By the end of the 1980s, 43 state prison systems and countless county jails were under federal court consent decrees, injunctions or both in an attempt to bring American prison conditions into line with some semblance of humanity. That was a time when prisoners were experimented on for medical purposes. The Arkansas prison system employed 27 civilian employees while the “guards” were shotgun-toting prisoners riding herd on the rest. The prison and jail population was also a fraction of what it is today.
While judicial reform played an integral part in the major shifts that took place, and for the first time in American history the judiciary recognized prisoners as something other than “slaves of the state,” many significant reforms occurred at the legislative level and within the prisons themselves as prisoners organized and mobilized. Forty years later prisons are like the rest of American society and have seen significant rollbacks on every single progressive reform enacted in the prior five decades, and for much the same reasons.
One thing that changed is the massive explosion of the prison and jail population from less than 300,000 prisoners to more than 2,300,000, which was a direct response to uprisings in American cities, largely by poor Black people. Mass incarceration has been a tremendous success for the American ruling class which, despite a widening gap between the rich and poor in this country and a worsening standard of living for 80% of the American population, has not only not seen any resistance, but has not experienced any significant urban insurrections since the 1992 Rodney King riots. Which is an enviable track record for any oligarchy.
As the political power of prisoner rights advocates has waned, litigation has increasingly come to be the primary – and indeed in many places, the sole – vehicle, if not for reform, then to hold back the wildest excesses of the American police state. But the U.S. federal judiciary has also retreated from its earlier promises to uphold the constitutional rights of all Americans, even those in prison. And all too often prisoners, like many non-prisoners, have rights but no remedies.
An interesting perspective on the evolution of prisoner rights in the U.S. was once provided by my friend and former PLN columnist John Midgley, the executive director of Colombia Legal Services in Seattle. I asked him in the late 1990s if he thought things were better or worse for prisoners post-Attica, in the PLRA, AEDPA era. John responded that since he had started representing prisoners in the early 70s there had been many significant changes for the better. “Whereas today the prison doctors are incompetent and unlicensed, in 1973 there were no prison doctors. Medical care was provided by prisoners who had been Navy corpsmen. Today there are standards that are ignored and violated, back then there were no standards of any type.” Such is progress.
I think it is always relevant to note where the U.S. stands in comparison with other countries. China banned corporal punishment of prisoners in 1954 by legislation. A federal judge in Tennessee was the last to ban flogging of prisoners in the U.S. in 1974. Tellingly, neither the federal government nor any state will go so far as to enact a statute banning torture or physical abuse of prisoners. And the U.S. duly exempts itself from the U.N. Convention Against Torture.
While the massacre at Attica was the bloodiest day on U.S. soil since the Civil War era (it would later be surpassed by the 1993 massacre of the Branch Davidians at Waco), it is also significant in that it was the last time an uprising by American prisoners was ruthlessly suppressed by mass killings. The universal and worldwide revulsion at the Attica slaughter, coming at a time when the nightly newscasts featured the American genocide in Southeast Asia, brought home the connection between the two and appeared to have dampened enthusiasm for similar incidents later on. Notably, the uprisings by prisoners in Santa Fe, New Mexico in 1980 and Lucasville, Ohio in 1993 were eventually resolved without a storming of the prisons. But unlike the amnesty at Attica and Santa Fe, dozens of prisoners were convicted and five sentenced to death for their roles in the Lucasville uprising.
American prison and jail conditions continue to worsen by almost every measurable means. In 1971 it was said that “Attica means fight back!” For the past twenty years, however, it has stood for “rollback” as the modest gains made by prisoners have been steadily eviscerated. In the 1970s, dozens of independent prisoner rights publications consistently reported on prison news and struggle and gave prisoners a voice. Today it is only Prison Legal News. For the past 21 years, we have reported on the growth of the American gulag coupled with the shrinking rights of its captive population.
The 40th anniversary of Attica should give us pause to reflect on where we have been, where we are and where we are headed. We can also ask why other industrialized capitalist countries don’t have modern prison massacres of their own to commemorate and remember.
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