Seventeen Years and Counting
A History of the Indefinite Detention of Cuban Immigrants
San Francisco, California
On 20 November 1987, the United States announced the reactivation of its 1984 immigration accord with Cuba. Negotiated in the wake of the two countries' confrontation in Grenada the previous year, this agreement had facilitated the return of 201 Mariel Cubans detained in U.S prisons, 73 of whom were immediately re-imprisoned upon arrival. It was suspended by Fidel Castro in May 1985, in response to Ronald Reagan's anti-communist Radio Marti broadcasts, aimed directly at Cuba. The reopening of immigration relations between the two nations in 1987 signaled the imminent deportation of 2,563 excludable Cubans, who were being held in prisons and detention centers scattered across the U.S.
Faced with the threat of deportation, in addition to feeling forgotten and abandoned by society, the roughly 2,400 Cubans held at the U.S. Federal Detention Center in Oakdale, Louisiana and the Federal Penitentiary in Atlanta rioted. They took a combined total of some 130 hostages and set massively destructive fires in both complexes. After almost two weeks of intense drama and failed negotiations, with the mediation of Bishop Agustín Roman, the Oakdale and Atlanta Cubans surrendered separately. Both groups of Cubans accepted the government's initial proposal: in exchange for their surrender and the safe release of all hostages, they would not be held financially responsible for damage caused during the riots, and each detainee would gain an indefinite moratorium on his repatriation to Cuba and a "full, fair, and equitable review" of his case.
In November 1997, ten years later, more than 1,000 of the original passengers of the 1980 Freedom Flotilla remain in federal, state, county, and private detention facilities contracted by addition to the Mariel detainees, a growing number of other Cuban immigrants of varying status, are being re-detained by the INS after serving sentences for excludable/ deportable criminal offenses. They are likewise warehoused in INS detention centers and contracted public and private prisons indefinitely awaiting deportation.
During the late 1970s, Cuba's economy suffered a decline which resulted in widespread under- and unemployment and a severe rationing of basic food products. In addition to Castro's sending of thousands of troops and civilians to aid African revolutions, which proved to be a significant drain on the economy, a combination of natural and man-made disasters attacked Cuba's sugar, coffee, and tobacco crops, and its pork and fishing production. These factors combined with a relatively large pool of educated youth and women looking for work resulted in extreme economic hardship and discontent. In early 1979, 115,000 Cubans from Miami visited friends and family in Cuba, bringing with them dollars, gifts, and tales of prosperity. In contrast, in December of that year, Castro promised his people more years of hardship and sacrifice ahead, and combined this promise with a fierce crackdown on all sorts of "anti-social" behavior. Between April and October of 1980, a total of 146,965 Cubans accepted his offer to leave the country through the port of Mariel, just west of Havana, 120,737 of whom headed for the United States. For his part, U.S. President Jimmy Carter welcomed these refugees "with an open heart and open arms."
Quickly, however, the establishment appeared to have second thoughts. Within a few weeks of the first arrivals, INS officials at Key West, Florida began to notice Cubans "more hardened and rougher in appearance." Rumors quickly spread that Castro had emptied his prisons and insane asylums directly onto boats waiting in the port of Mariel, to be sent to the U.S. along with the waves of migrants. Castro replied that there was no such policy, that the refugees in general were merely anti-government and "anti-social lumpen," and that the only mentally ill people transported in the boatlift had been requested by family members already living in the U.S. The INS's own receiving and screening process in its relocation camps eventually determined that 350 of the original 120,737 entrants admitted to having criminal records in Cuba, often stemming from the conditions which had prompted them to leave. These entrants were retained in custody, where some remain today.
