Our Prison Work
In 1969, when the PLO began, there were less than 300,000 people in U.S. prisons, federal, state and county jails—about 160 people for each 100,000 of our population. 30 years later, there are almost 2,000,000 in prisons and jails, another 300,000 under parole or probation supervision and 100,000 children in juvenile jails - a total of about 645 people per 100,000. This draconian rise in incarceration rates has specifically targeted people of color, with African-Americans, 13% of the population, now making up more than 50% of the prison population, and Hispanic prisoners constituting an additional 17%. A Black person is 7 times more likely to go to prison than a white person and almost one-third of Black men between the ages of 20-29 are under some form of criminal justice supervision—prison, jail, probation or parole. The last decade has seen an increase of more than 200% in the number of Black women in federal and state prisons. In states in which convicted felons are permanently disenfranchised the number of Black men who will be ineligible to vote will rise to about 35% by 2020, with cities like Houston, Memphis, Miami and New Orleans having 50% of their Black male populations ineligible to vote.
Prisons are big business, a 40 billion dollar a year industry, with corporations competing for super-profits in the building, running and servicing of prisons, and having economic interests in increasing the level of imprisonment. Despite the falling crime rates, we are sending more and more people to prison, who clearly do not belong there—three-fourths of the people who have gone to prison in the last decade were sent for nonviolent drug and property offenses, populating a prison system with almost one million nonviolent offenders. Criminal justice policy, fueled by racism and fear, manipulated by politicians and the media, not crime itself, is responsible for the emergence of U.S. gulags that surpass any place or time in history. Over the last 30 years, we, like many others, have borne close witness to the emergence of a prison-industrial complex, whose primary function is to warehouse and control people of color and poor people and to prevent any militant resistence to the government and its policies. Rather than jobs, education and opportunity, the policy of our government is to offer jails and prison. In a growing number of states more tax money goes for prisons than education and powerful guard unions which give millions of dollars to political candidates have helped to pass laws that send more people to prison for much longer periods, thereby assuring their own job security. Over the last three decades, we have tried to play a part in fighting against these reactionary forces and for the rights of prisoners. We have been involved in significant cases and political campaigns in which there were some important victories. However, our work along with that of many others, has not stopped this imprisonment juggernaut. Given our special access as lawyers to prisons and our close involvement generally with the criminal justice system, we must continue to find ways to expose the lie that more prisons and harsher sentences will create a safe and healthy society.
The Beginnings of Our Work
As we emerged with the idea of a law office that would devote itself to working with those fighting for radical social change, we immediately learned that our clients’ resistence meant the criminal courts, prison or jail for them. Many militant activists and their supporters in the liberation movements of the late 60’s and seventies wound up in prison. Already in prison were Muslims and other politically conscious people who had been radicalized by the political climate in the country and were organizing and litigating for religious and other rights. In addition, Guild and other lawyers had begun to litigate in federal courts and found some sympathetic judges who rejected the idea that prisoners were simply “slaves of the state” with no constitutional rights. It was in this period of a politicized prison population, with the beginnings of court intervention and the existence of a number of outside organizations working in support of prisoners, that we began our prison work.
Much of our work over the next two decades was in response to the prison authorities’ efforts to isolate and repress the leaders of resistence inside the prison. We were part of some of the first legal\political efforts to fight the creation of control units and behavior modification programs in the state and federal prisons. In the early 70’s, the Illinois prison system was one of the first in the nation to experiment with special isolation units for militant prisoners. The “Special Programs Unit” (SPU) in which prisoners were transferred to strip cells covered with chicken wire, with a promise that their conditions would incrementally improve if they behaved, was challenged in a law suit brought by our office, the ACLU and Guild attorneys, Armstrong v. Bensinger. It was our first taste of working with prisoners in class-action litigation and our first real exposure to life behind the walls. We were successful in our due process challenge and because of the resistence of the prisoners and the litigation, the IDOC temporarily abandoned its special isolation program.
