On September 11, 1972, one year to the day after the end of the Attica prison riot, the Special Citizens' Commission appointed to investigate the riot issued its official report. Although the report was beyond question a government document, it did not resemble one. The chairman, Dean Robert McKay of the New York University Law School, later explained that in order to achieve the widest possible circulation at the lowest cost to the state, the commission had given an advance copy to Bantam Books. Bantam then published the report in paperback form with a glossy cover bearing a lurid photograph, and marketed it at newsstands and cigar stores.¹ The book was illustrated with 64 photographs including news shots made during the three days when the prisoners held control of Attica's “D” Yard and carried on what may well have been the most disorderly, least private, life-and-death negotiations in the history of the world. In addition, the book contained official pictures of the bloody and tragic recapture of the prison by force of arms, and a group of what might be called art shots, giving the impression of normal prison life at Attica, if there could be such a thing in the months following the outbreak.

Several upstate legislators complained loudly about the manner in which the document was. issued, terming it impolitic and sensational, but the publishers are somewhat disappointed by the actual sales of the book. Slightly over 100,000 copies have been printed, and no one expects any more. Nevertheless, Attica has been reviewed favorably in a number of newspapers and has been featured on the front page of the Sunday New York Times Book Review. Already it is being used as established authority by editorialists, columnists, and others who regard it as a suitable companion to other reports by government commissions, like the McCone, Kerner, and Scranton commissions, appointed in the past few years to investigate social disturbances in other milieus. Moreover, it is becoming one of the centerpieces in the newly awakened preoccupation with the issue of prison reform. For years Americans professionally concerned with correction have been trying to interest the public at large in their problems and their need for vastly increased public funds to bolster education and vocational training in existing prisons, and to construct new, smaller prisons in which inmates, more carefully classified, would be dealt with in ways more likely, it is hoped, to bring about their rehabilitation. Only recently, however, has penal reform emerged as an issue for widespread public discussion, mainly no doubt because of the surge in interest in crime in general. Officials and writers as varied in their motives and in their political views as Ramsey Clark, Chief Justice Warren Burger, Tom Wicker, and Truman Capote have all been saying that the correctional institutions in the United States are not correcting their inmates and that something has to be done.

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To be sure, the Attica Special Citizens' Commission did not come into existence because the State of New York wanted a general examination of its correctional system. It was formed within a few weeks of the recapture of the prison. Public shock had reached a peak when, 39 people having been killed in the course of the recapture, the autopsies proved that the ten who were guards had been killed by their rescuers, not their captors. In view of the general suspicion which now regularly greets all announcements from the halls of government, the restoration of confidence required some kind of impartial report on this extraordinary turn of events. Consequently the Chief Justice of the Court of Appeals and the Presiding Justice of the four geographic departments of the Appellate Division of the Supreme Court agreed to appoint a special commission to investigate the Attica riot.

Having hastily established the commission, the Justices, along with other public officials, may have wondered what exactly they had wrought. It soon became clear that the commission's investigation, separate and independent from the criminal investigation simultaneously undertaken by an assistant attorney general acting as special prosecutor, could endanger the rights of those interviewees who might later be subject to prosecution for acts committed in the course of the riot, the recapture, or the subsequent reprisals. Alternatively, any offering of immunity to witnesses by the commission might endanger the criminal prosecution itself. The commission spells out its initial juridical problems in the report; it ran into further trouble after the report was published, when the special prosecutor sought to subpoena its confidential records to assist him in his own investigations.

The constraints imposed by the ambiguity of the commission's charge shaped the character of the report. Although the commission staff interviewed many hundreds of inmates and officers who were at Attica during the riot, it did so on a confidential basis, which meant that the names of witnesses could scarcely be used in the text. One never knows how much of the data was provided by a single witness or by a few witnesses, nor has the reader any way of gauging the relationships among anonymous witnesses. The unattributed indirect quotation becomes the style of choice: only high officials, who have no privacy, and a few lesser mortals who were willing to give their names or who, by dying, passed beyond caring, are identified by name. The accounts of separable episodes in the course of the riot and its aftermath are precisely what the term implies: accounts written by members of the staff, some better than others, many repetitive. The indirect quotation and the absence of attribution prevent the reader from assessing the consistency of the testimony on his own.

