Posts Tagged ‘history of crime and punishment’

“In 2014, amid mounting criticism and legal pressure, the Federal Bureau of Prisons imposed a new policy promising better care and oversight for inmates with mental-health issues. But data obtained by The Marshall Project through a Freedom of Information Act request shows that instead of expanding treatment, the bureau has lowered the number of inmates designated for higher care levels by more than 35 percent. Increasingly, prison staff are determining that prisoners—some with long histories of psychiatric problems—don’t require any routine care at all.

As of February, the Bureau of Prisons classified just 3 percent of inmates as having a mental illness serious enough to require regular treatment. By comparison, more than 30 percent of those incarcerated in California state prisons receive care for a “serious mental disorder.” In New York, 21 percent of inmates are on the mental-health caseload. Texas prisons provide treatment for roughly 20 percent.

A review of court documents and inmates’ medical records, along with interviews of former prison psychologists, revealed that although the Bureau of Prisons changed its rules, officials did not add the resources needed to implement them, creating an incentive for employees to downgrade inmates to lower care levels.

In an email, the bureau confirmed that mental-health staffing has not increased since the policy took effect. The bureau responded to questions from a public information office email account and declined to identify any spokesperson for this article.

“You doubled the workload and kept the resources the same. You don’t have to be Einstein to see how that’s going to work,” said a former Bureau of Prisons psychologist who spoke on the condition of anonymity because of a pending lawsuit regarding his time at the agency.

The bureau said it is “developing a strategy” to analyze this drop in mental-health care, consistent with a Justice Department inspector general’s recommendation last year. Although only a small fraction of federal inmates are deemed ill enough to merit regular therapy, officials acknowledged that 23 percent have been diagnosed with some mental illness.

Data shows the reduction in care varies widely depending on location. At the high-security penitentiary near Hazelton, for instance, which is near the medium-security facility where Rudd was housed, the number of inmates receiving regular mental-health care has dropped by 80 percent since May 2014. At the federal prison near Beckley, West Virginia, the number fell 86 percent.

Although hiring and retaining mental-health staff is a challenge for all prisons, it can be especially difficult for remote facilities. A recent study published in the American Journal of Preventive Medicine found that about half of rural communities in the United States don’t have access to a psychologist, and 65 percent don’t have a psychiatrist.

“Most people who have gone through the time and expense to become a psychologist … do not want to live in a really rural area,” said Doug Lemon, a former chief psychologist at two federal prisons in Kentucky. “You can say, ‘Doug Lemon’s lab [should have] five psychologists,’ but if he can only hire three because he can’t get anyone else to work there, guess what? He’s stuck meeting the same mission with three instead of five.”

Staffing shortages elsewhere in the federal prison system have forced the bureau to require some counselors to serve as corrections officers, a situation that worsened under the Trump administration after a lengthy hiring freeze designed to cut spending. In 2016, the bureau had instructed wardens to stop using psychologists for tasks not related to mental health, except in emergencies. But media reports illustrate how counselors and case managers are still being asked to do odd jobs.

“The catchphrase in the bureau was ‘Do more with less,’ ” said Russ Wood, a psychologist in federal prisons for 24 years. “The psychologists were getting pulled off to work gun towers and do prisoner escorts. We’re not really devoted to treating.”

A bureau spokesperson said that all staff are “professional law enforcement officers first” and that the agency does not consider mental-health care to be the primary role of counselors or social workers.”

– Christie Thompson & Taylor Elizabeth Eldridge, “Treatment Denied: The Mental Health Crisis in Federal Prisons.” The Marshall Project. November 21, 2018.

Art by Owen Gent.

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“In 1963 Carl Heller was an internationally renowned medical scientist, a winner of the important Ciba Prize. In the field of endocrinology, he was a preeminent researcher, so it is not surprising that when the AEC decided to fund work on how radiation affects male reproductive function, they would turn to him. He designed a study to test the effects of radiation on the somatic and germinal cells of the testes, the doses of radiation that would produce changes or induce damage in spermatogenic cells, the amount of time it would take for cell production to recover, and the effects of radiation on hormone excretion.

To accomplish this he had a machine designed and built that would give a carefully calibrated, uniform dose of radiation from two sides. The subject lay face down with his scrotum in a small plastic box filled with warm water to encourage the testes to descend. On either side of the box were a matched set of x-ray tubes. The alignment of the x-ray beams could be checked through a system of peepholes and mirrors. Subjects were required to agree to be vasectomized because of a perceived small risk of chromosomal damage that could lead to their fathering genetically damaged children. To carry out this work Dr. Heller was to receive grants totaling $1.12 million over ten years.

Mavis Rowley, Dr. Heller’s former laboratory assistant, who was interviewed by Advisory Committee staff in 1994, said that the AEC “was looking for a mechanism to measure the effect of ionizing radiation on the human body… .” She said testicular irradiation was promising because the testes have “a cell cycle and physiology which allows you to make objective measurements of dosimetry and effect without having to expose the whole body to radiation.”

Although official documentation is fragmentary, it is clear from other evidence such as interviews and contemporary newspaper articles that the concerns cited above–worker exposures, potential exposures of the general population as a result of accidents or bomb blasts, and exposures of astronauts in space–were of interest to the AEC.

In the case of the astronauts, the National Aeronautics and Space Administration has been able to find no evidence of direct involvement in Dr. Heller’s project. Yet Ms. Rowley remembers with clarity that NASA representatives, even astronauts themselves, attended meetings with their research team. In her 1994 interview, she said, “NASA was also very interested in this… . There was a section of activity which was devoted to what effect would the sun flares and so forth, which give out significant radiation have on the astronauts. And so there were meetings that went on which actually included some of the astronauts attending them… .” Rowley explained that the astronauts were concerned that reduced testosterone production might make them lose muscle function, which could compromise their mission, but, belying the comment of the colonel in the 1949 nuclear-powered airplane meeting who said that crewmen were concerned about anything physically harmful, she said they seemed altogether unconcerned “about their own health." During his 1976 deposition, Dr. Heller remarked: "What we would like to supply the medical community with is what happens when you give continual very small doses such as might be given to an astronaut." Moreover, in 1965, Dr. Heller served as a consultant to a Space Radiation Panel of the National Academy of Sciences-National Research Council. And finally, Harold Bibeau, an Oregon subject, recalls that Dr. Heller told him when he signed up for the program that NASA was interested in the results.

At the time the Oregon experiment got under way, using prisoners as research subjects was an accepted practice in the United States. And in this particular study Oregon law was interpreted by state officials as permitting an inmate to give his consent to a vasectomy, which they appear to have seen as analogous to consenting to becoming an experimental subject. However, important ethical concerns of today such as balancing risks and benefits, the quality of informed consent, and subject-selection criteria appear, on the whole, not to have been carefully addressed or not addressed at all by the investigators or those responsible for oversight.

With respect to the health risks associated with the testicular irradiations, there was very little reliable "human” information at the time about the long-term effects of organ-specific testicular exposure to radiation. Hiroshima and Nagasaki bomb data, however, which of course were not organ specific, suggested that the likelihood of inducing cancers with the amount of radiation Dr. Heller planned to use was small. By way of comparison, today’s standard radiotherapy of the pelvis, for prostate cancer for example, often results in doses to the testicles in the ranges encountered in these experiments.

So what did Dr. Heller tell subjects about the chronic risk? The answer appears to have been nothing in the early years and, later on, perhaps a vague reference to the possibility of “tumors” but not cancer. In a deposition taken in 1976 a subject named John Henry Atkinson said he was never told there was a possibility of getting cancer or any kind of tumors as a result of the testicular irradiation experiments. Other subjects deposed in 1976 also said they had not been warned of cancer risk, and when asked by one subject about the potential for “bad effects,” Dr. Heller was reported to have said, “one chance in a million.” When asked in his own deposition what the potential risks were, Dr. Heller said, “The possibility of tumors of the testes.” In response to the question “Are you talking about cancer?” Dr. Heller responded, “I didn’t want to frighten them so I said tumor; I may have on occasion said cancer.”

The acute risks of the exposures included skin burns, pain from the biopsies, orchitis (testicular inflammation) induced by repeated biopsies, and bleeding into the scrotum from the biopsies. Using consent forms and depositions as a basis for determining what the subjects were told, it appears that they were adequately informed about the possibility of skin burns; sometimes informed, but perhaps inadequately, about the possibility of pain; informed about the possibility of bleeding only from 1970 on; and never informed of the possibility of orchitis. As far as the quality of consent is concerned, the evidence suggests that many if not most of the subjects might not have appreciated that some small risk of testicular cancer was involved. It is also not clear that all subjects understood that there could be significant pain associated with the biopsies and possible long-term effects.

In selecting subjects, Dr. Heller appears to have relied on the prison grapevine to get out the word about a project he apparently believed the Atomic Energy Commission did not want publicized. In a 1964 memorandum he was paraphrased as saying “at Oregon State Penitentiary, the existence of the project is practically unknown.” In a 1966 letter to the National Institutes of Health describing the review process at the Pacific Northwest Research Foundation, a respected, free-standing research center, Dr. Heller and two colleagues wrote that “the inmates are well informed by fellow inmates regarding the general procedures concerned (i.e., collecting seminal samples, collecting urines for hormone studies, submitting to testicular biopsies, receiving medication orally or by injection, and having vasectomies … )." If the volunteers were healthy and normal they were accepted for a trial period during which they donated semen samples. If all went well, in a matter of weeks they were accepted into the radiation program, as long as the prison’s Roman Catholic chaplain certified that they were not Roman Catholics–because of the church’s objection to their providing masturbated semen samples–and they could pass what appears to have been a cursory psychological screening designed to ensure they had no underlying objections to the required vasectomy. A copy of a form titled "Psychiatric Examination” provided by Harold Bibeau and signed with the initials of the examining psychiatrist, WHC for William Harold Cloyd, says in full:

11-4-64 Seen for Dr. Heller —- Never married, quite vague about future. Feels he doesn’t want children —- shouldn’t have any. I agree. No contraindication to sterilization.

As far as potential health benefits to the subjects are concerned, there were none, and the inmates who volunteered for the research were told so. The benefits were in the form of financial incentives. A review of applications for Dr. Heller’s program, and depositions of prisoners who sued Dr. Heller, various other individuals, and the state and federal governments for violation of their rights, clearly indicates that money was in most cases the most important consideration in deciding to volunteer. In prison industry inmates were typically paid 25 cents a day. For participating in the Heller program they received $25 for each testicular biopsy, of which most inmates had five or more, plus a bonus when they were vasectomized at the end of the program, which appears to have been an additional $25. Some inmates indicated that they were grateful for an opportunity to perform a service to society. An obvious ethical question is whether the money constituted a coercive offer to prisoners.

