Although the men in D Yard had, as Herman Schwartz suggested, written and voted on a revised list of demands prior to the media’s arriving, Barkley concluded his speech by repeating some of the prisoners’ original demands, including safe transit to a “non-imperialist country” and intervention by the federal government to bring the prison under its jurisdiction. When Barkley finished his soliloquy, he received thunderous applause from the crowd of prisoners in the yard.
As Barkley spoke, Oswald and those who had come in with him sat and listened like an audience at a play. Looking at the scores of men surrounding him, Oswald said: “I’ve complied with the several things I said I would do as my part. I saw the three individuals you told me to see; I’ve brought the press and other media in here to listen as we talk. I earlier promised you there would be no reprisals other than what any law enforcement district attorney might take in terms of any crimes that might have been committed. And now, my question is…when will you release the hostages?”31 To that, he heard no affirmative response.
Every man at Attica remembered what had happened at Auburn once the prisoners agreed to give up their hostages and surrender in exchange for a promise of no reprisals: they had been beaten and put into segregation. The men in D Yard reminded Oswald that his solemn assurance that no harm would come to them meant little. Oswald countered by reminding them that he had not been the commissioner when the men at Auburn had ended their protest. “I am a man of my word. If I say I’m going to do it, I’m going to do it!”32 A sea of skeptical faces looked back at him. They doubted that Oswald had the authority to make decisions pertaining to any physical or legal backlash they might suffer after surrendering.
Elation in D Yard (Courtesy of the Associated Press)
Feeling that they were reaching an impasse, Oswald decided to leave the yard. Before escorting him to A Tunnel, however, the prisoners handed him something to think over: their new list of fifteen “practical proposals” that they had prepared in response to Schwartz’s critique:
1. Apply the New York State minimum wage law to all State Institutions. STOP SLAVE LABOR.
2. Allow all New York State prisoners to be politically active, without intimidation or reprisals.
3. Give us true religious freedom.
4. End all censorship of newspaper, magazines, letters, and other publications coming from the publisher.
5. Allow all inmates at their own expense to communicate with anyone they please.
6. When an inmate reaches Conditional Release, given him a full release without parole.
7. Cease administrative resentencing of inmates returned for parole violation.
8. Institute realistic rehabilitation programs for all inmates according to their offense and personal needs.
9. Educate all Correctional Officers to the needs of the inmates, i.e. understanding rather than punishment.
10. Give us a healthy diet, stop feeding us so much pork, and give us some fresh fruit daily.
11. Modernize the inmate educational system.
12. Give us a doctor that will examine and treat all inmates that request treatment.
13. Have an Institutional delegation comprised of one inmate from each company authorized to speak to the Institution Administration, concerning grievances (QUARTERLY).
14. Give us less cell time and more recreational equipment and facilities.
15. Remove inside walls, making one open yard and no more segregation or punishment.33
Though Oswald agreed to consider this new list of demands, he was now the skeptical one. Oswald could see that the demands on this list were quite different from those laid out by Barkley’s fiery speech, which led him to worry that there was no consensus in the yard as to what it would take to end the standoff.