We also became deeply involved at the U.S. prison in Marion, Illinois fighting the efforts by the federal Bureau of Prisons to create special long-term isolation units. In two major class-action law suits, Adams v. Carlson and Bono v. Saxbe, we challenged the indefinite confinement of prisoners in isolation and the use of behavior modification techniques, including the use of solid steel front cells called “box cars.” In Adams we were able to get the Court of Appeals to order the release of more than 150 prisoners confined in isolation for over 18 months, on the grounds that such indefinite isolation violated the 8th Amendment. In Bono, however after years challenging the placement of prisoners in indefinite isolation without due process or objective criteria, we were unable to force the closure of such units. Today, control units proliferate, sanctioned by the courts and accepted as a necessity by many corrections “experts.”
We soon learned that those who work on behalf of resisting prisoners may well be targets of repression themselves. During the Adams litigation we were falsely accused of smuggling gun powder into the prison and prohibited from have any contact visits with our clients. Several years later, we and the Marion Prisoners Rights Project (MPRP) were accused of fomenting a prison-wide work stoppage and smuggling out prisoners’ demands to the media. MPRP lawyers were banned from the prison and only after months of litigation were we able to get the Seventh Circuit to order that the lawyers be allowed back into the prison. Abel v. Miller.
It was during this period at Marion that we met Puerto Rican political prisoner, Rafael Cancel Miranda, Republic of New Africa President Imari Obadele and Republic of New Africa citizen Akinshiiju Ola, Crusade for Justice leader, Alberto Mares, Black Liberation Army prisoners, Herman Bell, Sundiata Acoli, Gabe Torres, Native American prisoner Leonard Peltier and many others. These relationships forged a deep understanding in us of the importance of supporting the freedom of U.S. political prisoners and dictated a critical part of our subsequent work on behalf of prisoners. One of those prisoners on whose behalf we have worked for over two decades is James “Yaki” Sayles, a writer and African-American liberation theorist, who we have represented annually before the parole board for almost 20 years. Our work with Yaki is also related to some of our political coalition work challenging the repeated and arbitrary denials of parole to C# prisoners - a special group of long-term Illinois prisoners.
Our work at Marion continued for almost 20 years, litigating, advising and speaking out against the injustices there. During this period we worked first with the National Committee to Support the Marion Brothers and later with the Committee to End the Marion Lockdown (CEML), a group that is till active today, organizing and educating about prison control units and the racist nature of the criminal justice system.
Attica
Much has been said and written about the courageous rebellion of the Attica Brothers and the vicious state murder and torture that accompanied the retaking of the prison in September 1971. 39 were killed, 100 seriously wounded and a thousand more systematically brutalized.
For us, Attica has been a defining moment in the history of the office. Working closely with the Attica Brothers in the aftermath of the massacre and realizing the enormity of the state terror, including its willingness to sacrifice its own people, the hostages, deepened our commitment to work for justice for the Attica Brothers and all prisoners. In 1971 we embarked with the Attica Brothers on a 28 year odyssey that continues to this day.
First, we were involved in the effort to defend against 62 felony indictments and were part of the political campaign which forced the governor of New York to finally grant amnesty to all the brothers who were still awaiting trial or had been convicted. Since 1974, along with Liz Fink and our other colleagues in New York, we have been involved in a class-action civil rights suit on behalf of the brothers who were shot, killed, denied medical care and systematically beaten and tortured. We eventually won a class-wide liability verdict against a supervisor for allowing the brutality to take place and damage awards for two class members—$4 million for our close comrade Frank Big Black Smith and $75,000 for David Brossig, only to have the Second Circuit reverse the liability verdict and the damage awards, although the court recognized that the evidence of systematic abuse was “very substantial.” We are now forced to start again, 28 years later, with limited resources and after many brothers have died, including our beloved friends, Akil Al-jundi, Herb Blyden, and Roger Champen. We are hopeful that the case can be settled, but if it cannot we are committed to continue to be part of the effort to get justice for the Attica Brothers whose sacrifice and courage will never be forgotten.