During the course of his study between 1963 and 1973, Dr. Heller irradiated sixty-seven inmates of the Oregon State Prison. Nominally, three institutions had some oversight responsibility for Dr. Heller’s work–the Oregon Department of Corrections, the Atomic Energy Commission, and the Pacific Northwest Research Foundation, where Dr. Heller was employed. Practically speaking, however, it appears that Dr. Heller conducted his research independently. As an example of his independence, as recounted by Ms. Rowley, the AEC requested that Dr. Heller begin irradiating subjects at 600 rad and work upward, but he refused and in the end set 600 rad as an upper limit. (It is not clear whether Dr. Heller was concerned about risk to the subjects’ health or other research criteria.) Dr. Heller also was a member of the committee at Pacific Northwest Research Foundation that had responsibility for overseeing his research, giving him a voice in the oversight process. This committee was authorized under a foundation regulation titled “Policy and Procedures of the Pacific Northwest Research Foundation With Regard to Investigations Involving Human Subjects.” In a section on ethical policy, the document says: “Since 1958 the investigators of this Foundation have conducted all research under the ethical provisions of the Nuremburg [sic] Code, modified to permit consent by parents or legal guardians.”[

In January 1973, in a rapidly changing research ethics environment, the Oregon irradiations were terminated when Amos Reed, administrator of the Corrections Division, ordered all medical experimentation programs shut down essentially because he concluded that prisoners could not consent freely to participate as subjects. It is not known exactly what was behind the timing of Reed’s decision, but according to Oregon Times Magazine, he had recently read Jessica Mitford’s article in the Atlantic Monthly titled “Experiments Behind Bars” and an article in The (Portland) Oregonian headlined “Medical Research Provides Source of Income for Prisoners.”

In 1976, a number of subjects filed lawsuits effectively alleging poorly supervised research and lack of informed consent. In their depositions they alleged among other things that prisoners had sometimes controlled the radiation dose to which they were exposed, that an inmate with a grudge against a subject filled a syringe with water instead of Novocain, resulting in a vasectomy performed without anesthetic, and that the experimental procedures resulted in considerable pain and discomfort for which they were not prepared. These suits were settled out of court in 1979. Nine plaintiffs shared $2,215 in damages.

For the last twenty years all efforts to put in place a medical follow-up program for the Oregon subjects have been unsuccessful. Dr. Heller and Ms. Rowley explicitly favored regular medical follow-up. During the period between 1976 and 1979, the pending lawsuits might have been the reason for the state’s reluctance to initiate a follow-up program, but it is less clear why during other periods such efforts have also failed. Two possible reasons suggested by state officials are the cost of such a program and the difficulty of finding released convicts. Other possible reasons are that a follow-up program would not provide a significant health benefit to former subjects and that it would not provide significant new scientific knowledge. According to Tom Toombs, administrator of the Corrections Division of the State of Oregon at the time of the lawsuits, the Corrections Division wrote to the AEC’s successor (the Energy Research and Development Administration) in early 1976 recommending medical follow-up for the subjects. Mr. Toombs said there was no record of a response to this request. In 1990, James Ruttenber, an epidemiologist at the Centers for Disease Control, designed a follow-up program for Oregon, but it has not been implemented. In an interview with Advisory Committee staff, Dr. Ruttenber said state officials told him that Oregon does not have sufficient funds to carry out his plan.”

– “Chapter 9.2: The Oregon and Washington Experiments,” Advisory Committee on Human Radiation Experiments, Final Report. US Department of Energy Office of Environment, Health, Safety and Security Search, 1994.

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How a band of youthful criminals launched forth on a career of
bloodshed, and for months waged a relentless war against society. Their
terrible doings caused a regular reign of terror in Chicago, but
finally, after a series of exciting episodes, the outlaws were run to

EARLY on the morning of August 30th, 1903, occurred
the sanguinary climax of as audacious and merciless a series of
outrages as ever blackened the records of the great city of Chicago.
Three boy outlaws, already steeped crime and murder, walked into the
car-barns of the Chicago City Railway Company at Sixty-first and State
Streets, and “held up” the office of the cashier for the night’s
earnings of the company. In so doing they murdered two men and wounded
two others, but for that they cared nothing, since they themselves
escaped temporarily without detection. The very boldness of the crime
committed in the heart of a city of two million population, and the
callous recklessness which produced such unnecessarily fatal results,
would of themselves have sufficed to strike horror into the citizens;
but when it is added to this that there had preceded it a series of
hold-ups extending over several months and involving several deaths, it
may be conceived that Chicago promptly woke up and demanded justice on
the perpetrators. The people wanted to know what the police were going
to do about it, and the police accordingly strained every nerve to find
the guilty bandits. They remembered that holdup after hold-up had
occurred in the past few months without anybody being punished. Nor did
the highwaymen leave any clue by which they might be traced. They
vanished into the night, and that was the last of them.

The story
of these hold-ups was always the same — some unsuspecting men at work or
taking their ease; the sudden appearance of three boyish desperadoes; a
shot or two to break the silence of the night; and another murder to be
added to the list of Chicago’s crimes. Within three months no fewer
than eight men had died to the sound of cracking revolvers in the hands
of these downy-faced youths, and at least half-a-dozen others carried
the scars of wounds. Otto Bauder, Adolph Johnson, and B. C. La Crosse
were murdered in different saloon hold-ups, and Peter Gorski was shot
down during an attack on his establishment. To vary the monotony, T. W.
Lathrop, agent for the Chicago and North-Western Railway, was wounded
during an attack on Clybourn Junction, the station at which he was
agent. In nearly every case the shooting’ was wanton, as it was quite
unnecessary to proceed so far to secure the booty. One curious feature
of the case is the very small amount obtained by the robbers. The death
of one saloon-keeper netted them only two dollars thirty-five cents. At
the next hold-up they did somewhat better, since they bagged two men and
got fourteen dollars from each of them. At this rate they could make
more money by honest labour, and they decided to go after something big.
The car-barn robbery followed.

It was in the small hours of the
night of August 30th that the dramatic finale to this series of outrages
was enacted. The employes in the cashier’s office of the railway
company were busy balancing the receipts of the night. The last
conductor had just turned over his money and left the barn. Suddenly
sinister shadows fell on the floor, and Frank Stewart, the assistant
clerk in the office, looked up in surprise. An instant later a revolver
cracked and Stewart fell, fatally wounded. Almost instantly Henry Biehl,
another clerk, dropped from his stool wounded in the head, and William
B. Edmond was struck in the thigh. In an inner room lay Motorman J. E.
Johnson, asleep. He was awakened by the sound of firing just in time to
meet his death. Then the bandits broke open the cashier’s desk with a
sledge-hammer and took from it two thousand two hundred and fifty
dollars in silver and bills. Thirty minutes later the youthful outlaws
were sitting in the under-brush of Jackson Park waiting for the day to
bring light enough to divide the plunder. Then they calmly boarded a
street-car and rode over to the West Side, reading in the early morning
newspapers the account of their exploit. For weeks not a car left the
barns that did not bear in big letters a notice offering a reward of
five thousand dollars for the capture of the murderers.

For a long
time the police found not the slightest clue to the identity of the
criminals. In the office exploded cartridges proved that automatic
revolvers had been used. The same kind of shells had been found at the
scene of several of the other hold-ups, and since this weapon was new to
the highwayman industry the police naturally concluded that the same
persons were responsible for all the crimes. Then out of the clear sky
came the thunder-bolt of discovery. A young man named Gustave Marx, who
had been drinking heavily of late, showed an automatic revolver and
boasted that the police could not take him alive. Chief of Police O’Neil
detailed Detectives Quinn and Blaul to arrest Marx. At a saloon which
he frequented they found this young man. He was quiet, self-contained,
and quite master of himself. Apparently he had nothing to conceal from
the world, but when the detectives stated their mission his true nature
flared out. There was a sudden gleam of steel, a flash, a report, and
Detective Quinn pitched forward in his tracks, dead. Blaul was saved
only by a hitch in the working of the weapon. Before Marx could right
the defect in the mechanism Blaul was grappling with him for dear life.
Assistance came to the detective, and he succeeded in securing his man.
In Marx the police felt confident they had secured one of the murderous
gang of bandits who had terrorized Chicago for many months.

It had
been understood among the band that if any member of the gang were
caught the rest were to dynamite the prison to secure his escape. Marx
waited for a few days, expecting his comrades to attempt to rescue him.
It appears that such a rescue was intended. According to Peter
Niedemier, the chief of the gang, the attempt was planned. When the
fewest men were known to be about the station the outlaws were to walk
in at the front door, kill the man at the desk and any other officers
who happened to be in the way, and then take the keys from the
gaol-keeper or blow off the lock with dynamite. But Marx did not know
about this. He grew moody and bitter because he alone had been captured,
and concluded that his accomplices had deserted him. Perhaps in pique,
perhaps in fear, he blurted out the full story of the car-barn robbery
and murder.

Meanwhile his comrades, Peter Niedemier, Harvey Van
Dine, and Emil Roeski, of whom the former was leader of the gang and the
latter a weak youth whom they had lately got to join them, had been
haunting the home of Detective Blaul, whom they had decided to kill in
revenge for the capture of their comrade. Fortunately for himself,
however, the officer happened to be out of town. The outlaws devised
several futile plans to rescue Marx, but, learning suddenly that he had
made a concession to the police, sought safety in flight. It shows the
desperate nature of these young ruffians, not one of whom was over
twenty-three, that they waited in Chicago for weeks, though they knew
that the entire police force was hunting high and low for them. Word
came to the authorities at last that Van Dine and Niedemier had been
seen at a grocery store at Clark, Indiana, where they had gone to buy
provisions. Immediately the officers were rushed to the scene, seven
policemen arriving at Clark from Chicago on a Friday morning. They were
met by H. F. Reichers, who had reported the clue, and who had tracked
the trio secretly to the “dug-out ” where they were hiding.

position of the besieged was an excellent one for defence. The country
was very rough, sandy, and broken, and dotted at intervals with
gravel-pits. Furthermore, the hut was on a hill-top, so that it
commanded the approach from the railroad embankment below. It was up
this incline that the police had to charge. The officers advanced in a
circle, guided by Reichers, and were allowed to get so near that they
thought the robbers had escaped. Driscoll, one of the detectives, picked
up a stick and flung it playfully at the hut. There came a flash, a
sharp report, and Driscoll fell forward. At the same instant Roeski
appeared at the door, and was ordered to surrender. He darted back into
the cave, and promptly the magazine guns of the bandits began to volley
at the officers. Concealing themselves behind trees and bushes as best
they could, the police returned the fire. Suddenly, through the smoke,
two men ran crouching; from the “dug-out.” One of them, Emil Roeski,
sped away in flight, but Harvey Van Dine, the second outlaw, was made of
different stuff. He had been a soldier in Cuba and seen service in the
Philippines. He retreated slowly, step by step, keeping up a withering
fire meanwhile.

A minute later Niedemier emerged from the hut and
fatally wounded Driscoll. The two young desperadoes were not in the
least excited by the firing, but backed away toward the tracks of the
Michigan Central Railway, the revolvers in each of their hands speaking
steadily. Detective Zimmer exposed himself slightly, and Van Dine shot
him through the arm. Before he fell to the ground another bullet from
Van Dine’s revolver had entered his head. With one dying man on their
hands and one very seriously wounded, the police were in no condition to
give immediate pursuit to the robbers. Van Dine and Niedemier had flung
themselves flat on the railroad track and were keeping up a steady
revolver fire, but presently they retreated with the honours of the day.
Roeski, unnerved and wounded, could hardly drag himself after his
leaders. He was oppressed by the fear that they would murder him in
order to get rid of him, and he took the first chance to slip away into a
cornfield by himself. From here he retreated toward Tolleston, Indiana,
to which point he was traced by five citizens. They found him in the
Wabash Station at Etna, lying unarmed and asleep, and without any
trouble captured him and sent him to Chicago.

