- To be sure, significant sions.judicial involvement in prison reform, Malcolm Fee- In their study of the Arkansas cases, inmates ley and Edward Rubin note that, following leaders for access to food or be could no longer be forced to pay inmate electrodes placed on their genitals by subjected to such brutalities as having prison staff. to focus on Rockefeller’s decision to send the state police to retake the the state police to decision to send on Rockefeller’s to focus prison, settle a violent prison riot and to rescue hostages is conduct of the nature just described.”). 2014] evi- easily found court the acts of brutality, specific with confronted When to stop it. acted and of wrongdoing dence \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 35 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 140 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 140 34923_hlc 34923_hlc 49-2 Sheet No. 140 Side B 06/09/2014 15:03:23 R R R R Brown Why Mass Even as However, 231 229 note 14. supra Schoenfeld, Heather Ann Thompson, with urged that overcrowding be remedied by and Realignment: Jails, Prisons, Courts, and Plata a right recognized in the recent 87. – — Id. See generally 165 (2013), for an assessment of the current state of the note 13. . it is also essential to recognize the complicity it is also essential , 131 S. Ct. 1910, EV 232 supra Furthermore, while addressing the worst forms of Furthermore, while addressing the worst , note 9, at 316.at 9, note throw people into prison at an astonishing “We 234 703 (2010). note 12, at 1578 . supra , IST Compare Plata LEXANDER 230 supra . H . C.R.-C.L. L. R M , A ARV RIEDMAN J. A decision. of prison conditions litigation have noted, But, as critics H F 233 the terror described by Jackson and Melville, and the dehumanization the terror described by Jackson and Melville, See, e.g. 131 S. Ct. 1910 (2011) (limiting prison population to 137.5% of original design capac- We can see some progress: at least Schlanger, Id. See , 48 , 97 The current state of the law of prisoners’ rights allows for challenges to The current state of the law of prisoners’ But even if the most egregious violations of prisoners’ rights are now prisoners’ rights are violations of if the most egregious But even — 232 233 234 229 230 231 responsibility for mass incarceration is laid at the feet of the rise of the polit- incarceration is laid at the feet of responsibility for mass minimums, and (including the war on drugs, mandatory ical right in America politics), “tough on crime” the Prison Litigation Reform Act of 1996 significantly reduced the fre- reduced significantly of 1996 Reform Act Litigation the Prison the and by narrowing the bar for complaints such suits by raising quency of relief. available v. Plata of prison reformers in tacitly legitimating the concept of incarceration. in tacitly legitimating the concept of prison reformers It is developments, but to recognize the contingency of these important not only those who would use that existed in 1971 among also to recall the optimism politics and social state, as well as among those who saw the law against the for more fundamental change.movements as opportunities argues Note This learned” perspective of post-Attica for resisting the closure and the “lessons prison reform. particularly egregious conditions prisoner abuse, these laws fail to speak to the structural violence of the pris- prisoner abuse, these laws fail to speak ons described by nearly all inmates. In the face of this psychic violence, laws barbarous living conditions provide predicated upon physical brutality and inadequate protection. prison movement of 1971 recognized this inade- The these cases continue to take for granted the basic structure of incarceration, these cases continue to take for granted the growth of incarceration rates over and in some sense have legitimated the past four decades. forbidden, the number of people subject to incarceration has grown dramati- has grown subject to incarceration the number of people forbidden, 1971.cally since represents an ambig- the incarceration rate This growth in for the prisoners’ rights movement.uous victory, at best, There is growing feature of Ameri- incarceration represents a defining recognition that mass centuries. late twentieth and early twenty-first can society in the Incarceration Matters: Rethinking Crisis, Decline, and Transformation in Postwar American Incarceration Matters: Rethinking Crisis, Decline, History ity); see also Margo Schlanger, Plata v. Brown Politics releasing inmates. law. rate. There has never been anything like it in American history. Penology is overwhelmed by the sheer pressure of bodies. The general public is not interested in rehabilitation, not inter- interested in reform or alternatives.ested in what happens inside the prisons, not only It wants to get these creatures off the streets.” 566 these cases. following the years in grew rapidly lawsuits Inmate Review Rights-Civil Liberties Law Civil Harvard [Vol. 49 \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 36 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 140 Side B 06/09/2014 15:03:23 Side B 06/09/2014 49-2 Sheet No. 140 34923_hlc 34923_hlc 49-2 Sheet No. 141 Side A 06/09/2014 15:03:23 Violence and Rights in the 1971 Attica Riot Attica 1971 in the Rights and Violence 567 2014] to the material attention year redirected of that the traumas before quacy, conditions of prison life. and remember its struggles would do well to We opened. space that it the intellectual \\jciprod01\productn\H\HLC\49-2\HLC204.txt unknown Seq: 37 9-JUN-14 13:37 34923_hlc 49-2 Sheet No. 141 Side A 06/09/2014 15:03:23 Side A 06/09/2014 49-2 Sheet No. 141 34923_hlc