Despite these facts, the number and variety of criminal histories assigned to the Marielitos as a group continued to increase in the rhetoric of U.S. government officials and the media alike. The trend which was apparently set in motion by some INS officers' casual comments at Key West in early May of 1980 gathered momentum as popular periodicals such as Newsweek, U.S. News and World Report, and People published characterizations- frequently quotes from government officials- of the Mariel Cubans replete with such terms as "hardened," "convict," "murderer," "rapist," "prostitute," "homosexual," and "scum," in varying percentages. Thus began the crusade that Indiana State University criminologist Mark Hamm refers to in his 1995 book on the Mariel Cubans, "The Abandoned Ones: The Imprisonment and Uprising of the Mariel Boat People". He argues that the criminalization of the Marielitos occurred at least in part through the words and actions of "over-eager warriors," agents of the state, members of society, and the media.
More than ninety percent of those who arrived in the United States in the Mariel boatlift of 1980 passed through the INS relocation camps and into US society to lead inconspicuous and productive lives. The remainder for various reasons became entangled in a nightmarish web woven by the U.S. Department of Justice in the name of protecting society from the supposedly dangerous wave of immigrants it had so recently welcomed. The criminalization of this subset of Mariel Cubans can be said to have started in Cuba, where 350 told INS screeners in relocation camps they had done time, often for petty thief and "anti-social crimes" during the recent economic crisis. Not only did this admission mean these individuals were denied immigration parole and transferred directly to detention facilities across the U.S., but it contributed to a more general stigma attached to the word "Marielito," lending the slightest validity to rampant rumors in the media. A second group consisted of those who violated their immigration parole by virtue of their own disadvantage, for example by not having a community sponsor or having the funds to afford a medical bill, or in some other way threatening to become a burden to society. These Cubans were re-detained by the INS and likewise scattered across the country.
A third group was made up of those who ran afoul of the law once they had been paroled into the United States, with infractions such as traffic violations or possession of small amounts of cocaine, as well as more serious crimes. The Marielitos of this final group were often advised by public defenders to enter pleas of guilty or no contest to charges for which the prosecution may have had little evidence, or of which they claimed innocence, in order to gain lighter sentences. After completing these sentences, generally short terms of probation or jail time, these Cubans, whom Hamm calls "the doubly punished," were immediately re-detained by the INS to serve a second, and sometimes a third, indefinite sentence.
Since their arrival in 1980, these Mariel Cubans have been denied several basic rights enshrined in the U.S. Constitution and the Universal Declaration of Human Rights, to which the U.S. is a signatory. Included in this list are the right to due process, to be imprisoned only once for a given crime, to be free from arbitrary detention, and to be free from cruel, inhuman, and degrading treatment. These violations have been possible, and in fact have been defended by various U.S. Circuit Courts and the U.S. Supreme Court, because upon their arrival here Marielitos were classified as "excludable aliens." This meant in effect that they were considered never to have arrived in the U.S., but to have been stopped at the border. Thus the immigration parole which allowed them to establish residence and work in this country was a concession granted by the INS, to be revoked at its will. Once this parole was revoked, the Mariel Cubans, and other immigrants and refugees lacking necessary entry documentation who are generally given this designation, ceased to exist for all legal purposes.
This "entry fiction" was first articulated by the U.S. Supreme Court in Shaughnessy v. U.S. ex rel Mezei in 1953 and codified by statute in 1988. The supreme court decisions in and Jean v. Nelson in 1985 have been the basis for the court system's adherence to the principle that an "unadmitted" alien has no constitutional rights, and that parole is granted purely at the discretion of the attorney general. Certain circuit court decisions have been more explicit, as for example Perez-Perez v. Hanbury, 1986, in the 11th Circuit, which stated further that past convictions for which sentences have already been served are legitimate reasons for continued detention by the INS. The 10th Circuit alone expressed concern in Rodriguez-Fernandez v. Wilkinson, 1981, that "the concept that human beings should be free from arbitrary imprisonment" was a fundamental aspect of international law that was potentially violated by the U.S.'s continued detention of excludable aliens. Subsequent decisions in the 4th and 11th Districts explicitly rejected the characterization of their detention as "arbitrary." In a more recent decision, Barrera-Echevarria v. Rison, 1995, the 9th Circuit determined that the plaintiff had no right to parole even if the only alternative was prolonged detention, and that in any case, the detention was not indefinite, but a one year term with a review at the end.