These pressures of form made it inevitable that the report would be regarded by the commission as more important for its discussion of prison life and prison conditions than for its revelations about the riot. Those who remain interested in the questions raised by the events of the riot and its aftermath—who killed whom, how, and when, and whether there was a gentler way to retake the prison and release the hostages—will await the results of the criminal proceedings. Meanwhile there is the more general picture painted by the McKay report. What does it tell us about the Attica institution and about our prison system as a whole?

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II

According to the McKay commission, the events at Attica can best be understood as an expression of bitter resentment on the part of the inmates against the facts of life in a maximum security prison in the State of New York at this time. Conditions in Attica—one of five maximum security prisons in New York—are not brutal; force is not used deliberately on prisoners, nor are the physical surroundings unsafe or unhealthy. The problem, according to the commission, is the utter incapacity of the prison system to meet the psychological and social needs of those committed to it by the courts. At Attica, in line with a system in which the commission notices scarcely any changes since the opening of New York State's Auburn prison in 1819, inmates are confined to their individual cells for about 14 to 16 hours of the day; they work at uninteresting-jobs for about 5 hours a day; they are permitted to walk, under supervision, from their cells to the mess halls for meals; and they can participate in limited outdoor recreation in yards holding about 500 people each. After having experienced this deadening routine for an arbitrarily determined number of years, remote from their families, deprived of normal sexual life, their mail censored, their clothing drab and repressive of individuality, their work hardly compensated at all, they are released into society with the stigma of their prison record attached and expected to conform to its demands.

Nor does the basic physical routine of prison tell the whole story. The commission reports that on top of this physical system there have been encrusted two separate social systems, each of which imposes its special burden on the inmates. The first of these is the system of habit, involving traditional ways of treating prisoners, traditional views of the value of unquestioning obedience, of the importance of stifling nonconforming behavior and of withholding trust. This system of habit finds expression in a body of rules by which inmates must abide, even though the correctional officers treat the inmates with what a majority (according to the commission) considers deliberate capriciousness the better to assert their authority over them. Among the elements included in the system of habit are poor food, inadequate medical services, inadequate library and recreational facilities, arbitrary punishment in the “box,”² improper searches of cells, and pointless censorship of mail.

The second of the two systems engrafted onto the physical routine of Attica is the system of racism. Either because non-whites are prosecuted more vigorously than whites, or because discrimination forces non-whites to resort to criminal acts to survive, black and Hispanic inmates make up a far greater proportion of the population of Attica than those groups do of the population at large. Conversely, they make up a very small proportion of the custodial force of Attica. Thus the commission finds not only that the prison system is in itself a further and final refinement of racism, but also that racism is given an opportunity to flourish within it. For the racial and cultural differences that divide the inmate population from the custodial force have serious consequences. At best, the correction officers fail to understand the reactions of their charges and tend, for example, to take at face value forms of speech and epithets which may have a far less serious meaning on the other side of the racial barrier. At worst, the social disparity inspires hatred on the part of officers to whom the helpless inmate has come to symbolize threats of change in the way of life to which the officers are devoted. A special manifestation of this worst of possibilities is that the racial difference may provide just that bit of rationalization which will release the suppressed sadism of the white correction officer with—as the inmates perceive the case to have been with George Jackson—murder officially disguised as law enforcement the result.