Directly the result
of the skirmish became known fifty policemen, armed with rifles, were
rushed to the front on a special train, and the man-hunt was renewed.
Van Dine and Niedemier had cut across country for a mile till they
reached the tracks of the Pennsylvania Railway. Here on the side-track
lay a switch-engine, with a train of cars attached to it.

fugitives, driven to extremity, decided to seize the train and escape.
They sprang boldly into the cab of the engine, where they found Fireman
Frank Coffey, the engineer being absent at the time. Brakeman Sovea
crawled over the tender in an attempt to warn Coffey before the outlaws
should reach him. He arrived just in time to confront Niedemier’s
revolver. The outlaw leader commanded him to throw the switch. The
daring brakeman refused to do so and grappled with him instead, trying
to wrest the pistol from his hand.

“The man doesn’t live who can take a gun from me,” said Niedemier, coolly, and killed Sovea instantly.

unfortunate man pitched head-first out of the cab with a bullet in his
brain, while the terrified Coffey uncoupled the engine from the train
and flung open the lever on a wild run for Liverpool. A few hundred
yards away in the woods were a number of armed farmers who had heard of
the escape and were out to cut off the fugitives. They reached Tolleston
about noon, just as the engine dashed past them. Some of them ran
across the plain to a curve of the road, which swings round at this
point, and reached a locked switch, just closed by telegraphic order to
stop the stolen engine. Here Fireman Coffey stopped the engine of
necessity, but the bandits, with ready resource, forced him to run it
back for a mile along the track which they had just traversed. There the
fugitives leaped to the ground and took to a swamp. But they could not
escape from their pursuers. Hundreds of men were now out after them, and
they were trapped like wild beasts. Even as they fled a band of
rabbit-hunters caught sight of them crossing a fence into a cornfield.
The sportsmen turned loose a volley of bird-shot upon the weary
refugees. It caught Niedemier full in the face, while Van Dine also
received his share in the hands, face, and throat. The country was
rough, and the outlaws were weary to the point of exhaustion. It was
easy for the officers and farmers to track them through the new-fallen

“The game’s up,” said the leader, and Van Dine nodded a
surly assent; but for some time they continued to exchange a rapid fire
with the enemy.

“There’s no use killing any more of those fellows. Let’s give up,” said Niedemier.

two emerged from the cornfield and surrendered. Chained wrist to wrist,
their hair matted with dried blood, their eyes haggard and their faces
pallid, these two beardless outlaws were put aboard a train for Chicago.
That night they sat before Mayor Harrison and Chief of Police O’Neil,
calmly confessing their share in the four months’ war which they had
just finished waging against society. Marx and Niedemier, posing as
desperadoes of the worst kind, even confessed to murders which they did
not commit. Yet it is probable that Niedemier, as a boy of fifteen, shot
a detective in Ontario for ordering him from the top of a freight

These curious criminal types offer a strange study. They
appear to have come by their lawlessness legitimately, so to speak, for
the father of Van Dine is a fugitive in Mexico and Marx’s father is in
prison. Entirely without moral instincts, these degenerates spoke of killing men as callously as other youths of their age speak of shooting rabbits.
Van Dine was an excellent engineer, while Marx was a painter by trade.
But the fascination of criminal life allured them. As Van Dine phrased
it, “I wanted something exciting; something with ‘ginger’ in it. That’s
all there is to it.” Their nerve stayed with them till the last. They
were tried, and the three leaders were condemned to be hanged, their
tool, Roeski, receiving a life sentence. A few days before the date set
for the execution Peter Niedemier made two deliberate attempts to commit
suicide. For weeks he had been borrowing and saving matches. He
swallowed the phosphorus of which the heads were made, and then
proceeded to sever an artery in his left wrist. He had boasted that he
would never die on the gallows, and he did his best to keep his word.
But in this he did not succeed. Too weak to walk, he was carried to the
scaffold in a chair. Gustave Marx, Harvey Van Dine, and Peter Niedemier
were executed on Friday, April 22nd, 1904. They left an appalling record
of bloodshed behind them. At their merciless hands Otto Bauder, Adolph
Johnson, Benjamin C. La Crosse, J. E. Johnson, Frank Stewart, John
Quinn, J. D. Driscoll, and John Sovea suffered death, and many others
were badly wounded. Including themselves eleven lives have been
sacrificed to pay the penalty of their wild attempt to disregard the
laws of society.

– M. W. Raime, “The Boy Bandits of Chicago.” The Wide World Magazine, October 1904.  pp. 79-83.

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“En 1958, la liberté surveillée est légalement reconnue en sa qualité de «véritable mesure d’éducation en milieu ouvert», conformément à l’esprit de réforme présidant à son évolution depuis 1945. En effet, la modification de l’article 25 de l’ordonnance du 2 février 1945 «tient compte de l’institution, postérieure à la promulgation de l’ordonnance de 1945, d’un statut des délégués permanents à la Liberté Surveillée qui sont désormais des fonctionnaires appartenant aux cadres d’éducation des services extérieurs de l’Éducation surveillée». L’article 25 est ainsi rédigé : «la rééducation des mineurs en liberté surveillée est assurée, sous l’autorité du juge des enfants, par des délégués permanents… ». L’introduction du terme de «rééducation» consacre une autonomie à une mesure éducative que ne lui conféraient pas les textes d’origine quand elle n’était qu’une mesure de surveillance. La loi intègre dix ans de réformes de la liberté surveillée, tant d’un point de vue statutaire (le délégué passe de la condition d’indemnitaire à celle de contractuel, puis à celle d’éducateur), que d’un point de vue pédagogique: «la liberté surveillée qui de mesure de surveillance et de contrôle, est devenue une véritable mesure d’éducation en milieu ouvert». De par son évolution, elle peut même prétendre être un modèle pour la toute nouvelle mesure de protection des enfants en danger (l’assistance éducative), comme l’atteste ce document présenté par la direction de l’Éducation surveillée au Conseil de l’Europe de Strasbourg en 1959. 

«La législation française prévoit pour les mineurs délinquants, comme pour les mineurs non délinquants justiciables d’une éducation spécialisée et d’une protection particulière, des mesures analogues. La gamme prévue par l’ordonnance du 23 décembre 1958 est nécessairement plus large que celle de l’ordonnance du 2 février 1945, et les possibilités d’action en milieu ouvert y sont plus grandes. La liberté surveillée, mesure d’origine pénale devenue dans la pratique procédé d’éducation spécialisée en milieu libre, reste l’instrument principal de l’ordonnance du 2 février 1945, mais ses moyens et ses modalités pourront être utilisés dans l’application de la loi nouvelle concernant l’enfance en danger.»

La mesure de liberté surveillée, à l’instar du statut des mineurs délinquants après la seconde guerre mondiale a été le support pédagogique et juridique de la dynamique de la protection judiciaire de l’enfance, mais elle est restée sur le bord du chemin (sans renforcement des services de la liberté surveillée ni du nombre de permanents) à cause des dispositions de l’autre ordonnance du 23 décembre 1958, celle relative à la protection de l’enfance en danger où le juge des enfants peut, lorsque le mineur est laissé à ses parents ou lorsqu’il est l’objet de mesures provisoires « charger un service d’observation, d’éducation ou de rééducation en milieu ouvert de suivre le mineur et sa famille » (Art. 376-1), ou le faire au titre d’une mesure définitive (Art. 379). Non seulement les procédures entre l’ordonnance du 2 février 1945 et celles de l’ordonnance du 23 décembre 1958 sont similaires, mais le même jour deux ordonnances (ordonnances n° 58-300 et n° 58-301), l’une au pénal, l’autre au civil, permettent au juge des enfants dont les compétences sont élargies et dont les activités sont appelées à considérablement s’accroître, de disposer de deux types de mesures d’éducation en milieu ouvert, ce qui pose inexorablement la question des équipements et des services qui auront la mission d’en assurer l’exécution et donc de la place respective des services à la liberté surveillée et des services de milieu ouvert dans l’équipement de base dont doit disposer le juge des enfants. 

De fait, pendant les premières années de l’application de l’ordonnance de 1958, à compter du 1er octobre 1959, une certaine confusion concernant la nature de ces équipements règne. Faute d’antériorité de la pratique et selon les schémas hérités des anciens textes sur la protection, distinguant action sur les familles pour lesquelles sont habilités les services sociaux spécialisés et action individuelle sur les mineurs, les juges des enfants pouvant faire suivre la famille d’un mineur en danger par un service de milieu ouvert, recourent fréquemment au service de la liberté surveillée. Le rapport note, qu’en l’absence de services sociaux spécialisés, «ce recours aux services de l’Éducation surveillée se justifie, bien que l’action sociale à exercer vis-à-vis des familles – notamment de celles comptant des enfants en bas âge – soit différente de l’action éducative sur les jeunes, pour laquelle les éducateurs ont reçu une formation particulière». En effet, la principale caractéristique de l’action des services de la liberté surveillée est d’être individuelle (que les mineurs soient délinquants ou en danger). 

En 1961, le nombre de familles suivies (3,396) par des délégués permanents reste important. Certes, une large majorité des mineurs en liberté surveillée sont des délinquants, mais la proportion de mineurs en danger continue d’augmenter pour s’établir à 20 %. Ni l’habilitation des services de milieu ouvert en assez grand nombre, ni la mise en place de quelques services d’éducation en milieu ouvert intégrée aux consultations d’orientation et d’action éducative du secteur public, ne semblent en mesure de stopper le recours aux services de la liberté surveillée. En 1963, sur 10,162 mesures nouvelles, 7,885 sont des mesures de liberté surveillée proprement dites et 2,277 sont des mesures d’assistance éducative suivies dans le cadre de la LS, «sans que le nombre des éducateurs chargés de la liberté surveillée ait été augmenté de manière sensible». Même si le nombre des délégués a tendance à augmenter passant en 1958 de 115 délégués permanents à 173 en 1963, la surcharge des services de la liberté surveillée n’engage pas à considérer l’exercice des mesures confiées comme conforme à un travail éducatif sérieux, selon des normes que tentent d’imposer la direction et plus particulièrement celui qui a la haute main sur les récentes évolutions méthodologiques de l’observation, Henri Michard.

La situation de l’Éducation surveillée est très inconfortable, prise entre d’une part, des services de liberté surveillée inadaptés à l’afflux de jeunes mineurs et de familles, sans fonctionnement d’équipe, et de l’autre un secteur privé d’associations qui cherche à obtenir une habilitation pour des services de milieu ouvert. Une note du 4e bureau s’alarme de la situation en 1961. Elle a pour objet « l’habilitation des services privés d’éducation en milieu ouvert. Interférence avec le plan d’équipement de l’Éducation surveillée (équipement de base et liberté surveillée)». La question se pose à cause du nombre insuffisant de délégués à la liberté surveillée et «les carences actuelles de l’équipement public»; les magistrats encouragent la création de services privés d’éducation en milieu ouvert destinés à pallier «les carences actuelles de l’équipement public». Or, dans le cas où l’éducation en milieu ouvert s’insère dans le cadre d’un équipement de base (avec consultation et observation en milieu ouvert) «le service de la liberté surveillée réduit à la personne d’un délégué ne sera-t-il pas à l’image d’une «peau de chagrin» et son utilité même remise en question ?» Poser la question, c’était déjà y répondre.