In February 1986 Representative Robert W. Kastenmeier of Wisconsin, Chair of the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice, led an investigation into the situation of the Mariel Cubans held at the Atlanta Penitentiary. Based on a varied list of specific observations, the final report concluded that "our country has failed to meet any minimal standard of decency in our treatment of the Cuban detainees at Atlanta." The report covered issues faced by staff at Atlanta, the nature and conditions of the Cubans' detention, and issues of medical attention and prison violence. The Subcommittee report mentioned specifically, for example, that the Atlanta staff had the highest rates of turnover, sick leave, and disciplinary actions taken against them in the Bureau of Prisons system. In addition, since some disturbances which occurred in 1984, the entire staff was working mandatory twelve hour shifts.
For their part, the Marielitos faced conditions that included severe overcrowding in inadequately accommodated cells and a notoriously dilapidated prison, as well as 23 hour lockdown in some cell houses. A significant percentage of the detainees had been diagnosed with some sort of mental or physical illness but was not receiving adequate medical attention. Violence was identified as a serious problem. In addition to above-average rates of inmate-on-inmate and inmate-on-staff assaults, and several incidents of mistreatment and death in custody, the Atlanta Cuban population distinguished itself with its several suicides, 158 serious suicide attempts, and over two thousand incidents of self-mutilation. This statistic was perhaps the most shocking and indicative of the extent of their absolutely dehumanizing and desperate situation. On the other hand, not one of the 1,869 Mariel Cubans detained in Atlanta at the time of the investigation was serving a criminal sentence; they had all either never been convicted of a crime or had already finished serving their time, and were being held indefinitely. Based on its findings, the Subcommittee recommended the design and implementation of a review plan that would grant parole to those Marielitos who were not a danger to society.
In May 1996, the American Civil Liberties Union filed and appeal with the United Nations charging that the U.S.'s indefinite detention of the Cubans amounted to cruel, inhuman, and degrading treatment. At this point, influenced in part by these official actions, as well as media sympathy and public support, the INS implemented Kastenmeier's recommendation, and on 22 June 1987 the Cuban Review Plan was put in place. Based on an individual's past criminal record, disciplinary actions and program participation while in detention, psychological evaluations conducted by INS and BOP personel, and any other relevant information, a two-person panel of INS employees would make a recommendation. The final decision would come from Washington DC within 30 days. Similarly, as part of the agreement between Attorney General Meese and the Cubans who rioted in Atlanta and Oakdale in November 1987, the Cubans were again promised a "full, fair, and equitable review" of each of their cases for parole. However, the fullness, fairness, and equity of this process has been called into question repeatedly over the past ten years by community advocates, pro bono lawyers, and members of university programs involved in supporting the Mariel Cubans in this, their first and only avenue for due process.
Charles Weisselberg, Clinical Professor of Law at the University of Southern California and director of one such program, outlined several basic problems with the process which have been reiterated by representatives across the country. The basic focus of these criticisms is the lack of due process. This is directly related to what he calls the "informality" of the review process, demonstrated most obviously by the fact that the detainee's panel meeting is called an "interview" rather than a "hearing." In this context, there is no opportunity for the detainee or his representative to present evidence or witnesses to counter information in the detainee's file. In fact, due to this and the fact that the INS panel generally consists of parties who are neither independent nor accustomed to being critical of the information in police reports or prison records, a detainee who objects to accusations made by the panel is frequently considered uncooperative or unwilling to accept responsibility, both of which will weigh against him in the panel's final recommendation.