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All these indignities might have been borne peacefully by the convicts of an earlier day, but the commission tells us that Attica is now catering to a “new breed” (the term is used frequently in the report) of black inmate who refuses to accept society's description of him as a lawbreaker who should be penitent for his misdeeds. Members of the “new breed” see themselves as the victims of an oppressive society, and they are determined to maintain their newly discovered pride and independence even in prison through political action and protest. In July 1971, a group of such “new-breed” inmates (apparently six in number), calling themselves the Attica Liberation Faction, sent a manifesto to Russell Oswald, Commissioner of the New York State Department of Correctional Services in Albany, demanding changes in a number of rules and regulations at Attica. Commissioner Oswald acknowledged receipt of the letter and wrote back that he was taking the suggestions under advisement, but when the months [sic] between July and September passed without constructive action, tensions rose in Attica. On September 11 it was this tension, the commission tells us, which finally exploded.

The immediately precipitating incident was an altercation on September 10 between two prisoners in the yard in which the 500 inmates of “A” Block were taking their recreation. One participant in the altercation was never identified, but a correction officer, seeking to intervene in the fight, was himself punched by the known participant. This incident was quickly followed by what we are told was the unpremeditated massing of nearby inmates around the two principals and the intervention of a third inmate. In the face of the massing, it was impossible to impose disciplinary punishment on the offending inmates. The next morning, however, it was decided that 5 Company—the company to which one of these inmates belonged—should be sent back to its cell block after breakfast instead of being allowed as usual into the yard. While the company was being escorted from the mess hall, its members attacked the escorting officer. Shortly afterward there was a general eruption of most of the inmates in “A” Block. At this point, the gate which cuts off “A” Block from the rest of Attica gave way under the human pressure of the rioters, and within a remarkably short time, the rebellious inmates were in control of almost the entire prison. Part of the prison, containing almost half the inmates, many of whom had chosen not to participate in the rioting, was soon recaptured. But the rioters and their hostages were left in control of “D” Yard from which, three days later, they were ejected after a bloody assault with firearms.

This assault—the report continues—provided a violent confirmation of the habitual attitudes of the correction officers and the police toward prison inmates, and of the racial attitudes which stiffened the usual stereotypes. The rebellious inmates were given no clear indication that official patience had been exhausted and that deadly force was about to be used to recapture the prison. The type of ammunition employed in the shotguns of the police—buckshot—was far too lethal for situations involving massed human beings. Correction officers, many of them too emotionally upset by their own experiences and the injuries and threats to their friends, armed themselves in contravention of the recapture plan. Medical services were not sufficient to take care of the injuries that could reasonably have been expected from the final assault. Unnecessary brutality, accompanied by verbal racism, was used in returning the prisoners to their cells. Conditions were shameful for days afterward. And all this resulted from the basic institutional failure of the prison system to rehabilitate its charges, when the technique for rehabilitation is readily available.

In short, the McKay report's account of the Attica riot is similar to the account of other civil disturbances of the past few years given by earlier official reports like those of the McCone, Kerner, and Scranton commissions. The Attica riot is seen as a spontaneous and nonpolitical eruption in response to justified grievances too long gone unredressed by insensitive authorities.

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III

The plausibility and consistency of this account are supported at a number of points by facts which are amply corroborated by general experience. It is a fact that blacks are represented among all New York State prison inmates in a much higher ratio than in the general population; and among the correction officers in a much smaller ratio. It is a fact that the tacit mutual understanding between correction officers and inmates is perhaps the essential element in the social system of a relatively peaceful prison and that such understanding is much more difficult to achieve in the face of racial tension. It is also true that prison work is uninspired; that the level of pay is very low (unless one includes the cost of lodging, board, and guards); that the problem of prison sexuality looms over the personal lives of the inmates; and that the number prepared by prison to lead more constructive lives outside after release is disappointingly small.

For all this, however, the McKay report, taken as a whole, is seriously flawed by a tendentious reading of the situation at Attica. Sometimes it omits facts which might cast doubt on its conclusions; sometimes it uses such devices as quotation marks to cast doubt by innuendo on attitudes it finds uncongenial, while legitimizing other suggestions of which it approves; sometimes it makes outright factual errors, usually in the direction of exaggerating the conditions it describes; sometimes, by permitting many pages of text to separate related facts, it splinters rebuttal points that would otherwise be much clearer to the reader.

