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.

Cubans in Limbo

By Joe Dolman

Vol. 10, No. 3, 1988, pp. 8-9

The Atlanta Federal Penitentiary was weirdly luminous in the bleak November dusk. U.S. Army floodlights, hauled in on long flatbed trailers, bathed its granite walls and gray cellhouses. Hovering helicopters played thin beams of light into the prison’s courtyard. Yellow flames from the remains of the industrial building flickered over rooftops and walls. And across McDonough Boulevard, with this scene as a backdrop, dozens of television reporters stood before their own spotlights, nervously waiting to do 6 o’clock “live shots.”

The Cuban detainees had finally won our attention. In Oakdale, La., one federal lockup already lay in smouldering ruins as a hostage standoff there entered its third day. In Atlanta, inmates held more than a hundred prison workers captive. They were making a point: They would not be permanently separated from their families and deported to an uncertain future in Cuba without a fight.

It would be eleven more days before every hostage was freed unharmed. The riots were harrowing, destructive and wrong-but in the end, they did force the government to acknowledge one of the strangest lapses of justice in our history.

Since the 1980 Mariel boatlift, the Justice Department has imprisoned thousands of “excludable aliens” arbitrarily and indefinitely. Some were classified as dangerous and locked up soon after they landed here. Most were “paroled” into society but then ran afoul of police or immigration officials. Because Castro had forbid their return to Cuba, the feds held them without sentences in prisons and jails across the country. By November, six thousand waited in this limbo.

A few were dangerous: murderers, rapists and the like. Others had been convicted (or merely accused) of crimes as minor as marijuana possession. Some had done nothing more than violate technical parole rules. Many had family members in the United States. They were a collection of good people and bad, hardened criminals and victims of circumstance, hopeful strivers and chronic misfits.

Yet the government made no distinctions among them. As excludables, all were in effect legal nonpersons. Despite their years in the United States, they had no constitutional rights in the rule of the federal courts. They were thrown together in squalid lockups to be held until the Justice Department decided that freedom was appropriate, or until the day that Castro might allow their deportation to Cuba.

If this travesty is unique in our history, it does have an ugly cousin: the internment of 120,000 Japanese-Americans during World War II. The similarities are instructive. In both instances, the government-faced with an unfolding crisis-summarily took action against a specific ethnic group for reasons that seemed to make sense at the time. In neither instance did Congress, the Supreme Court or most citizens lift a hand to protest such un-American denials of freedom. On both occasions, the nation let its apprehensions overwhelm its ideals.

In 1980, crime was our great fear. It was not wholly imagined. Castro had sprinkled a small number of criminals (as well as mental patients) among the 125,000 refugees who left through the port of Mariel. Other refugees, accustomed to life in a totalitarian society, hadn’t a clue how to provide for themselves in a free society. Some turned to crime.

In 1942, subversion was the great fear. This was not an irrational worry, either. America was still reeling from the surprise attack on Pearl Harbor. Our West Coast might easily have been the next target. Anything was possible. Moreover, many Japanese-Americans did maintain close ties with the old country. Where did their loyalties lie? On signal, could a group of saboteurs mine our harbors? Bomb our oil pipelines? Destroy our shipyards? It was not beyond question.

The problem is: We panicked. In both cases, we decided the Bill of Rights was not up to the challenge at hand. The peculiarities of each case gave officials a way to wiggle out of their constitutional obligations, and they did.

On Feb. 19,1942, President Roosevelt acceded to a military request and authorized the Army to exclude, when necessary, any citizen or alien from any area on the West Coast. Instead of using due process of law to determine who was safe and who was not, the government simply rounded up all Japanese-Americans-indiscriminately-and packed them off to relocation camps.

A military officer criticized the internments in the October 1942 issue of HARPER’S. “The entire ‘Japanese Problem’ has been magnified out of its true proportion,” he wrote, “largely because of the physical characteristics of the people. It should be handled on the basis of the individual, regardless of citizenship, and not on a racial basis.” Yet two years later, the Supreme Court ruled that wartime necessity indeed justified this mass detention.

The Cubans face a different predicament. Excludable aliens have no constitutional rights because the United States can’t logically be expected to open its court system to any foreigner who shows up at its borders. But what happens when the government is unable to deport the people it wishes to exclude? There is only one reasonable approach. After a certain length of time, the government must trust the efficiency of its Bill of Rights. That is, it must prove its case against each person and, if successful, must ask a judge for an appropriate sentence. Yet forty years later, the Cubans fared no better before the Supreme Court than did the Japanese-Americans. The court upheld the denial of due process for Mariel detainees.

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As with the Japanese-Americans, prejudice is surely an underlying cause for such treatment. Gary Leshaw, lawyer for detainees in the Atlanta penitentiary, observed that if his clients were Scandinavians, say, instead of Cubans (many of them black), the government would never think of locking them away for years on end without due process.

With time, Americans have grown ashamed of the wartime internment. Last September, the House voted to appropriate $1.25 billion in reparations [In April, the Senate also approved reparations] to 62,000 surviving internees. The vote came after U.S. Rep. Norman Mineta of California read aloud a letter from his father, which recounted the family’s experience in a relocation camp: “We lost our homes, we lost our businesses, we lost our farms, but worst of all, we lost our most basic human rights.”

The Marielitos may also wait a long time for a public apology. Nevertheless, in an odd way, the November riots did help turn public opinion more to their favor.

The disruptions began when the government announced it had reached a deportation agreement with Cuba. Typically, no one had thought to brief the inmates. Only 2,500 Cubans may be deported, which means most detainees will stay here. But the inmates didn’t know that. All they knew was that they could be separated forever from their families (who would stay here) and returned to a place where they would have no guarantees of safety.

So they fought. Suddenly, the older exile community of Miami, fiercely anti-communist, embraced their cause. With that, the Justice Department began to show a new flexibility. And a revisionist line on the Marielitos emerged: Any group that preferred American imprisonment to a life in Castro’s Cuba perhaps deserved the benefit of the doubt.

Today, the government has established a review process to determine who should be deported, who should remain behind bars here, and who should go free. It isn’t due process, and it is still inadequate-but it is the government’s best attempt yet to deal fairly with the Cubans. Many prisoners are now scheduled for release. Meanwhile, congressmen Pat Swindall of Georgia (a religious right conservative), Romano Mazzoli of Kentucky and Bob Kastenmeier of Wisconsin have introduced a bill that would give the Mariel detainees certain due process rights. The measure is their best chance yet for fairness.

When World War II came to a close, not a single Japanese-American had been convicted of a crime against the United States. When the prison riots of 1987 ended, not a single hostage had been harmed. In retrospect, neither the Japanese-Americans nor the Cubans were as dangerous as we had imagined. But hindsight isn’t good enough. At a recent symposium on the detainees, Ira Glasser, executive director of the American Civil Liberties Union, put it this way: “The only true test of morality is when it counts. The only true test of morality is to take the fair position during the time that the victims are suffering, and not afterward, because there is no way to repair what happened.”

How can we recognize the fair position when it counts? We can start by adhering to constitutional principles-even when our instincts tell us to panic.

Joe Dolman writes editorials for the ATLANTA CONSTITUTION. His observations on the Cubans in federal prisons earned a nomination for the Pulitzer Prize.