Le déclin annoncé de la liberté surveillé
Pour Henri Michard, le constat est le même : l’application de l’ordonnance de 1958 donne lieu à un niveau d’incohérence rarement atteint illustré par le fait que « les services privés d’éducation en milieu viennent tout simplement doubler les services de la liberté surveillée». Selon lui, une clarification est rendue nécessaire par l’inscription au IVe Plan et la réalisation d’un équipement de base au niveau régional (sur tout le territoire) dont la spécificité justifie de son appartenance au secteur public de l’Éducation surveillée. Tactiquement, la réalisation de l’équipement de base des tribunaux passe donc d’abord par l’affirmation d’une définition « claire et nette de l’équipement “Éducation surveillée” », sur la base d’une unité fonctionnelle (accueil, observation et rééducation), ensuite il faut « regrouper dans chaque tribunal pour enfants l’ensemble des réalisations publiques en un même service ». Il propose d’«opérer un regroupement effectif de tous les services, y compris de la liberté surveillée». 

Sa proposition ne manque pas de susciter des réactions, en particulier celle d’Henri Gaillac, magistrat à l’Administration centrale, inspecteur à la direction de l’Éducation surveillée. Il défend l’idée que « le délégué a des fonctions très particulières, indépendantes de son rôle d’éducateur en milieu ouvert». Le service d’éducation en milieu ouvert et le service de liberté surveillée doivent garder leur spécificité, car il en va du rôle du juge des enfants qui, selon H. Gaillac, ne saurait être rabaissé, il doit être placé au centre de l’organigramme de l’équipement de base : « Il ne s’agit pas d’une querelle de forme mais bien du fond du problème. Le juge des enfants doit rester le «patron» de la rééducation.» Et pour ce faire, «il a besoin d’un service éducatif à ses côtés», d’un « organisme charnière entre le judiciaire et l’éducatif » et avec comme relais à ces deux actions, un «éducateur-conseil», sorte d’assistant, d’adjoint du juge des enfants.

En réponse à cette crainte de « voir les magistrats dépossédés d’une partie de leur pouvoir de contrôle», suscitée par la proposition d’Henri Michard, c’est un autre magistrat, chef de cabinet du directeur de l’Éducation surveillée P. Ceccaldi, Martial Dazat, qui signe de manière cinglante le dernier acte d’une pièce où trois protagonistes se disputent une place prééminente dans le futur secteur de l’éducation en milieu ouvert: le secteur privé à l’assaut des services d’éducation en milieu ouvert depuis l’ordonnance de 1958, le secteur public de l’Éducation surveillée qui souhaite installer des centres d’action éducative sur tout le territoire en tant qu’organisme complexe et polyvalent, et certains magistrats espérant faire des services de la liberté surveillée le relais privilégié de leur activité. Or, selon M. Dazat, deux raisons viennent freiner les prétentions d’H. Gaillac à mettre l’équipement léger sous la coupe des magistrats ou à empêcher l’absorption de la liberté surveillée par ces organismes:

« [d’une part,] il serait erroné de vouloir contrarier une évolution irréversible en renforçant les vieux services de liberté surveillée où plusieurs centaines de mineurs sont suivis de plus ou moins loin par un ou deux délégués permanents», [d’autre part,] «si l’équipement léger a pour caractère d’être mis plus aisément à la disposition du juge des enfants, rien ne permet de conclure qu’il doive en être à quelque titre que ce soit le chef. Toutes proportions gardées, les organismes d’éducation surveillée ne sont pas plus sous son autorité que la police et la gendarmerie ne sont sous l’autorité du parquet ou du juge d’instruction».

Il donne ainsi raison à Henri Michard sur deux points: d’une part, l’éducation en milieu ouvert en tant que provenant de l’observation en milieu ouvert, surpasse techniquement la liberté surveillée, d’autre part, les relations du magistrat pour enfants avec les services rassemblant des équipes de techniciens sont complexes et nécessitent «l’instauration d’une dialectique entre le judiciaire et le «technique» (ou l’éducatif)», mais certainement pas l’instauration d’une domination de l’un sur l’autre. Dans le courant des années 1960 et à l’occasion de la préparation du Ve Plan d’équipement social, H. Michard persiste à distinguer dans les formes principales d’éducation en milieu ouvert, «la mesure d’éducation individuelle, à dominante d’action sociale (type liberté surveillée classique)» et «la mesure d’éducation individuelle, où l’éducateur agit soutenu et guidé par l’ensemble de l’équipe interdisciplinaire».

En 1973, H. Michard croit pouvoir dire de la liberté surveillée qu’elle apparaît «comme un mode de rééducation artisanal», faisant «un peu figure de survivance appelée à s’effacer progressivement devant l’expansion du milieu ouvert» concédant qu’«elle demeure néanmoins nécessaire: elle reste, en effet, pour le juge des enfants un instrument précieux, qui lui permet de déclencher des interventions rapides. Il ne faut pas, par ailleurs, mésestimer le rôle de conseillers techniques que beaucoup de délégués anciens et expérimentés jouent auprès des magistrats».”

– Jean-Pierre Jurmand, “«Promesses» et trahison, une histoire de la liberté surveillée au lendemain de la seconde guerre mondiale en France.”  Revue d’histoire de l’enfance «irrégulière». Volume 17 | 2015: Naissance et mutation de la justice des mineurs. pp. 183-188.

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“La stratégie de l’Éducation surveillée est de ramener dans ses filets un secteur qui a priori relève plus du périmètre de compétence de la juridiction et du juge des enfants, ou tout du moins qui est placé dans son orbite, tout comme les services sociaux auprès des tribunaux. Or deux des quatre attributions de la Direction sont : «le contrôle des services sociaux fonctionnant auprès des tribunaux pour enfants» et «le contrôle des mesures relatives à la liberté surveillée des mineurs». Certes, une grande partie de son activité et la totalité des investissements en personnel sont consacrées à la gestion et à la réforme des internats d’observation et de rééducation pour lesquels elle a fort à faire. Mais elle ne peut se désintéresser de la cure libre, qui, dans les instances et congrès internationaux, est présentée comme le versant symétrique du placement en internat (ou son prolongement en milieu libre), indispensable à développer.

Pour J.-L. Costa, la liberté surveillée devient «un procédé de portée générale, l’instrument juridique de la politique des tribunaux pour enfants», à condition qu’elle soit organisée. Son organisation est l’œuvre des délégués permanents. Le délégué permanent est normalement nommé par le juge des enfants, mais sa rémunération suppose un agrément de la Chancellerie, ce qui peut ainsi apparaître comme un contrôle déguisé. En l’espace de quatre ans, la situation de ces délégués va rapidement évoluer. Un véritable processus de professionnalisation s’amorce dans la mesure où les trois conditions nécessaires à une reconnaissance professionnelle sont remplies : la nomination, le statut, la rémunération. La direction de l’Éducation surveillée se donne les moyens de constituer un corps professionnel intermédiaire. La difficulté est qu’ils sont auxiliaires de la justice et que le seul modèle professionnel dans le genre est celui des assistantes sociales. Là où la liberté surveillée s’était affirmée et distinguée, dans la période de l’entre-deux-guerres, comme le trait d’union entre le privé et le tribunal, elle tend à devenir, à partir de 1946, le relais entre l’État (par le biais de son administration) et le tribunal. En 1948, le directeur de l’Éducation surveillée, en même temps qu’il cherche à clarifier le rôle de cet auxiliaire de justice, estime «qu’il conviendra, dès que ce sera possible, de réviser les dispositions de l’arrêté du 1er juillet 1945 et de faire nommer les délégués par le garde des Sceaux, sur une liste dressée par le juge des enfants». La circulaire du 1er juin 1949 franchit une étape supplémentaire. Elle répond à la nécessité de «recruter un personnel de qualité, possédant une formation sociale et psychologique solide et des connaissances juridiques et administratives assez étendues». Elle fixe leur nouveau statut et modifie leur recrutement : désormais ils seront contractuels et seront nommés par le garde des Sceaux. Leur situation est alignée sur celle des assistantes sociales et assistantes sociales chefs, ainsi que leur rémunération. L’amélioration du recrutement des permanents «qui tendent de plus en plus à devenir des techniciens sociaux» ouvre, selon la direction de l’Éducation surveillée, de nouvelles perspectives à l’institution de la liberté surveillée. Le terme de technicien social pour désigner le délégué permanent, indique qu’il est l’artisan de l’adaptation de la liberté surveillée au milieu social et familial.

La direction de l’Éducation se rallie à la double perspective ouverte par la frange la plus innovante des juges des enfants, d’une part, de réaliser par le biais de la liberté surveillée l’observation en milieu ouvert, d’autre part, de sortir la liberté surveillée «du champ trop étroit de l’enfance délinquante pour exercer tous ses bienfaits d’assistance et de prévention dans celui, beaucoup plus vaste, et tout aussi intéressant, de l’enfance à protéger». C’est, à l’époque, en juillet 1948, qu’est déposé par Germaine Poinso-Chapuis un premier texte de projet de loi sur la réforme de la protection de l’enfance en danger moral.

Ces deux points font l’objet de discussions lors de la 3e session d’études des juges des enfants qui rassemble 29 magistrats à Marly-le-Roi en novembre 1949. Plus globalement, des juges des enfants, à l’instar de Jean Chazal, juge des enfants au tribunal de la Seine, qui dès 1947 a fait part de son expérience d’organisation de la liberté surveillée au tribunal de la Seine, renouvellent leur vision de l’action du délégué à la liberté surveillée et de son rôle. L’action du bénévole est débarrassée «de tout caractère paternaliste», elle se substitue au tutorat moralisateur de l’entre-deux-guerres. Désormais elle se veut efficace, moderne, attentive aux conditions d’existence du mineur, à sa santé, à son travail et à l’organisation de ses loisirs ; elle est construite sur une relation d’aide et de soutien; par le biais de «l’accrochage affectif», le délégué cherche à gagner la confiance de l’enfant.

Certains pensent que l’un des principaux ressorts de l’éducation en milieu libre est l’action sociale ; le rôle du juge des enfants est incontestable, dans un pays appelé à «devenir une Nation essentiellement sociale». «Le juge des enfants participe à l’action sociale» dira plus tard un autre juge des enfants témoignant de son engagement. «Personnage plus social que judiciaire» autour de qui s’organise un ensemble fonctionnel, embryon d’un équipement local: «service de la liberté surveillée, centre d’accueil, service social d’enquête, foyer de semi-liberté, service de placement».”


Jean-Pierre Jurmand, “«Promesses» et trahison, une histoire de la liberté surveillée au lendemain de la seconde guerre mondiale en France.” 

Revue d’histoire de l’enfance «irrégulière». Volume 17 | 2015: Naissance et mutation de la justice des mineurs. pp. 173-175.