Perhaps the best way to illustrate all this is to examine how the report handles the question of whether the riot was spontaneous or planned—a question the commission itself considers central to its entire investigation.

Beginning, then, with the announcement that there is no evidence to sustain the charge of “plan” or “organization” in the starting of the riot, the commission proceeds to declare that what evidence it has “points in the other direction.” This “pointing” description is based on two major bits of inductive reasoning. The first is that if the riot had been planned, it would have started not in a barred corridor but in the mess hall or the yard, where many more inmates could have become involved from the outset. Now it is unquestionably true that a maximum-security prison is most vulnerable in those areas in which a large number of men are gathered. But the Attica mess halls are protected with a series of tear-gas jets under the control of an officer whose post is inaccessible to the prisoners. Everyone in Attica knew about the gas jets which are in full view along the walls. Thus the last place one would expect a planned riot to start at Attica would be the mess hall where any serious disturbance would be quelled immediately by a flood of gas into a relatively confined indoor area. Yet the McKay report omits any mention whatsoever of the gas jets.

As to the yard, the commission's own narrative makes it quite clear to the reader, if not to the commission itself, that it was precisely at the moment when the members of 5 Company realized that they were not to be permitted into the yard as usual after breakfast on the morning of September 11 that they assaulted their guards and took possession of their own cell block. In other words, the fact that the outbreak occurred in a cell block rather than in the mess hall or the yard can only be said to “point” to the commission's conclusion if one vital scrap of information is omitted and other vital details are ignored.

The second argument used by the commission in support of the spontaneity thesis is that the behavior of the prisoners after the riot started was inconsistent with advance planning. If, says the commission, the rioters had been acting on the basis of a plan, they would not have hesitated after capturing their cell block, but would have swept immediately on to capture the rest of the institution. Yet elsewhere in the report we discover that the rebellious inmates spent the time between their capture of the cell block and their invasion of other parts of the prison not in hesitation but in breaking the legs off chairs for weapons and gathering up the knives which they had cached in their cells. Further, says the report, if the riot had been planned, the rioters would not have eaten so much candy and other food when they captured and sacked the commissary; they would have stockpiled it against the unknown possibilities of future common hunger. Yet yielding to the temptation of spoils is a common problem even of well-disciplined armies; it hardly seems inconsistent, standing by itself, with “planning.”

So much for the commission's inductive reasoning. For the rest, the commission declares that it found “no evidence that the uprising at Attica was planned, either by avowed revolutionaries or anyone else.” But what evidence did the commission expect to find? A written order of battle? Letters or messages? If it expected to find such evidence when it started its investigation, weeks after the events, what steps did it take to unearth it? We are never told, and only a very careful reader of the report will discover, in a passage separated by a full hundred pages from the section on evidence, that the commission never explored the only promising source—namely the testimony of those who might have done the planning, if planning there was. That is, neither the commission's paid staff nor its voluntary aides ever interviewed the sixty inmates whom the authorities regarded as the probable riot leaders. These men simply refused to cooperate with the commission.

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What, in any event, does the commission mean by “planning”? If it means nothing less than a detailed set of orders, in which a command staff assigned specific inmates to specific tasks and a specific timetable was adopted, with proof to be found in the fidelity with which the forces executed their assignments, the commission has provided itself with a definition which would scarcely even be satisfied by the battlefield acts of two well trained companies of soldiers. If, however, planning means that a relatively small number of men imagined and urged on their fellow inmates the possibility of a riot in which hostages would be captured, demands made, neutral observers summoned, the media attracted, and political points scored, then there is even less warrant for the commission's assertion that all the evidence points in the direction of a spontaneous outburst. Indeed, the contrary is closer to the case.

