Locking Up Liberty in the Atlanta Pen

By Joe Dolman

Vol. 8, No. 6, 1986, pp. 3-5

The granite fortress occupies the ridge on McDonough Boulevard with imperial authority. Its gray steel and concrete outer wall stands as tall as thirty-seven feet and as thick as four feet; it seals off twenty-eight acres. In its eighty-five years, the bloody and decrepit Atlanta Federal penitentiary has housed prisoners as different as Al Capone and Eugene V. Debs. Yet nothing can quite match the task to which it is now put.

Today the pen holds some eighteen hundred Cuban inmates in absolute disregard of constitutional principles, in conditions of crowded squalor and in an atmosphere of persistent violence. It contains a travesty that has few parallels in our history.

Its inmates were among the 130,000 Cuban refugees who arrived in the United States in the 1980 Mariel boatlift. Between three hundred and four hundred of them have been imprisoned in Atlanta for more than six years; the others trickled into the pen later, after an initial period of freedom in this country. As "excludable aliens," they are not entitled to constitutional protections. Yet as Cubans, Fidel Castro has forbidden their return home. So year after year, the federal government "detains" them. The question of who remains locked up and who eventually goes free is determined by administrative decree; terms of imprisonment are open-ended.

It is a policy that has proven disastrous. Between May 1980 and September 1986, there were ten inmate murders in the pen, seven suicides, at least one hundred and fifty-eight serious suicide attempts and more than four thousand episodes of self mutilation. While Atlanta's Cuban inmates are just five percent of the total federal prison population, they have accounted for ten percent of the system's homicides, more than a third of its inmate-to-staff assaults and half of its inmate-to-inmate assaults.

Now maybe it is reasonable to wonder: aren't most of these inmates violent criminals anyway? Murderers, rapists and the like? Well, that is what the U.S. Justice Department has long argued. But the truth is, the Cuban prisoners are a diverse lot.

The first wave of inmates wound up in Atlanta after they answered "yes" to the questions about previous imprisonments in Cuba. Never mind that some had simply misunderstood the question or that others had done time back home for such crimes as stealing food. All were sent to the pen, where their institutional behavior, not their purported crimes, determined whether they would be released. (Cuban records are not available to federal officials.)

Those who didn't go straight to the slammer--the overwhelming majority of refugees--eventually entered American society as "parolees." Most handled the adjustment well. Still, paroles could be revoked at athe government's pleasure, and as the number of original inmates declined, failed parolees took their place. The feds revoked parole if a refugee had no visible means of support, no fixed address or no American sponsor. Some refugees wound up in the pen for violating curfews or travel restrictions or for failure to participate in certain government programs.

To be sure, others landed in the pen after they ran afoul of American laws. Some were convicted of serious crimes here such as murder, armed robbery, drug dealing and assault. But others were sent to Atlanta for lesser infractions like driving while intoxicated. Sometimes criminal charges alone (rather than convictions) could send Marielitos to the pen. Sometimes regufees were transferred to Atlanta after they had completed sentences in state and city lockups.

Some do leave federal custody eventually, after Immigration and Naturalization Service decides they are eligible. Interestingly, of the two hundred inmates INS has released to halfway houses since September 1985, not a single person has gone back to prison. Until recently, the feds clung to the flimsy hope that the other Marielitos would remain behind bars until they could be returned to Cuba. Although two hundred and one inmates were


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returned during a brief thaw in relations several years ago, Castro scrapped the program when the White House put Radio Marti on the air.

Finally, in November, the administration softened its stance. It announced a program to move hundreds of Cubans (nobody knows the precise number yet) from Atlanta to a new minimum-security lockup in Oakdale, Louisiana, in preparation for parole. It's an improvement, but a limited one. INS standards for eligibility remain vague; the agency simply says it will look for inmates with good prison records whose offenses were not violent. Moreover, the feds plan to replace them with Marielitos considered unreleasable who are now imprisoned in other institutions. (In all, the government has two thousand, five hundred "detainees" in custody.)

So, despite the new parole policy, the dilemma will remain. It is exacerbated by this fact: the pen has long been considered a dangerously dilapidated place. A prolonged series of murders by American inmates in the late 1970s made the feds decide to close it, and by 1980 the U.S. Bureau of Prisons had begun to relocate the inmate population. Then came the Cubans.

At times since the arrival of the Marielitos, the overcrowding has been almost unbelievable. When investigators from a House judiciary subcomittee visited in early 1986, for example, they found as many as eight men jammed into cells that measure two hundred and ten square feet (an average of seven feet by four feet per inmate). A stem-to-stern renovation is in the works now, but details have not been released. In any case, the remodeling will be decades late. Today the joint is a monument to outdated notions of penology.

Its five massive cellhouses resemble--literally--warehouses inside, where one sees nothing but steel bars, brick walls and concrete floors. Each house contains five tiers of dark, fetid cells. Human voices and clanking doors and food trays create a mad cacophony that would have inspired Dante to new levels.

Until recently, about half the pen's inmates were held in their cells for all but an hour a day as punishment for a 1984 riot (that consisted mainly of expensive vandalism). As of last March, only twenty-seven of the staff's two hundred and seventy-nine guards spoke Spanish. In late September, reports in the Atlanta media disclosed a federal investigation of charges that payoffs were made to INS officials in exchange for the early release of some inmates. Apparently, the case is still open.

In such conditions, it's no mystery why prisoners routinely get violent or lose their sanity and mutilate themselves. The real question is: Why hasn't the government done more, and acted sooner, to relieve this situation? Ultimately, the government is a prisoner, too- to a policy that costs $40 million a year and puts guards and prisoners alike in constant danger. It's not as if suggestions for a resolution to this mess were never heard. In fact, three years ago, U.S. District Judge Marvin Shoob of Atlanta formulated a rather neat solution.

He ruled that the government does have the authority


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to detain excludable aliens indefinitely. But, he said, "after an initial period of time during which detention may reasonably be imposed," further incarceration must be justified with evidence that a detainee, if released, is likely to abscond, pose a risk to national security or pose a threat to American persons or property.

Shoob granted the inmates limited constitutional rights--including a right to counsel, a "presumption of releasability," and a right to prior written notice of factual allegations supporting continued detention. In short, he told the Justice Department: Either prove your cases against the inmates or set them free. Unfortunately, this order and others like it have been shot down by an obstinate Eleventh U.S. Circuit Court of Appeals.

The volleys between the two courts have grown remarkably personal. In January 1985, Circuit Judge Robert S. Vance complained that Shoob had exceeded his "very, very narrow" authority and poached on the prerogatives of the executive branch. "The issue here is whether the president of the United States or the attorney general...has to go into Judge Shoob's courtroom and prove to him why he did what he did," Vance grumbled in an opinion. Earlier Vance had told an attorney for the inmates in court: "The government can keep them in the Atlanta pen until they die."

For now, Vance's word is law--but what a strange kind of law it is. The Justice Department holds itself hostage to an administrative nightmare. It inflicts on the Cubans misery equal to anything Castro might have devised. At bottom, its policy expresses lack of confidence in some bedrock, American, tried-and-true constitutional principles. What is everyone so afraid of?

Joe Dolman is an editorial writer for the Atlanta Constitution.