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“Isolated incidents of prison-based research before World War II formed the foundation for a practice that would become firmly embedded in the structure of American clinical research during World War II. Perhaps the most significant wartime medical research project in which American scientists employed prisoners as research subjects was centered in Illinois’s Stateville Prison. Beginning in 1944, hundreds of Illinois prisoners submitted to experimental cases of malaria as researchers attempted to find more effective means to prevent and cure tropical diseases that ravaged Allied forces in the Pacific Theater. 

In 1947, a committee was established by the governor of Illinois to examine the ethics of using state prisoners as research subjects. The committee was chaired by Andrew Ivy, a prominent University of Illinois physiologist and the chief expert witness on medical ethics for the prosecutors at the Nuremberg Medical Trial, where prison research was a salient topic. The committee pronounced the wartime experiments at Stateville Prison “ideal” in their conformity with the newly adopted rules of the American Medical Association concerning human experimentation. The AMA rules, which Ivy had played a key role in developing, included provisions stipulating voluntary consent from subjects, prior animal experimentation, and carefully managed research under the authority of properly qualified clinical researchers. Perhaps most significantly, the findings of Ivy’s committee were announced to the American medical community when the group’s final report was reproduced in the Journal of the American Medical Association. The appearance of this report in the nation’s leading medical journal both represented and reinforced the sentiment that prison research was ethically acceptable.

Publicly aired assertions that experimentation on prisoners relied on exploitation or coercion were extremely rare in the United States before the late 1960s. One criticism of medical research behind bars did, however, emerge with some frequency: prisoners who participated in research were somehow escaping from their just measures of punishment. Inmates were usually offered rewards in exchange for their scientific services, ranging from more comfortable surroundings, to cash, to early release. Perhaps the most powerful statement of the concern that convicts should not receive special treatment because they had participated in an experiment came from the AMA. In 1952, this organization formally approved a resolution stating its “disapproval of the participation in scientific experiments of persons convicted of murder, rape, arson, kidnapping, treason, or other heinous crimes.” The AMA was alarmed that some such criminals “have not only received citations, but have in some instances been granted parole much sooner than would otherwise have occurred." 

It should be noted that the use of prisoners as research subjects seems to have been a uniquely American practice in the years following World War II. The large-scale successes of prison experimentation during World War II–and the authoritative pronouncement of the Ivy Committee that prison research could be conducted in an ethical fashion–seem to have given the practice a kind of momentum in this country that it did not have elsewhere. In other countries it seems that the first clause of the Nuremberg Code was interpreted to preclude the use of prisoners in experimentation. This clause begins with the assertion that the only acceptable experimental subjects are those who are "so situated as to be able to exercise free power of choice.”

It is difficult to overemphasize just how common the practice became in the United States during the postwar years. Researchers employed prisoners as subjects in a multitude of experiments that ranged in purpose from a desire to understand the cause of cancer to a need to test the effects of a new cosmetic. After the Food and Drug Administration’s restructuring of drug-testing regulations in 1962, prisoners became almost the exclusive subjects in nonfederally funded Phase I pharmaceutical trials designed to test the toxicity of new drugs. By 1972, FDA officials estimated that more than 90 percent of all investigational drugs were first tested on prisoners.

It appears that throughout the history of medical experimentation on American prisoners many inmates have valued the opportunity to participate in medical research. One must quickly add that such an observation points to the paucity of opportunities open to most prisoners. The common perception among inmates that participating in a medical experiment was a good opportunity has had an important impact on the racial aspects of prison experimentation. Because of the large numbers of African-Americans in prison (and the overt racial exploitation of the notorious Tuskegee syphilis study, in which black men with syphilis were observed but not treated), it might be assumed that minorities predominated as research subjects in prisons. The opposite has generally been true; white prisoners have usually been overrepresented in the “privileged” role of research subject. In most prison studies before and during World War II, it seems that all of the research subjects were white. In 1975, the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research carefully examined the racial composition of the research subjects at a prison with a major drug-testing program. The commission found that African-Americans made up only 31 percent of the subject population, while this racial “minority” formed 68 percent of the general prison population.

The shift in public opinion against the use of prisoners as research subjects, which began in the late 1960s, was no doubt tied to many other social and political changes sweeping the country: the civil rights movement, the women’s movement, the patients’ rights movement, the prisoners’ rights movement, and the general questioning of authority associated with the anti-Vietnam War protests. But, as has been common in the history of human experimentation, scandal galvanized public attention, brought official inquiry, and resulted in significant change. A major scandal in prison experimentation came when the New York Times published a front-page article on July 29, 1969, detailing an ethically and scientifically sloppy drug-testing program that a physician had established in the state prisons of Alabama. Even more sensational was Jessica Mitford’s January 1973 Atlantic Monthly article. In this article, Mitford portrayed experimentation on prisoners as a practice built on exploitation and coercion of an extremely disadvantaged class.[66] When the article reappeared later in 1973 as a chapter in her widely read book critiquing American prisons, she had come up with an especially provocative and suggestive title for this section of the book: “Cheaper than Chimpanzees." Mitford, and most of the growing number who condemned experimentation on prisoners during the 1970s (and after), offered two arguments against the practice. First, prisoners were identified as incapable of offering voluntary consent because of a belief that most (some argued, all) prisons are inherently coercive environments. Another line of argument was based on a principle of justice that stipulated that one class–especially a disadvantaged class such as prisoners–should not be expected to carry an undue burden of service in the realm of medical research.”

– “Chapter 9.4 History of Prison Research Regulation,” Advisory Committee on Human Radiation Experiments, Final Report. US Department of Energy Office of Environment, Health, Safety and Security Search, 1994.

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“C’est à Binet, au début du XXème siècle, que nous devons une des premières formes modernes d’observation du corps des enfants instables, les retardés scolaires. Il propose de combiner les mesures anthropométriques et un regard attentif sur le corps de ces enfants, afin de pouvoir bien les distinguer et ainsi adapter un traitement destiné à leur venir en aide, ou tout au moins «éveiller l’attention du pédagogue». C’est ce qu’il appelle les idées modernes sur l’éducation. L’idée de combiner plusieurs types d’approches, dictée par l’état des connaissances anthropométriques de l’époque, ne permettait pas de conclure à l’existence de liens avec l’intelligence de l’écolier. Mais «sans doute des corrélations existent», pense-t-il. Après avoir examiné 600 enfants du primaire, il conclut «que les avancés-intellectuels, sont plus nombreux parmi les avancés-physiques que parmi les retardés-physiques». Cette règle ne se vérifie pas sur un petit groupe (il y a 21 % de chétifs parmi les avancés-intellectuels), mais plutôt dans les grands nombres, remarque-t-il.

Binet s’inscrit néanmoins dans le courant hygiéniste qui associe le corps des pauvres, des faibles et des délinquants à la mise en danger de la race. Il entend construire sur les enfants un savoir total. Il diffuse largement ses idées dans le système primaire, par les réunions qu’il anime, par son enseignement et par les revues auxquelles il collabore. Binet est, en France, le créateur de la psychologie et de l’orientation scolaires. Il a une position intellectuelle forte. Il est à l’origine de la constitution d’un savoir spécifique sur les élèves en difficulté scolaire. Ce savoir concerne l’intelligence, mais aussi le corps. A travers le développement physique, mesuré en partie par les données anthropométriques, «l’avenir de notre race et l’organisation de notre société» sont en jeu, dit-il. Il place ainsi l’étude du corps dans une perspective démographique et sociale, domaine bien plus large que les 600 élèves de son enquête, dans laquelle il postule des corrélations visibles entre le physique et l’intellectuel.

Le corps des élèves est un sujet d’inquiétude. Il faut apprendre à le regarder. Le regard est, pour Binet, un instrument de mesure sûr. Toutefois, il recommande de ne pas pratiquer les examens corporels avec un état d’esprit trop optimiste, qui fausserait l’acuité du regard. Lors de l’examen du corps, le regard doit se porter sur «l’attitude du corps, la coloration de la peau, du visage, la forme et l’expression des traits». Le corps des enfants instables, des retardés scolaires, se distingue clairement de celui des autres enfants, car il dégage «une impression indéfinissable de misère physiologique».

Les enfants de pauvres, qui constituent la majorité des enfants à problèmes, sont reconnaissables à leur corps moins développé, «chétif, maigre […] au système nerveux mal équilibré». Si le regard est attentif, on peut y voir «un tube digestif qui digère mal, un estomac dilaté, un sang qui n’est pas assez riche». L’examinateur verrait donc l’intérieur du corps. Binet octroie ainsi aux éducateurs un pouvoir redoutable sur le corps des enfants difficiles. En même temps, il contribue à déposséder ces enfants de leur propre corps, qui n’est défini qu’en termes négatifs au regard de la personne, de la race et de l’ordre social.

Ce corps des enfants à problèmes, qui résulte d’une double misère, physiologique et sociale, produit des déclassés, des mécontents, des révolutionnaires. Ces résultats sont, dit-il, identiques à ceux obtenus dans d’autres pays, par de nombreux chercheurs.

Les chétifs, les malingres, les enfants dont le développement du corps est retardé sont issus de parents «de condition pauvre et même misérable». Dans ce type de raisonnement, le corps faible est celui du pauvre, et il doit changer car il est dangereux pour la société. De ce point de vue, quelle que soit la pensée de l’auteur, et Binet est sincèrement attaché à l’aide aux enfants en difficulté, ce lien qu’il établit entre le corporel et le danger pour la race produit, in fine, une pensée intolérante et discriminatoire. Parmi les auteurs ayant abouti aux mêmes conclusions que lui, Binet cite Niceforo.26 Ce dernier a étudié, en 1905, «la classe pauvre » en France. Il est un des auteurs favoris de l’anthropo-sociologue Vacher de Lapouge qui le cite abondamment. Niceforo définit, lui aussi, les enfants pauvres comme faibles de taille, de poids, de périmètre thoracique, de circonférence de tête, de hauteur de front.27 Il fait de cette faiblesse une infériorité, et de cette dernière, une dégénérescence. Il note que les classes pauvres sont fécondes en dégénérés.

Liant le tout, il en conclut que leur corps faible est la cause principale de leur état social: «L’état misérable est et sera toujours l’effet de leur infériorité physique et mentale. Appliquant son modèle à l’exode rural, il met en garde contre «les débiles de corps et d’esprit, les paresseux, les alcooliques, les demi-infirmes […] ce flot impur de dégénérés [qui] arrive en ville». Le corps des pauvres est devenu celui des dégénérés, en qui Vacher de Lapouge voit «des sauvages primitifs à mentalité trop rudimentaire ». Eugéniste, malthusien, il fait de ces corps chétifs et malingres, faibles, le danger inacceptable pour la régénération de la race. Il sont «les descendants non éliminés des inaptes à la vie civilisée », qui contrarient le renouvellement satisfaisant de l’espèce humaine, dont ils sont exclus. La régénération de la race ne peut passer par eux, lorsqu’on a comme projet la sélection de l’espèce par « l’aristocratie héréditaire » qu’appelle de ses vœux Carrel.