The commission itself tells us that Attica in the summer of 1971 contained a number of former inmates of Auburn prison who had led a demonstration there in the course of which all correctional officers in the yard were taken captive, relieved of their keys and other property, threatened, and ultimately protected only by a group of Black Muslims. Once in Attica, having been released from segregation by federal court order, the Auburn transferees, in the words of the McKay report, “immediately began to impress upon Attica inmates the unfairness and duplicity of the system which was supposed to be correcting and rehabilitating them.” In addition to the Attica transferees, there was the already mentioned Attica Liberation Faction. The cells of those inmates, when searched, yielded what the correctional officers of Attica thought to be proof that they had been communicating with inmates at Clinton prison for the purpose of planning joint protest movements. The McKay report further states that because the construction of Attica made this prison seem physically more secure than others, the director of the Ossining (Sing Sing) classification unit had transferred what the commission, this time in quotation marks, describes as “his most difficult” cases there. Finally, there was at least one prisoner who had been transferred from the Tombs (as the county jail for the Borough of Manhattan is popularly labeled) after being indicted on numerous counts for the crime of inciting a riot there.

The presence of an extraordinary number of inmates who had demonstrated their readiness not only to protest against prison conditions, but to defy them, and to take hostages in the course of their defiance, would seem to “point in the direction” of the possibility that they were planning a similar protest at Attica. Obviously, this does not prove that these inmates did in fact foment the riot in which they and hundreds of others took part. Such proof could only be established, if at all, in a court of law. But there is certainly no justification for the commission's insistence that the evidence all points in the other direction.

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Nor does the idea that the riot was caused by objective conditions bear critical scrutiny. A careful study of the deficiencies at Attica, as set forth in the McKay report, fails to establish that there was anything in Attica that was worse or harder to bear than at any other penal institution, and a great deal that was better and easier to bear. Approximately 70 per cent of the Attica inmates had, in fact, previously served sentences in this or other institutions and thus had ample experience on which to base a comparison. The traditional causes of prison revolts, traditional in both fictional and factual literature, were notably absent from Attica: the prison was not old and dingy, but rather modern, well designed, and though full, not overcrowded; it was not a horror house, like the Tombs in New York, or the New Jersey prison at Trenton; there was no discernible physical brutality by the guards; the food was not maggoty or spoiled; the prisoners were not held to long, arduous, degrading labor (as a matter of fact, no one who did not want to work had to work at all); the prison was not run by a powerful and corrupt clique of inmates, or if it was, the commission did not discern this; its administration was not itself corrupt; there was no apparent statistical difference between the sentences being served by blacks, whites, and Latins; nor did the sentences seem unusually long by American standards. More than 50 per cent of the prisoners, including those serving life sentences for murder, were serving terms with maximum lengths of seven years or less. As a matter of law, each inmate must be released under parole supervision when he has served two-thirds of the maximum sentence, unless he has been guilty of egregious prison misbehavior. In addition, the discretionary parole system releases many more at earlier points. All in all, though the commission states that there has been no significant change in the New York penal system since the 19th century, the truth is that 60 per cent of convicted offenders are currently serving their sentences at home, under parole supervision. In the 19th century, every convict served his time in prison.

The main body of the complaints collected by the commission against Attica were complaints against what might be called the institutionalization of prison life, not its brutality. These were complaints against the visiting system, the low cash wages paid in the prison industries, the amount of pork in the prison diet (Black Muslims are forbidden to eat pork), the censorship of mail, the medical services, the insufficient recreation time and equipment. Yet even on matters involving the institutionalization of prison life, a number of changes had been made in the months before the riot. Visitation privileges were greatly broadened; due process was afforded to men returned to prison for alleged parole violation; mail and book censorship were lifted almost entirely; limits were placed on the segregation of those accused of breaking prison rules and due process of a sort was provided to replace the discretion of the Deputy Superintendant in the imposition of punishment.