In the administration building that evening, Oswald briefed the prison and law enforcement officials waiting for him and then he called Governor Rockefeller’s attorney, Michael Whiteman, to update him. The commissioner wanted everyone in the governor’s office to have faith in his decision to negotiate with the prisoners, but seeing how suspicious of him the men in D Yard had been had sapped some of his own enthusiasm for the process. As had happened earlier in the year when he dealt with the aftermath of the Auburn rebellion, his feelings of personal affront were slowly morphing into a powerful suspicion that prisoners were not in fact calling “for prison reform” but rather “for revolution and anarchy beginning in the prisons.”34 Whereas Governor Rockefeller believed that “discussions could prove counter-productive” at Attica, Oswald still resisted fully adopting this view.35
Notably, Rockefeller’s lawyers in Albany, Michael Whiteman and Howard Shapiro, did not count on Oswald’s meetings with the prisoners to resolve the crisis at hand and spent the first day of the rebellion at Attica trying to get the governor to weigh in. It had taken until 6:00 p.m. for Whiteman to reach the governor to brief him. Rockefeller instructed Whiteman to continue monitoring the situation and also to keep an eye out for the possibility of outside agitators coming to Attica. Like all of the other uprisings that had taken place recently in his state’s penal facilities, the governor refused to believe that this one was born of the genuine grievances of prisoners on the inside. To prevent further rabblerousing from outside militants, Rockefeller told Whiteman to stay in touch with local law enforcement and to invoke the state’s “emergency powers to cordon the area off.”36 According to Rockefeller attorney Howard Shapiro the State Police had in fact informed him that “a black organization from Buffalo” was “planning to go to Attica,” so he alerted Deputy Commissioner of Corrections Wim Van Eekeren to this news and instructed him to watch this situation closely.37 Shortly afterward Van Eekeren received his own police briefing to the effect that “25 Panthers were en route from Buffalo to Attica.”38 An hour later, Shapiro again called the Department of Corrections, this time to ascertain whether the DOCS would be willing to close all roads leading to the prison should any “outsiders attempt to get near” it.39
Rockefeller’s men were not the only ones interested in monitoring the response of grassroots and civil rights organizations to the Attica uprising. So was the Federal Bureau of Investigation (FBI). In fact, it was remarkable that federal agencies were so involved in what was happening in this one state prison in the middle of rural New York. Immediately, the FBI stepped up its already extensive surveillance of groups suspected to be sympathetic to prisoners and leaned on its informants in New York, Chicago, and San Francisco to gather information on the Attica rebels. Even more astoundingly, whatever intelligence the FBI gathered, credible or not, was then relayed to authorities at the highest levels of the United States government, including President Richard Nixon, Vice President Spiro Agnew, and U.S. Attorney General John Mitchell, as well as the Defense Intelligence Agency, the Department of the Army, the Department of the Air Force, the Naval Investigative Service, the Secret Service, and the National Security Agency.40 The Albany office of the FBI alerted other bureau directors that Rockefeller’s right-hand man, Robert Douglass, also wanted to be kept apprised of any “information bearing on the Attica situation” that they gleaned from their “extremist informants.”41
Troublingly, the various reports disseminated by the FBI were often misleading if not outright inaccurate. In one teletype sent to the director of the Domestic Intelligence Division of the FBI, as well as to the White House and the U.S. attorney general, at 11:58 p.m. on September 9, the Buffalo office reported that during the riot “the whites were reportedly forced into the yard area by the blacks” and Black Power militants there were rounding up not just employee hostages but also all white prisoners, which was misleading in that it suggested a race riot was unfolding.42 More inflammatory still, the FBI’s Buffalo office stated that the prisoners “have threatened to kill one guard for every shot fired [at them]”; that they “have threatened to kill all hostages unless demands are met”; and that all of the hostages “are being made to stand at attention” out in D Yard.43 None of thi
s proved to be the case.
During the tumultuous 1960s and 1970s the FBI was deeply invested in destabilizing and undermining grassroots organizations that it considered a threat to national security—as were the politicians, such as Nixon, Agnew, and Mitchell, who supported its efforts and relied on its briefings.44 One of the FBI’s counterintelligence programs in this period—COINTELPRO—was notorious for using rumor and outright fabrication stories in an attempt to destroy leftist, antiwar, and civil rights groups from within. For this reason Commissioner Oswald’s determination to keep negotiating with the men in D Yard infuriated much of the Bureau. As one internal FBI memo put it, state officials had “capitulated to the unreasonable demands of prisoners.”45 And these weren’t just any criminals; as the FBI noted on multiple occasions, “The majority of the mutinous prisoners are black.”46 As dusk fell over D Yard on the first day of the Attica uprising, FBI and State Police rumors about black prisoners’ threats and outrageous actions only multiplied. But no matter how hostile everyone else was to the idea of the state negotiating with the prisoners, Commissioner Russell Oswald insisted even more forcefully that he was going to see these talks through.