La dégénérescence du corps, visible par des malformations diverses, devient la caractéristique des délinquants, de tous ceux qui constituent, selon Van-Etten en 1937, l’adolescence coupable. Pour Dussenty, dans sa thèse de droit, «le nombre des dégénérés est très grand»; la dégradation du corps, associée «aux tares nerveuses», est la cause essentielle du vagabondage des mineurs. Il appelle à la création de centres de tri et d’observation de la jeunesse vagabonde, en difficulté sociale et personnelle.”


Francis Mendiague,
“Regards du corps et archaïsmes. L’ordonnancement des déviances par la rééducation du corps.”

Revue d’histoire de l’enfance «irrégulière».

Numéro 9 | 2007 : Violences et jeunesse, pp. 195-198.

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“Mountain Prison, known as "Buchenwald” to the Sons of Freedom Sect, is situated five miles northwest of Agassiz, B.C. in the Fraser Valley on a prison reserve of one hundred and fifty-eight acres. The prison itself is situated at the foot of Burnside Mountain overlooking fertile farm land and just north of a section of the Fraser Valley which suffered considerable flood damage in 1948.

Construction of this $300,000 maximum security prison commenced in May 1962 and the prison was in operation by July of the same year. All buildings, and their furnishings are metal on cement slabs. The male and female sections are separated by an eight foot barbed wire fence and the two sections are encircled by an eight-foot mesh fence.

The female section is comprised of a combination washroom and hospital, combination kitchen and mess, and one dormitory; is built to accommodate fifty inmates, and has a population of 13. This section is staffed by 9 matrons and supervised by the male administration.

The male compound consists of four dormitories, combination hospital and washroom, and a combination kitchen and dining area. This section is built to accommodate two hundred inmates, has a population of 86 and a total staff of 22.

All administration buildings, including male and female staff quarters, workshop, two-stall garage, stores, visiting room and officer, are constructed outside the perimeter mesh fence overlooking the prison compound.

Immediately after the prison was opened in July 1962, the staff was confronted with a display of stripping and nude parading followed by a fourteen-day fasting which the rebellious inmates would not even pick up their own bedding. All buildings in both compounds are equipped with old fashioned, pot-bellied, wood-fired stoves. The inmates are expected to cut the wood which is hauled in four foot lengths from the nearby Experimental Farm to be used for heating, cooking, etc. This is resented by the inmates who do not believe they should be doing any work. As a result of their attitude, it has been impossible to introduce a proper inmate training programs and, consequently, the inmates are not provided with newspapers, books, radios, tobacco or sports equipment.

The Freedomites prepare and cook their own meals which consist mainly of vegetables, eggs, cheese, etc., and contain no meat or meat products. The majority of them eat more than is required and consequently are over-weight and flabby. 

They are a communal sect and during visits between the two sections which are limited to one half-hour visit each month, their general topic of conversation pertains to discussions on the welfare of their relations.  These unpredictable people refuse to think as individuals and all requests and demands made upon the administration are made as a group. 

Almost  one  year to the day after Mountain Prison  commenced operations, and after many meetings and a prayer service  by  the  inmates, they requested to see the Superintendent.  The officer in charge  realized the precariousness  of the tense situation and contacted the Superintendent immediately, who returned to the prison from Victoria.  Upon his arrival all  the  inmates gathered around him and their declaration of a ‘fast unto death’ was read by one member. This was received in writing and was later to become  a  legal document.

The subsequent fast which began on July 21, 1963, and lasted one hundred and two days hospitalized ten inmates and resulted in the death of one Freedomite. On the advice of the attending physician, the staff  was forced to feed one hundred inmates for approximately two  and a  half months. Because of the limited staff force and acts of violence by some inmates, it was necessary to call upon  the parent  institution, a medical team, and a number of prevailing
rate employees for assistance.

A crucial time during the fast period came with the arrival of approximately seven hundred trekking Doukhobors from Vancouver  and the  interior of B.C. They arrived in cars, trucks, and  buses,  and set up camp at the east entrance to the prison, less than one-quarter of a mile  from  the prison compound. Visits and corresponding privileges with the inmates are not allowed and the trekkers, therefore, resorted to climbing the nearby mountains from where the shout and signal greetings to the inmates. 

Now with winter approaching, activity in the tent town has been brisk. Approximately one hundred and ninety of their crude shelters are being covered with wooden frames, cardboard  and  plastic,  or any  other material that can be gathered from the countryside and from the nearby garbage dump. They are gathering wood for heating and cooking on the makeshift stoves with pipes from old one-quart fruit  juice and oil cans.

Weekends find the road to Mountain Prison and "tent town" jammed with Canadian  and United States tourists seeking a glimpse of these poor confused renegades who have defied all the laws of our land. 

What happens next to this radical  sect is unknown.  The forthcoming winter, with its rainfall and winds which could reach a velocity of sixty miles an hour will, no doubt, test the will of the trekkers to remain at the gates of Mountain Prison.

One thing appears certain, unfortunately. The leaders of the Sons of  Freedom Doukhobor Sect will continue more vigorously than ever to rule the rest of the sect by terror, threat  and  indoctrination. They will continue to despise man-made laws, destroy property,  and  seek public sympathy. All for a cause which we — or  they themselves — cannot understand.”

– Superintendent Raymond Wilson, Mountain Institution, “Mountain Prison’s Fanatical Sons,” Federal Corrections. Volume 2A – No. 4. September-October-November 1963.

Photograph shows two elders of the Sons of Freedom

‘trekkers’ outside of Mountain Prison, in the Agassiz camp, protesting the death of an inmate on fast. Source is

Doukhobor Genealogy Website. From the private collection of the George Henry (“Timothy”) Eaton family, West Vancouver, British Columbia.

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“Chicago Courts Drive Back The Mounting Wave of Crime,” Chicago Sunday Tribune. October 15, 1933. Pages 4 & 5.

The ‘War on Crime’ – frequent arrests, violent shoot-outs, harsh sentences, anti-corruption drives, mass incarceration – to break ‘commercialized crime’ in Chicago.

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“I don’t put the blame on prison guards. They’re only workers. They’re not inanimate things, cement walls that can neither see nor hear nor think. Most of them didn’t choose their jobs; they ended up there because they thought they had no other choice. I’ve spent a total of twelve years inside walls, behind bars and fences, and I’ve never met a prison guard in whom I saw no trace of myself. I never met a guard who had dreamed that patrolling a convict yard would be the daily content of his life. Very few of those I’ve met admitted to never having dreamed, never having imagined themselves proud of projects undertaken with one or several genuine friends. Was our point of departure the same, and were we at some point interchangeable? How much has each of us contributed to what each has undergone? If a guard ever dreamed, was it of prisons and camps that he dreamed, and was he my jailer-to-be already then?”

– Fredy Perlman, Letters of Insurgents.

Published by Black and Red Press, Detroit, 1976.

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“Rebellion Hits 4th City Jail – 3 Injured; Hostages Total 24,” New York Sunday News. October 4, 1970.

Their Fate In Prisoner’s Hands.

A Wildfire of Anger from Jail to Jail

Our Reporter Takes a Long Walk in a Dark Place

Get a Behind-Bars Hearing.

[AL: I’m not going to transcribe all of these articles about the prisoner revolt in New York in 1970, but read more with these excerpts (Part 1. Part 2. Part 3. Part 4.) from Toussaint Losier’s article “Against ‘law and order’ lockup: the 1970 NYC jail rebellions,” Race & Class, 2017, Vol. 59 (1).]  

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“We are fortunate to now have in a French edition a collection of the five booklets produced by the

Groupe d’information sur les prisons

between February 1971 and January 1973 – Intolérable, numbers 1 through 4, and a collection of prisoners’ demands – combining questionnaires and inquiries on prison conditions, texts and declarations from prison uprisings, reports by prison psychiatrists, a dossier on the killing of George Jackson and the black prison movement in the US, and correspondence and information about the wave of suicides in French prisons. This small archive is all the richer inasmuch as it repels a reduction of its ambiguities through the flattening logic of the futur antèrieur (“it will have been the case” that these inquiries were a step away from Marxism and towards democracy…).

As the declaration and prefatory text to Intolérable 1 manifest, the GIP’s prison inquiries are a sui generis combination of methods and objectives stemming from the experience of French Maoism, the ferment in the penal system, broader shifts on the French Left, mutations in the figure of the intellectual, and the political thought of Michel Foucault. The GIP’s inauguration coincides with the end of a hunger strike of Maoist prisoners – and with their decision no longer to demand the status of “political prisoners,” in contradistinction to ordinary (droit commun) inmates. For all of the editor’s emphasis on the irreducible singularity of which the GIP is supposed to be the bare repeater or relay, the group’s pamphlets begin with a minimal but incontrovertible slogan: “Courts cops hospitals asylums school military service the press the TV the State and first of all the prisons are intolerable.” Refusing the horizon of “reformism,” they declare that allowing prisoners to speak on their own behalf, and using the group to transmit their speech and writing to other prisoners, is “the only means to unify in the same struggle the inside and outside of the prison” (16). It is not a matter of inculcating the “consciousness of oppression,” which could hardly be absent, nor knowledge of who the enemy is, a daily experience; rather, it is a question of countering the manner in which the means of formulating, expressing, and organizing this consciousness are systematically quashed and confiscated.

There is irony in how the Maoist principle “no investigation, no right to speak” comes to inform these inquiries. For whereas the Maoists first tried to “establish” themselves in the factories to organize the struggle, they were thrown into jails against their will. And their first instinct was separation. Unity here is thus a matter of breaking a division that – as Foucault notes in a number of contemporaneous interviews – was both imposed upon and eventually affirmed by the workers’ movement, with its debilitating introjection of a bourgeois morality itself reproduced by legal and penal institutions: the division between the proletariat and the “non-proletarianized plebs.” The context of the rallying of the GP to the GIP, and of Foucault’s thinking at the time, is thus that of an attempt to overcome the segmentations among the oppressed, primarily between proletarians (or plebs) with a relationship to the factory and ones without.

To the extent that the penal system is aimed at producing the isolation of a (criminalized) fraction of the working class, Foucault presents the primary objective of the GIP as the “reintegration” of this fraction into political struggles. Moreover, this attempt to suture the fracture in the proletariat – reproduced both by the repressive apparatus and by the official institutions of the workers’ movement – is doubled by a different kind of alliance-building, in which what has become “intolerable” to “new social strata (intellectual, technicians, doctors, journalists, etc.)” (17) about the ruling order is connected to what has always been intolerable in the experience of the exploited class. “Intolerance” is thus framed not (just) as a humanist cry, but as a project for unifying struggles against capitalism – not by providing them with a “thinking head” but by allowing them to communicate with one another beyond their enforced isolation. These “intolerance-inquiries” (enquêtes-intolerance) have four principles: not to attenuate oppressive power but to attack it in a political act; to be the “first episode of a struggle” by targeting specific institutions and individuals,  naming names; to unite around these targets different strata kept separate by the ruling class, thus constituting a single “front of attack”; to be inquiries from the inside, in which the customary objects of investigation become the investigators, speaking on their own behalf and “taking charge of the struggle that will stop oppression from exercising itself” (18).