Thus, just as the commission fails to show convincingly that the riot was unplanned, it also fails to persuade us that the riot was caused by objective conditions or that the authorities were so insensitive to the grievances of the inmates that only violence could make them attend. In spite of the refusal of the rioters ultimately to accept specific promises of reform, and despite their determination to hold out for complete amnesty for criminal acts, a determination perhaps reflecting the fact that three inmates had been stabbed to death before the recapture of the prison, the commission continues to believe that the riot was aimed at prison reform. In the eyes of the commission, the Attica riot was visited on white America, and will be visited again and again as a punishment for racism and for a prison system that aims only at confinement and security, and not at rehabilitation.

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IV

In calling for rehabilitation, the McKay commission echoes what every student of penology, serious and frivolous, has been saying for many years. But is systematic rehabilitation possible? According to the commission, the proof that it is can be found at Attica itself—in a special cell block, “E,” where the Division of Vocational Rehabilitation (DVR) is located. The “cells” in cell block “E” are in effect rooms; their doors are solid rather than barred, they are larger than the cells in the other blocks, and they have windows facing the yards. DVR inmates also have access to a large dayroom with ping-pong tables and other recreational facilities, and to a kitchen.

Run by the State Department of Education and the Department of Correctional Services, and financed by a federal grant, DVR was originally intended for prisoners with physical disabilities. Later the entrance requirements were stiffened to include only those who had demonstrated a strong will to undertake the program, and to exclude all aggressive homosexuals and all those with “excessive hostility to the institution or society.”

The DVR program consists of a school specializing in remedial education, a workshop for vocational training, and counseling and other forms of psychotherapy such as voluntary group-encounter sessions. There is a “token” system in which special privileges can be earned by acts of good behavior, and there is also post-release counseling and assistance.

Does DVR prove that rehabilitation works? The commission's report gives no statistics as to the post-release recidivism of men who have passed through the DVR system at Attica. Yet even if one were to assume that all DVR graduates are successfully rehabilitated, it would prove only that prisoners who have a powerful desire to lead lawful lives—the only kind who are allowed into the DVR program—can be helped to do so. But what of the “new breed” of black prisoner of whom the commissioner makes so much—the prisoner who rejects American society because of its racism, and who considers himself a political victim and no criminal at all? This “new breed” of prisoner is excluded from DVR on the ground of his “excessive hostility to the institution or society;” yet how could DVR do anything with him if he were admitted?

Rehabilitation of offenders remains a mysterious process even when the offender wills himself to be changed. When he wills precisely the opposite, changing him is no longer a question of rehabilitation, but of persuading him to alter his basic ideas about himself, about society, about politics. Other blacks would seem essential in this task where the “new breed” is concerned. There are signs—notably in the willingness of an increasing number of blacks to speak out against black criminal offenders—that some black leaders may be willing to assume such a responsibility, in spite of the risks of personal censure and communal friction. But if representatives of the state like the members of the McKay commission—who are in theory neither black nor white—are unwilling at much less risk to say plainly that the political ideas of the “new breed” are a fraud and a crude rationalization of acts committed for reasons that have no shred of political motivation, why should blacks be expected to carry the burden alone?