Further, the burden of proof lies with the detainee to convince panel members that he will definitely not violate any terms of his parole, which would include any minor infraction of the law. As Weisselberg points out, while not condoning shoplifting or petty theft, the mere possibility of committing one of these crimes should not be sufficient to justify indefinite incarceration. Difficulties experienced by volunteer representatives in accessing both complete files and the detainees themselves in advance of the interview is perhaps another product of the process's informality. For example, Weisselberg describes how in 1996, though arrangements were made between his program and the INS liaison officer at Lompoc Penitentiary far in advance to access the detainees' files and allow students to meet briefly with their clients, upon their arrival at Lompoc, the students were told they would be unable to interview the detainees "due to staffing reasons." Under the parole review plan, detainees are not entitled to representation, so that if they are unable to contact a representative who is trained in criminal law, they may be accompanied by a volunteer, friend, or relative who will not be much help to them in terms of presenting a good case for parole within the constraints of the process (a difficult task even for those with relevant training), or no one at all.
A San Antonio, Texas attorney who has represented Mariel Cubans in several parole review interviews, Carmen Rumbault says that in her experience INS panel members generally seemed sympathetic. However, she concurred with Weisselberg's further criticism that the final parole decisions were made by people who neither met with the detainees nor were familiar with the communities into which they could potentially be released. As a result, one client of hers had positive panel recommendations for four years in a row before parole was finally approved in Washington. After the immense hurdles involved in securing approval for parole from DC, detainees can expect to wait from one to several years before release into some sort of rehabilitation program. Mariel Cubans are so familiar with this routine that they have a term for it: "pocket freedom." Jane Dillard, the Cuban Officer at Bastrop County Jail in Texas, says the jail continues to hold in custody one "grandpa" who has been approved for release for several years, but has nowhere to go.
This points to a problem faced by Mariel Cuban detainees both in securing legal representation and community sponsors. Rumbault points out that in order to get around certain state laws that require inmates who will be incarcerated for extended periods of time to be held in federal penitentiaries, where the conditions tend to be better and the contracting price higher, the INS frequently shuffles its detainees around among state and county jails without notice and of course without forwarding their mail. This, along with the "administrative segregation" they are often held in, makes it next to impossible for detainees to become familiar or establish relationships with people in their in the communities where they are incarcerated, incidentally often not where they have made their homes. Likewise, it becomes even more difficult to keep in touch with friends and family in this country and Cuba, a condition which is crucial to an individual's chances to gain parole as well as his emotional well-being. All these problems seem to stem from the precarious nature of the Mariel Cubans' situation, similar to that of many immigrants and refugees who come to this country, and demonstrate the bizarre attitude that the U.S. is granting them a favor by installing this token mechanism for due process, rather than simply recognizing their rights as human beings.
Meanwhile, another group of indefinite detainees is threatening to outnumber, if it has not already, the 1000-plus Mariel Cubans who remain in INS custody. Significant numbers of Cubans have entered the United States in subsequent years without the necessary documentation, as for example the 5163 balseros that arrived between January and August 1994, classifying them as excludable. In addition, there are nationals of other countries such as Vietnam, with whom the U.S. does not have normalized immigration relations. Accumulating criminal convictions which violated their immigration parole- of they were ever granted it- and unable to be returned to their countries of origin, they are stuck in the same legal no-man's-land. These people, and perhaps particularly the Cubans, suffer from the same general discrimination and detention conditions as the Marielitos, without the minimal recourse of annual parole review interviews.
The inclusion of these individuals in a similar process at the very least seems to be a necessary starting point, considering the 5th Circuit's assertion in Gisbert v. Attorney General in 1993 that excludable aliens who could not be deported could remain in detention as long as the attorney general had instituted measures to review each alien's case, and the 9th Circuit's statement in Barrera-Echeverría that the Mariel Cubans' detention was not indefinite, since it was reviewed every year. As Weisselberg and others suggest, however, the Cuban Review Plan itself needs revision if it is to live up to Meese's promise of a "full, fair, and equitable review" for each detainee. This revision should be focused on bringing the "interview" closer to normal legal standards, including providing a more formal process, full access to detainees' files, better qualified decision-makers, and a better balance of the burden of proof. Further, as Weisselberg points out, rather than spending some $25,000 each year on detaining an individual who may be of minimal risk to society, a much smaller investment might be made in providing him an adequate defense and rehabilitation if he gains parole.