Victories Along the Way
There have been successes in our prison work over the last 30 years. We won a substantial jury verdict on behalf of Maxine Smith, a jail house lawyer at Dwight women’s prison, who was harassed, isolated and denied the right to help other prisoners. We won two major victories in the U.S. Supreme Court—Carlson v. Green, on behalf of the estate of a prisoner who died as a result of the denial of medical care, in which the Court established the right to sue for damages directly under the 8th amendment, and Saxner v. Cleavinger, on behalf of a Terre Haute prisoner, establishing the right to an impartial disciplinary hearing officer.
We were part of a large group of lawyers, including many leading African-American criminal defense attorneys, who successfully defended the Pontiac Brothers, 17 young Black men who faced the death penalty for the deaths of three prison guards during a riot in 1979. We put the prison conditions on trial and all were acquitted or had charges dismissed after a several month trial.
Along with the ACLU National Prison Project and several other civil rights attorneys, we sued the Women’s High Security Unit in Lexington, Kentucky, where an experimental unit in small group isolation was initiated and where several women political prisoners were sent. Baraldini v. Meese. The district court ruled that the placement of the political women in the unit violated their First Amendment rights. Although the case was reversed on appeal, the political opposition to the unit forced its closing. Today, however, there are control unit prisons in the federal system and in almost every state, including Illinois. While the possibilities for closing down these units are slim, there have been successful efforts to eliminate the most harsh conditions and to get some of the more psychologically damaged prisoners transferred.
Today
Today our prison work is substantially reduced. Prison litigation has become very onerous, with the rights of prisoners cut way back by the Supreme Court and the new Prison Reform Litigation Act. The political leadership and consciousness once prevalent in prison, has been diminished and isolated. Young drug offenders, doing draconian sentences with no hope and little political awareness make up a great deal of the prison population. Prison litigation is an expensive, frustrating undertaking, usually far away from home, with a limited likelihood of success. However, litigation is important, and we salute the lawyers and the pro se prisoners who are actively involved in fighting in the courts for the rights of prisoners.
Despite our reduced level of prison litigation, we recognize the critical role that prison plays as a pillar of repression and control. How we expose and attack this burgeoning prison-industrial complex is a question that all progressive people must confront. Even as the landscape of litigation has gotten much more difficult, we have seen recently the stirring of activism across the country in opposition to criminal justice policies that continue to fill our prisons with young people who do not belong there. A national coalition of groups under the name “Critical Resistence” has been organizing and educating and there are many other local groups tackling issues that effect the rights of prisoners and their families.
This year we and other lawyers brought a class-action suit on behalf of families and loved ones of State and County prisoners in Illinois who are being victimized by a conspiracy between the major phone companies and the governments to charge discriminatory and excessive phone rates for calls made by prisoners to people on the outside. Arsberry v. State of Illinois. The rates for prisoner calls are 5-10 times higher than calls made by non-prisoners, and millions of dollars in super-profits are shared by the phone companies and the state and country treasuries. In 1997 alone, the State of Illinois made 12 million dollars in “kickbacks” from the phone companies in exchange for allowing the companies to force families and friends to accept collect calls from prisoners at the highest possible rates. This prison phone rip-off is happening all over the county and is a classic example of the transformation of the U.S. prison system into profit havens for multi-national corporations. The Prison Phone Project, a joint project of the Committee to End the Marion Lockdown and the Prison Action Committee, is organizing family members in opposition to this phone gouging and we are working closely with them.
We are also involved in litigation challenging the policy of randomly strip searching family members who visit their loved ones on death row in Pontiac. Burgess v. Lowery, Smith v. Lowery, Smysor v. Lowery, Smith v. Lowery. We are seeking to enjoin this effort by the Illinois DOC to discourage family visits, and to obtain damages for those who were victims of this practice.
As the new millennium approaches we must find ways to use our skills and experience as progressive lawyers to fight a prison system which controls and destroys people of color. While well-placed litigation is one tool, we must also expose the prison industrial complex and the government’s policies in all our work within the criminal justice system and in our public discourse.