On this issue the McKay report is anything but plain. Indeed, it is shot through with moral uncertainty as to whether justice is on the side of the inmates or their guardians. In a crucial passage, the commission says that it “condemns the taking of hostages as a means for bringing about changes in society, even where peaceful efforts at reform have failed. Whether carried out in a commercial airline, or in a prison, the holding of human lives for ransom is wrong and only leads to more violence and to a backlash that makes change more difficult.” After wading through the tepid language, and considering the not-quite established assumption about the failure of “peaceful efforts at reform” at Attica, the reader must expostulate that if kidnapping and holding victims for ransom are wrong, then they are wrong even if they make change easier, even if they make improvement likely. A commission which believes that kidnapping (and stripping and beating officers, one so seriously that he subsequently died) is primarily an unwise tactic in the pursuit of the worthy goal of prison reform—such a commission lacks sufficient belief in the importance of law to persuade offenders to accept it. It has itself, rather, been “rehabilitated” by the rioters to accept as preferable to its own the system of values which they allege to be theirs and which they insist is superior. For what the commission suggests is that force used by the inmates is understandable though ill-advised, while force used by the authorities is simply wrong. Thus on the cover of the report, the commission places a photograph showing the helpless prisoners, black and white, lined up naked on their way back to the cells after the riot while a state trooper, in yellow slicker, stands over them, baton in hand, like a slaver loading his prizes onto a ship. The commission does not explain that the inmates were naked not only because they had been searched for weapons (over 1,000 were recovered, according to the authorities) but also because their clothes had been impregnated with irritant gases, and were muddy and torn; the photograph is left to speak for itself as a symbol of the entire episode. Whatever else it may say, it does not speak of an even-handed appraisal by the commission of the intricate balance of rights involved in a system of criminal justice. This must include not only the right of prisoners to retain those human rights not specifically taken from them by the courts, but also their right to be protected from each other. The public at large has the right to freedom from the dangers to its peace presented by convicted offenders. Finally, not least, prison officials have the right to go about their lawful work in safety.

A program of rehabilitation must be fitted into the criminal justice system without flagrantly upsetting this balance. Even without the special problems posed by the “new breed” and by the response to it of people like the members of the McKay commission, rehabilitation is a highly uncertain process. The best current evidence fails to establish any procedure that works. No matter how humane the institution, nor even whether the offender is institutionalized at all; no matter whether the convicted lawbreaker is put on probation, under special supervision, or set to work with special guidance counselors, the results hardly seem to vary at all: much the same—and rather large—percentage of convicted offenders will proceed to commit new offenses.

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That the rehabilitation of convicted offenders remains a mystery does not provide the state with an excuse for not attempting it continuously, on a larger scale than ever before, and more generously. But it seems foolish to suppose that the public should sacrifice all other considerations—such as the security of the prison itself—to rehabilitation, especially in the absence of proof that a particular program works. The success of rehabilitation must depend, not only on the way in which the prison is administered, and on the equities in the larger world outside, but also on the availability of rationalizations which encourage the offender to ignore the inhibitions which might otherwise hinder his commission of new offenses. In its general support of these rationalizations, the McKay commission has good company, the New York Times included.

The Times made its position clear last summer in commenting on another case involving another prison riot, this one in the Tombs. In the course of the trial of three defendants accused of having started the riot and of kidnapping prison guards, Judge Harold Birns said that although “conditions in penal institutions require reform and that many grievances of prisoners are well founded . . . the power to change appalling conditions found in prisons rests with the legislators.” Accordingly, the judge ruled that the doctrine of “justification,” offered by the defendants for the crime of kidnapping their guards, could not be sustained. And in his final charge, Judge Birns told the jury that even prison officers were protected by law and enjoyed the right to go peacefully about their business. The Times pounced on these words, and commented editorially that in seeking to sever the defendants' alleged acts from the conditions in the Tombs, the judge was echoing Alice in Wonderland.

To the extent that the notion of justification prevails, together with its twin, the notion that crimes committed by black men in the United States are political, no matter who their victims (and, of course, they are more often black than white) or whether they involve acts recognized as criminal everywhere in the world, rehabilitation becomes even more difficult than before. It is hard to see how the tenor of the McKay commission's report will do other than make more plausible the rationalizations that impede rehabilitation; more difficult the administration of criminal justice; more resistant to prison reform the great majority of Americans who are fearful of jeopardizing their own safety for the uncertain benefit of inmates; and more shaky the plight of the victims in the cities of the nation.

¹ Attica: The Official Report of the New York State Special Commission, 576 pp., $2.25.

² The report consistently uses this term without quotation marks, as though the cells in question were windowless enclosures. In fact they differ from ordinary cells only in having their furnishings bolted to the wall and floor and in being segregated from the prison as a whole, though not from each other; nor are prisoners in the “box” denied visitors or mail.