13
Into the Night
As much as Commissioner Russell Oswald wanted his negotiations with the men in D Yard to bring a speedy end to the rebellion that was now making news across the country, he was also determined to get some concessions from those men quickly, lest his superiors pull the plug. When his deputy commissioner, Walter Dunbar, offered to go in to talk to the prisoners, Oswald agreed and, at 7:30 p.m.—still on this first day of the Attica uprising—Dunbar, accompanied by Herman Schwartz, Arthur Eve, and a Republican state assemblyman named James Emery, made a fourth outsider visit into D Yard.
But Deputy Commissioner Dunbar was not the sort of person to win anyone over in a situation as charged as this one. When the prisoners handed him a copy of the same list of demands they had already given Oswald, Dunbar let himself be derailed by his concerns about proposal number two: “Allow all New York State prisoners to be politically active, without intimidation or reprisals.” What, Dunbar asked the men, peering at them over his horn-rimmed glasses, did they mean by politically active? And he proceeded to debate them on the point. But the men soon changed the subject to focus on the issue at the heart of the matter, as far as they were concerned: the rebellion itself and what it would take to end it. They could not release any hostages, let alone surrender, they told Dunbar, if they were not given some sort of guarantee that there would be no reprisals.
As the discussions in D Yard grew increasingly tense, prisoner Jerry Rosenberg suddenly produced a handwritten legal document he’d been working on during the previous hour entitled “Inmates of Attica Prison v. Nelson Rockefeller, Russell Oswald, and Vincent Mancusi.” If a federal judge was willing to sign this, Rosenberg explained, it would act as a court injunction forbidding the state from engaging in any reprisals when the men surrendered. The men in the yard were glad to hear this and soon discussion turned to the question of which judge might be willing to sign this document. The name of Judge Constance Baker Motley kept coming up because she was well known among prisoners as one who had been willing to rule in favor of Martin Sostre, a prisoner who had sued the Department of Corrections for keeping him locked in solitary confinement for a year.1
Herman Schwartz, who had accompanied Dunbar into the yard, jumped in with an offer to get the injunction signed—though not by Judge Motley, as she presided over the Southern District of New York, and thus Attica was not in her jurisdiction. Instead, he suggested approaching Judge John T. Curtin of the Western District. The men liked this idea. Judge Curtin had forced Mancusi to let the Auburn transferees out of HBZ, which suggested he too was a jurist sympathetic to prisoners. This, though, would take time, Schwartz pointed out. Curtin, along with every other New York judge who might help them, was currently in Vermont attending a conference. As he explained these complications, which many of the men viewed as just another delaying tactic, Schwartz was booed. But one prisoner’s voice broke through the denunciations to say that there really was such a conference taking place, he’d read about it in the New York Law Journal. When Schwartz then offered to go to Vermont to try to see Curtin that very night, the men again turned enthusiastic.2
Discussion in the yard now turned to the question of whether the men in C Block were being beaten. Although both Oswald and Arthur Eve had together looked into this and reported that all was fine earlier that evening, the men’s fears had not been allayed. Deputy Commissioner Dunbar could sense that this issue was not going to go away unless they could see the cell block for themselves. He agreed to take three prisoners on a tour of the wing to confirm that their fellow prisoners were okay. Dunbar also agreed, after being pressed hard, to allow a doctor into D Yard. He had to concede that there were people there, prisoners as well as hostages, who needed more professional medical care than the self-appointed caregivers at the medical station could provide. As the men in the yard had made clear to him, it reflected very poorly on state officials that they had not yet allowed a physician to enter the yard.3
At 8:00 p.m. Dunbar left D Yard to update Oswald, while Arthur Eve took Champ, Richard Clark, and a third prisoner on the promised tour of C Block. This was an extremely frightening experience for the trio of prisoners because, as Clark recalled, “You could just feel the hatred of the troopers there…you could look into their eyes and feel the hate and see all the restraint they had to put on themselves to keep from pulling the trigger.”4 Once in C Block, though, they felt the trip had been worth it. The men locked up there were indeed unharmed.
