
          Locking Up Liberty in the Atlanta Pen
          By Dolman, JoeJoe 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 

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 

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.
          
        