Another important consideration is the possibility of the renegotiation of some sort of immigration accord between the United States and Cuba. In 1984, when an agreement was reached and the INS quickly moved to deport 201 Marielitos, some of whom had court challenges to their deportations pending, Atlanta District Judge Charles Moye reacted by ordering that the Cubans be kept off deportation planes until they received fair hearings. This move was quickly overridden by the 11th Circuit. Amnesty International called for the review of each individual's case before deportation, concerned that some of the deportees might face persecution upon return to Cuba. In 1987, Mariel detainees rioted in reaction to the news of the imminent deportation of 2563 of their number, and won an indefinite hold on their deportation. Just as it prefers to ignore the injustice done by maintaining thousands of immigrants indefinitely incarcerated, twice in the past, the U.S. has clearly not taken into account the implications to individual Cubans of returning them to their country of origin. This, too, must be addressed.
The U.S. treatment of these Cubans, Vietnamese, and other immigrants is symptomatic of a government unaccustomed to taking into account the consequences of its policy decisions on individual human beings, whether they are citizens, residents, or prospective immigrants. Because it chooses not to take responsibility for its policies, it does not even find it necessary to negotiated their inherent contradictions. For example, despite the fact that they have lived, worked, paid taxes, and/ or been held in U.S. prisons for seventeen years- at the very real cost of and average of some $40/person/day to U.S. taxpayers- U.S. policy denies the fact that Mariel Cubans are here. Despite the fact that court decisions say parole is meant to be the exception, not the rule, and to be granted at the discretion of the attorney general- who never sees the detainees- court decisions also insist it is granted according to specific criteria. Despite the fact that parole is meant to be the exception, not the rule, and despite the fact that Judge Robert S. Vance of the 11th Circuit was widely quoted as telling an attorney for the Cubans that "the [U.S.] government can keep them in the Atlanta pen until they die," detention cannot be considered indefinite because each year Mariel Cubans have the opportunity to present their case for parole and appeal to the discretion of these authorities.
Perhaps most brutally ironic (and most commonplace), despite his vehement campaign during the mid-1980s to discredit the human rights situation in Cuba to the U.S. public, the international community, and the Cubans themselves- and during precisely the same era- Reagan and his administration presided over the U.S. Federal Penitentiary at Atlanta, where staff were facing increasingly stressful and inhumane working conditions and the Mariel Cubans' desperate campaign for justice involved more than two thousand serious incidents of self-mutilation, 158 serious suicide attempts, in addition to other elevated levels of prison violence. This degree of denial really borders on the absurd.
People who are concerned with the continuing- and growing- problem of indefinite detention of Cubans and other nationals should contact the Coalition to Support Cuban Detainees in Miami, Florida. Extremely active in litigating and educating the public in support of the Mariel detainees throughout the 1980s, the Coalition has recently established a new office, from which it plans to provide support for detainees all over the U.S. in terms of preparation and legal representation for their parole review interviews, and facilitating their transitions into community programs and life on the outside. In addition, it will work to establish a network of organizations across the country working on this and similar issues to provide this support and increase public awareness of this issue.
Coalition to Support Cuban Detainees, 807 SW 27th Ave., Suite 301D, Miami, FL 33133. Phone: (305 )541-6060 . Fax: (305 ) 541-0210.
Sarah Town lives in the San Francisco Bay area and worked on the subject of indefinite detention while an intern at the National Refugee Office of Amnesty International USA.
|Published in In Motion Magazine December 7, 1997.
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