Despite the shifts in Foucault’s own accounts of the GIP, it is important to keep in mind this explicitly anti-capitalist dimension of the prison inquiries – conceived as instruments to organize a unity against the strategies of domination – if only not to have them retrospectively overwhelmed by the emphasis on “saying the event,” and on not interfering with the words of the imprisoned. The distance between the GIP and classical modes of Marxist organizing is evident enough: an explicit refusal of vanguard organizing, not to mention of traditional distinctions between disciplined workers and the delinquent rabble, is everywhere present. It is also true that many of the terms and practices of the GIP – its stress on public opinion or rights, for instance – seem to belong to a liberal firmament; and that, notwithstanding the protestations against reformism, Foucault himself mused about it calling forth “a new Beccaria.” 9 But the vanishing mediator narrative occludes the antagonistic dimensions of the project, not to mention how, be it in the documenting of George Jackson’s struggle or in Foucault’s coquetting with a vision of criminality as revolutionary (he quotes Hugo on crime as a “coup d’état from below”), it is anything but safely “democratic.”

Much of the willful political ambivalence in these inquiries lies in the very adjective that gives them their title: intolerable. Against the “commission of inquiry” (a common practice of the liberal or radical Left) or the sociological study, they reject the “accumulation of knowledge” for the sake of two aims: to allow prisoners to communicate their experiences and struggles to each other and the outside, in their own words; to intensify and organize an “active intolerance.” This intolerance leaves undetermined whether it would be assuaged by reform or realized in revolution (though we could hazard that the GIP’s tendency, as that of Foucault, is somehow to think a point of indifference between reform and revolt, while bracketing the question of revolution). Perhaps we could say that it lies very much on the hither side of such totalizing questions, though it need not avoid totalizing positions. Objecting to an interviewer’s request to delineate what for him would be an “ideal penal system,” Foucault puts the question as follows – in a class language which he often adopted in this period, allowing it to wane and disappear as the 1970s wore on: “I am simply trying to make visible, to allow to appear and to be transformed in a discourse readable to all, what is unbearable for the least privileged classes in the current system of justice.”

It is fitting that the Intolérable inquiries approached this task by beginning in illegality: prisoners were not allowed to participate in the initial questionnaire so these had to be covertly distributed, by various contacts, especially family members (“some families have become investigators,” the pamphlet notes), in the punitively surveilled context of the “prison visit” (one of the key objects of the inquiries). The approach of Intolérable 1 is methodical. The booklet includes two full questionnaires, two long accounts of prison conditions by prisoners in different establishments, and an anthology of representative statements, thematically classified, from the remainder of the questionnaires. Contrary to Artières’s suggestion in his postface that the GIP had no slogan but that of letting the prisoners speak for themselves (itself a declaration that could be easily problematized: “letting speak” is a very complex act), the first booklet does present itself as connected to a campaign – against the criminal record, posited as a key site for fighting the state’s unlimited power, the hypocrisy of its claims to reeducation, and the endemic violation of labour rights, which turns every release into a mere reprieve.

The questionnaires cover, in detail at once harrowing and repetitious, the conditions of prison life in France in 1971 – from the unavailability of dentistry to the brutality of solitary confinement (le mitard), from the lack of books to the filthiness of living quarters, and from the hyper-exploitation of prison labour to the repression of sexual life. Filled out clandestinely, as noted in at least one questionnaire, they are succinct, if detailed, and bleak – like many workers’ inquiries neither enjoyable nor entertaining, and, given the passing of time, also disconnected as reports from the historical immediacy that originally lent them their moral and political force. While Engels’s Manchester still makes for vivid reading, these archives, disjoined from the practice of the GIP, necessarily test the reader – at least for Intolérable 1, it is the monotony of oppression and not the singularity of the voices that stands out. The first questionnaire may give us a clue to this, when, asked “Can you describe the conditions of the prison visit (what seems most intolerable to you)?,” the inmate answers: “No. You cannot describe the conditions of the visit, you have to live them” (though he proceeds to list the noise, the dirt and the anxiety generated by the limit on time) (20).  What is perhaps most revealing, though, is his answer to the last question, which asks for general views about the questionnaire and the inquiry. Starkly, he states “you have the wrong address” – meaning that the prison is not a site that could be reformed on its own without taking on the whole of the justice system, where the police engages in forms of violence even more brutal than the ones meted out by prison guards. Though he welcomes the inquiry, as part of a broader investigation into the barbarities of the justice system, its danger is that “the effect is taken for the cause” (31).

This recalls an important point made by Foucault in his preface to Livrozet’s De la prison à la revolte, where he notes that though prison writings, namely in the form of memoirs, have been tolerated – as long as they were “as extreme and singular as possible,” adventure writings that served as the converse of the forensic thrills of detective fictions – what has always been proscribed has been the production in the first person of theory from prison, especially in the guise of “a thinking of infraction … a certain reflection on law linked to the refusal of law.” Such theorizing must be left in the hands of the social scientists, for whom the prisoner is the investigated, never the investigator, and prisoners can only form a dispersed collection, never a collective movement. Against the idea that “saying the event” requires celebrating irreducible singularity, the GIP’s inquiries can in part also be seen as a move against the temptation, present in the public genre of the prison memoir, to “conjure away everything that is quotidian, familiar, extremely probable, and in the final analysis that is central in our relationship to the police and to justice.” With their detailed enumeration of unwashed toilets, noise, humidity, mediocre slop, cramped “exercise yards,” frustrated sexuality, or the grinding labour of assembling chairs for a local factory owner, the questionnaires are a taxing testament to this everydayness of oppression, as endemic in its generality as it is arbitrary in its individual manifestations (random censorship, whimsical punishments, bizarre regulations). Indescribable suffering channeled into deadpan descriptions: “8 meters square lit by an armoured window; a basin, a toilet, two mattresses, an interphone. Total isolation. The need for contact turns into delirium. I bang my head against the wall to break the monotony.””

– Alberto Toscano, “The Intolerable-Inquiry: The Documents of the Groupe d’information sur les prisons.” Viewpoint Magazine. September 25, 2013.

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Department of Justice
Federal Prison Camp, Tuscon, Ariz.

$50.00 — REWARD — $50.00

CALVIN HOMES – Reg. No. 1959-TA – FBI Number – Unknown

Escaped from Federal Prison Camp, Tuscon, Arizona, on September 18, 1939, at approximately 9:00 p.m. in company with Stockton Darneille, Reg. No. 2149-TA.


(Calvin Johnson Holmes – only known alias)

Sex: Male
Age: 46
Eyes: Blue
Hair: Turning Grey (Receding Forehead)
Color: White
Complexion: Light
Height: 69″
Weight: 178
Build: Stocky
Mustache: None
Nationality: American
Occupation: Salesman

Scars and Marks: None noticeable.

Residence: Terre Haute, Indiana.

Relatives or Friends:
Sister: Mrs. Art Taugaw, R. R. #3, Box 373, Terre Haute Indiana.
Brother: Mr. Kirk Holmes, (Last Known address) 601 Mary St., Evansville, Indiana.

At the time of escape he was wearing blue and white checked denim trousers, white shirt, black oxfords.

Received at Federal Prison Camp, Tuscon, Arizona, on August 4, 1938, on transfer from Federal Correctional Institution, La Tuna, Texas.

Crime: Armed Robbery, Post Office.
Sentence: 25 years.

Reward of $50.00 (Subject to the conditions of Bureau of Prisons Circular No. 2689, amended March 1, 1937).

If apprehended please notify any of the following: Superintendent of the Camp; Director, Bureau of Prisons, Washington, D.C., U.S. Marshal nearest to place of apprehension; or F.B.I., El Paso, Texas, by wire, collect.


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Expanding the Carceral State
While the federal government was no more willing to step into state prisons on behalf of Muslim prisoners than it was in Albany, Georgia, on behalf of nonviolent protestors, the activism of the Muslim Brotherhood continued to receive attention from the state capital in Albany, New York. The writ-writing campaigns of prisoners had helped prompt a national response and the attention of the courts, but it also caused an arm of the state to reach deep into incarcerated communities. Wardens and state corrections officers authorized prison surveillance and, in some cases, even dedicated a staff member to internal supervision of the Nation of Islam. This surveillance was meant not only to absorb and report but also to disrupt and subvert. It also provided the raw material for state knowledge production that could quell prison activism. Prison officials soon emerged as arbiters of religious orthodoxy, determining who and what constituted legitimate Muslim practice.

As they looked to Muslim religious practices such as eating, prayer, and use of Arabic for markers of identity and political agitation, prisoners turned to informal strategies of daily resistance to combat state intrusions. Through its intervention, the state also assigned political meaning to religious practice, further politicizing incarceration and the practice of Islam within prison walls. State surveillance began with prison officers, who had the most daily contact with prisoners. One institution devoted an officer to keeping a list of all active members, searching their cells, and confiscating any literature relating to the Nation of Islam. Seizing materials slowed the spread of conversions and were a source for state intelligence. An area of concern was prisoners’ use of Arabic. The language not only served a cultural and religious function but also flummoxed prison security. For example, Bratcher gave specific instructions in his letter to Malcolm X: his mother would write him of the minister’s reply in red

ink with “three lines of Al-Fatihab” (referring to Al-Fatiha, the first surah in the Qur’an). One state report noted that it “would seem doubtful if the majority of the prisoners can rea[d] and write Arabic but if notes are picked up that seem to contain no meaning maybe they would bear investigating.” Several months later, six pages of Arabic to English and English to Arabic translation were confiscated. 

Another surveillance strategy that relied heavily on prison officers was the scrutiny of Muslim eating habits. The refusal to eat pork in prisons recalls Malcolm X’s own imprisonment in the late 1940s when he and other prisoners protested its prevalence in prison diets. At Attica Prison, Bratcher wrote to Warden Walter Wilkins asking for permission to carry food from the mess hall to his cell so he and other Muslim prisoners could eat after sundown during Ramadan. One prisoner was even charged with wasting state food for throwing away his bacon and refusing to eat it. Daily political acts such as throwing away bacon even escalated to more formal strikes. In Milan, Michigan, where Elijah Muhammad had once been incarcerated for draft resistance, prisoners took part in a three day hunger strike against pork, which eventually resulted in Muslim-prepared food and a separate dining section. 

These actions were challenged by prison officials who quickly seized on dietary restrictions as a way to monitor and challenge the legitimacy of a prisoner’s religious beliefs. “In order to check the authenticity of the Muslims,” Woodward’s memo noted, “each officer has been required to submit to the principal keeper’s office a report on whether or not the particular prisoner in question is eating pork. The members who are eating pork will be … included in next month’s report.” Another institution itemized prisoners’ eating when pork was served in the mess hall: “Of the above total [of 70], 30 prisoners either refused their ration or gave it to another prisoner, and additional 16 prisoners took their ration to their cells and only two were actually observed fasting.” By monitoring prisoners’ eating, writings, and literature, prison officers acted as foot soldiers in the state’s surveillance of the Nation of Islam. 

From this narrow base of day-to-day surveillance, reports on Muslims in prison also radiated outward to the state and federal levels. The success of the NOI’s organized prison litigation continued to trouble prison officials. The first to present on the NOI at the ACA’s annual conference was the noted penologist Donald Clemmer, who authored his foundational study The Prison Community in 1940. By 1963, topics such as “The Black Muslims and Religious Freedom in Prison” and “The Black Muslim in Prison: A Personality Study” surfaced at the conference. The academic communities of penology and criminology emerged as part of the state’s developing knowledge production about the NOI. 