At around 9:00 p.m. after the tour of C Block, Champ, acting in his capacity as jailhouse lawyer, went with Assemblyman Eve to Mancusi’s office to work with Herman Schwartz on finalizing the language of the injunction. After a number of drafts, Champ was finally satisfied that the injunction covered the necessary points. Schwartz called Judge Curtin at his hotel in Manchester, Vermont, to explain what he needed and the judge gave his word that he would sign the injunction as soon as Schwartz arrived. Schwartz persuaded Commissioner Oswald to affix his signature of consent to the document as well, then had a state trooper drive him the twelve miles to the nearest airport, in Batavia.
At 11:30 p.m., while he waited for his flight to leave, Schwartz called Judge Motley to see if she too would sign the injunction. He explained that he had already told the prisoners that Attica was not in her jurisdiction, but they still wanted her endorsement of this document. Despite his rather lengthy plea, Schwartz was unable to persuade Motley to sign the injunction. It was clear to him that “she simply didn’t want to do any irrelevant and idle act.”5 Schwartz felt that Motley’s signature would have been very helpful, even if just symbolically, but he retained hope that having both Curtin’s and Oswald’s endorsement would be enough.
As Schwartz boarded the plane to Vermont to see Judge Curtin, Walter Dunbar was returning to D Yard, this time with a physician, Dr. Warren Hanson. Dr. Hanson, a surgeon at the Wyoming County Community Hospital fifteen miles south of Attica, had responded to the Wyoming county sheriff’s call for physicians to come to the prison in case they were needed. Although Dr. Hanson had been outside Attica for hours, along with several other doctors simply hovering around “the Red Cross stand drinking coffee and eating donuts,” no one had called for medical assistance or bothered to explain anything about the medical situation inside.6 Hanson and other doctors found this incredible given the rumors that were flying around “about the hostages being either dead or seriously wounded.”7
After being given assurance of safe passage by the prisoners in the DMZ, Hanson was assigned a personal security guard who told him, “Doctor, I am responsible for your safety….I don’t want to be holding and pushing you around [so] why don’t you hold my arm and let me kind of lead you, and you just follow me.”8 Once in D Yard, Hanson saw two long lines of prisoners who were wearing white armbands, had linked el
bows, and faced each other. These men had, in effect, formed a secure human tunnel for him to walk through. He was very grateful.9
Hanson met with the leadership group, and then was escorted to the medical station, which consisted of three tables and a chest with some medications and bandages. After being briefed by the prisoners’ medical team, Hanson headed over to the hostage circle. The hostages, who were still surrounded by the security team of Black Muslims, were huddled together in an oval-shaped space, some of them sitting up, others lying down.10 By now the hostages had been blindfolded for almost ten hours and Hanson found them in a state of severe emotional distress. He did his best to try to calm them down, and was “pleased to find that they were in quite good shape.”11 The prisoners had already tried to tend to the hostages, in several cases splinting possible fractures as well as doing some emergency suturing, and while a number of the hostages had various wounds and injuries, none of them were life-threatening.12
Although the prison administration had sent Dr. Hanson in to check on the health of the hostages, when the leaders in D Yard asked him to look at the prisoners who were also in need of care, he readily agreed. Returning to the medical station, he held a sick call attended by approximately twenty-five to thirty men. Some had been injured during the takeover, but others sought his help for long-standing problems. As Richard Clark explained, “We had sick prisoners who had never received any medical attention in Attica.”13 In need of more supplies, Hanson asked permission to send prisoner Tiny Swift out of D Yard to get medicine and splints. Swift had been sent to Attica on a life sentence for murder, but Hanson found him to be a dedicated caregiver in this stressful situation. Hanson was in fact so impressed with Swift’s dedication to patient care that when he returned with the supplies, the doctor decided to give him some additional on-the-spot medical training so that he could do more good once Hanson left.14
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