The 1960s also marked a shift from rehabilitative strategies to psychological warfare and new technologies of violence, and Muslim prisoners were often the first subjected to these new experimental practices. As Alan Gómez notes, bibliotherapy was replaced with isolation, sensory deprivation, and brainwashing; Muslim prison litigation helped “propel this shift.” Edgar Schein, a professor of psychology at the Massachusetts Institute of Technology, presented a paper in 1961 to the U.S. Bureau of Prisons entitled “Man against Man: Brainwashing.” Bertra S. Brown of the National Institute of Mental Health responded by contacting prison administrators and suggesting that they “do things perhaps on your own—undertake a little experiment of what you can do with Muslims.” As Gómez persuasively argues, the ascension of Control Units, Special Housing Units, and Adjustment Centers, were all outgrowths of the experimental use of excessive solitary confinement by prison officials during the late 1950s and early 1960s. These punishments and techniques, he concluded, were “initially experimented with on Muslim inmates [but] later used en masse on political activists [and] became the model for the entire prison regime.”

– Garrett Felber, ““Shades of Mississippi”: The Nation of Islam’s Prison Organizing, the Carceral State, and the Black Freedom Struggle.” The Journal of American History, June 2018. pp. 90-93.

Photos are from Ann Arbor Times, September 6, 1966.

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“As the five men waited for the SaMarion case to reach trial in the summer of 1962, they planned a hunger strike protesting solitary confinement. The prisoners claimed that Bratcher’s segregation was “an excuse by the warden . . to make him seem that he was crazy concerning this trial that was coming up.” Writ writing had exacerbated fears among prison officials and became one of the most successful strategies for Muslim prisoners. The Nation of Islam successfully flooded the courts with writs across the country. Between 1961 and 1978, sixty-six reported federal court decisions were made on suits fled by prisoners affiliated with the Nation of Islam. In California the number of habeas corpus petitions rose from a mere 814 in 1957 to nearly five thousand by 1965. At San Quentin in 1965, prisoners were churning out almost three hundred petitions per month. As Judge Brennan noted at one trial, these were not “cases where uneducated, inexperienced and helpless plaintiffs are involved … these applications are part of a movement.” Prison litigation became the “peaceful equivalent of a riot” by catalyzing public support and bringing national attention to the otherwise-hidden struggles of prisoners.

One of the largest structural challenges to prison organizing was physical isolation from the outside world. Activists relied on what Berger has called “a strategy of visibility” to make their struggles known. Testifying has its political roots in slavery and has been carried forward through the black feminist tradition. As Danielle McGuire points out in her work on the role of the struggle against sexual violence in the civil rights movement, “testimony must be seen as a form of direct action and radical protest.” Black prisoners saw the courts as political pulpits, a breach in the walls allowing them to take their claims before the world outside. As James Jacobs wrote, “it is as if the courts had become a battlefield where prisoners and prison administrators, led by their respective legal champions, engage in mortal combat.” Sostre later wrote that the “court is an arena. It is a battlefield—one of the best. We will use these same torture chambers, these same kangaroo courts, to expose them.”

Nowhere was this more evident than during Malcolm X’s testimony during the SaMarion trial. Bratcher realized that the state would be mobilizing witnesses to testify against the Nation of Islam’s standing in the Muslim world and wrote to the minister that the “‘Key’ witness I am depending on to ‘seal’ our victory is ‘You’ Minister Malcolm ‘X.’” This set the stage for a four-day showdown between Malcolm X and the state’s witness, the Columbia University professor Joseph Franz Schacht. While Malcolm X admitted openly in court that he had an eighth-grade education, no formal theological training, and could not speak Arabic, Schacht had a “masterly knowledge” of the language, and his book Origins of Muhammadan Jurisprudence, which argued for the historical development and sociological implications of Islamic law, was considered a seminal text in the Western study of Islam. Yet Malcolm X weaved around the meritocratic probing of the state. When asked if he had a degree in theology, he noted that if “my understanding of the word ‘theological’ is correct, the study of God, the science that deals with religion and the study of God, I studied theology in that sense under the Honorable Elijah Muhammad about our God.” When pressed on the length of his education, he replied: “I am still studying.” When interrogated on whether or not he was ordained or had a written certificate that permitted him to proselytize, he reminded the court that “Jesus sent his disciples forth with no written certificate or anything but his approval.” Malcolm X’s

testimony was so convincing that when Schacht took the stand and listed his membership in the Royal Netherlands Academy, the Arabic Academy in Damascus, and an honorary degree in Law from University of Algiers, the judge responded: “I don’t think it is quite thoroughly clear at this time to qualify him as an expert.” 

While Henderson had, in effect, apologized for and excused his racism in the same remark, his open respect for Malcolm X’s opinion shifted the tenor of the case. As Griffin recalled, Henderson was “impressed by Malcolm and his testimony … [and] respected Malcolm for his clear statements and responses.” Bresnihan, likely attempting to curry favor with the judge, then began adopting the phrase the “American Black Man” in his questioning. Malcolm X’s use of the courtroom as a political stage reveals the importance of testimony as a form of nonviolent resistance. His testimony lasted three days, and was over 20 percent of the two-week trial transcript, successfully compelling the judge to rule that the Nation of Islam was a religious organization. But more importantly, Malcolm X’s  political views took center stage and fundamentally altered the rhetoric and discourse of the case.

The case at Attica Prison also underscores the important role that the jailhouse lawyer played in organizing legal challenges from prison. Knowing that most prisoners were not qualified to draw up their own legal challenges, prisons such as Attica maintained rules prohibiting legal assistance. For example, “rule 21” at Attica stated: “Prisoners are prohibited except upon approval of the warden to assist other prisoners in preparation of legal papers.” This strategy was reproduced nationally as a means of combatting prison litigation efforts. In Texas, administrators employed a similar strategy, forbidding writ writers from possessing the legal materials of a fellow prisoner. In California this was known as Rule D-2602. Even if a prisoner wanted to use another’s paperwork as a template, officials concluded that any legal material in a cell not pertaining to that prisoner was evidence of prison lawyering. Just as grandfather clauses and poll taxes worked as state mechanisms to disfranchise southern black voters, rules governing legal access and jailhouse lawyering sought to curb legal literacy and prisoners’ access to the judicial system. Thus, when Sostre wrote to Walker, he urged him to copy the writ into his notebook, then flush it down the toilet, but not to “let this lay around. This is dynamite.” He then listed the “most essential weapons in fighting Shaitan” (Arabic transliteration of “the devil”): legal paper, an ink eraser, one dollar of postage stamps, a loose-leaf binder, and a ball-point pen.

Trough cases such as Pierce v. LaVallee, SaMarion v. McGinnis, and later, Cooper v. Pate, the NOI brought about judicial oversight such that, by 1974, the Supreme Court declared that no longer was an “iron curtain drawn between the Constitution and the prisons of this country.” Yet, while the Supreme Court strictly forbade any “direct or indirect interference by prisons or state authorities” in prisoners’ access to the courts, prisons obstructed court access through measures such as rule 21. They also limited legal advice, intimidated writ writers, and disrupted the legal process through solitary confinement.

Despite these attempts, Muslim prisoners were more organized than the often uncoordinated strategies of local prison officials and state policy makers. In one example in California, San Quentin Prison officials set up a small office where three prisoners transcribed writs onto standardized forms and processed them on a duplicating machine. Meanwhile, the California Department of Corrections attempted to clamp down on writ writers by prohibiting access to law literature and court decisions. 

But Sostre’s letter to Walker in solitary confinement also revealed another strategy pointing toward the concurrent tactics of prison organizing and the broader black freedom struggle. Prisoners appropriated the principal mechanism of prison repression—solitary confinement—as a tool of organized protest. Recognizing that most of Attica Prison’s Muslims were already in solitary confinement, Sostre urged Walker to not be sent back to general population. According to Sostre, they “made a pact not to go down until the religious persecution of the Muslims cease[s].” If Walker was sent back, he was told to threaten to bring contraband literature out of his cell and be sent back to solitary. They reasoned that each time the warden “snatch[ed] an aggressive Muslim out of population, he would send one down from the box and send another one up from population. In other words, he kept manipulating the brothers like monkeys on a string.” Yet Sostre astutely noted that when “the box ceases to work, the entire disciplinary and security system breaks down.” The take-over of solitary confinement was an example of prisoners creatively adapting the methods of prison control as resistance. NOI members filled solitary confinement until the box no longer was an effective form of punishment. Wardens were then faced with the decision of creating hotbeds of activism in segregation or undermining the arbitrary rules they had worked so hard to justify and enforce. 

The prisoners’ strategy of filling solitary confinement mirrored, and in fact predated, the developing civil rights strategy of “Jail, no bail” in the South. …

The prisoners’ strategy of taking over solitary can be traced back to Clinton Prison when the men were reported by the prison officer as discussing the tactics (over a year before the Friendship Nine employed this strategy). While civil rights organizers in the South and prisoners at Attica appropriated forms of state control, Chief Pritchett in Albany was able to mobilize a larger network of police and jails just as wardens at Clinton and Attica Prisons were able to transfer prisoners to other state prisons when their much smaller segregation units became filled with politicized prisoners. Both movements also attempted to garner national attention and press for federal intervention. As Len Holt

of the Congress of Racial Equality explained, “if we go to jail by the hundreds and thousands, the hearts of those who would maintain the old order will be inundated with the guilt necessary to bring about change.” For prisoners at Attica, solitary confinement and the loss of good time were crucial to their claims in state and federal courts. As Sostre wrote: “We have taken over the box and he is anxious to get us out of the box, especially with the big trial coming soon. So don’t let him clean up, for we are living proof of the religious oppression complained of in our writs.” Filling solitary confinement not only

undermined prison security but also built a case for trial and dramatized prisoners’ struggles before the courts and the nation.

But in both cases, appropriation of state repression had unintended consequences. As Berger argues, “mass arrests of political activists provided a dry run for mass incarceration, especially when joined with the economic transformations wrought by mechanization and migration. The civil rights movement gave states an early taste of what it would mean to arrest, prosecute, and imprison large groups of people.” In the case of Muslims at Attica Prison, it coincided with intensified surveillance and monthly reports on the group. Despite their similarities, the “Jail, no bail” strategy has its place in the annals of civil rights history as a heroic confrontation with southern Jim Crow through nonviolent direct action; meanwhile, the take-over of solitary confinement by Muslims at Attica Prison has gone unremarked. At best, the Nation of Islam has been depicted as a reluctant political participant, pulled toward the struggle by Malcolm X. At worst, it is portrayed as an apolitical religious sect that was marginal, or even antithetical, to such movements. Such disparate historical treatments raise important questions about what are seen as legitimate politics, legible activists, and visible sites of resistance in histories of the black freedom movement.”

– Garrett Felber, ““Shades of Mississippi”: The Nation of Islam’s Prison Organizing, the Carceral State, and the Black Freedom Struggle.” The Journal of American History, June 2018. pp. 84-90 

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