Although Dee was fairly certain that she wanted Judge Telesca to oversee the way in which the newly awarded $12 million would be dispersed to the FVOA families, she still had some reservations that would have to be addressed. As she explained it, “I had to go see him….Even though Frank Smith thinks he is great I wanted to make sure I thought so too—I wanted to make sure he wasn’t biased.”6 When she saw that he had on his desk a heart-wrenching picture of one prisoner helping another, as a trooper looked coldly on, she believed that she had found the right man. As she explained, “His pics in his office spoke volumes. That pic did it for me.”7
Still, Dee Miller wanted to let the judge know how the FVOA’s situation, while similar to that of the prisoners, was not the same. In her view, the dispersal of funds in the hostages’ case shouldn’t give more to those who had suffered the most physically or even psychologically, as in the prisoner settlement, but in her opinion those families whose men had been killed should receive the highest awards. By 2004 there were so few widows left, she argued, that they should get the most. Needless to say, this was a controversial position to take in the eyes of some of the FVOA members since some, such as Michael Smith, had endured a lifetime of suffering from the wounds received during the retaking. But Dee Quinn Miller was pleased that Judge Telesca at least listened to her point of view and she left her meeting with him feeling that he would be fair and objective.8
Miller had to persuade her fellow members of the FVOA that Judge Telesca should be the one to decide who got what in their settlement with the state. The subject of giving Telesca this task had come up on several occasions at various FVOA meetings already and it had been clear that there was some dissent. At one such meeting held five months before the settlement was announced, Gary Horton broached this subject and had gotten a hostile reception.9 Twenty-nine members had come to this particular meeting and many were uncomfortable when Horton prefaced his remarks that evening by stating that the FVOA members and former Attica prisoner Frank Smith had been on a “common quest for justice.”10 Judge Telesca, who had so clearly helped Frank Smith in his cause, Horton went on, might be a good ally to the FVOA as well. The gathering grew quiet. Some were on board, but others, including former hostages G. B. Smith and Gary Walker, were not. So when this issue was on the table for real in 2005, Miller knew that she had a lot of work to do to build consensus in the group for working with Telesca. Over the next weeks, and over many cups of coffee and lengthy phone calls, she was able to get everyone on board.
When the FVOA announced that it wanted Judge Telesca to apportion their settlement, one of the most conservative members of the Attica Task Force, State Senator Dale Volker, refused to allow him to do so. In Volker’s view the FVOA should have no say whatsoever in who would get to apportion the state funds. Undaunted, the FVOA asked its lobbyist, Artie Malkin, to get involved. From him, though, they learned of another roadblock: the governor intended to appoint someone to do this job. Still, though, the FVOA members persisted. For days they met with the governor’s lawyer and argued passionately for Telesca to distribute the funds. He was the best choice, they argued, because he had no learning curve. He understood the ins and outs of the Attica retaking and its fallout better than anyone else the governor might appoint. Ultimately, the state agreed to establish the Attica State Employee Victims’ Fund, and the governor accepted the FVOA’s request to have Telesca handle the settlement. On May 2, 2005, Pataki made that appointment official.
Judge Telesca was grateful to be given this opportunity. In 2003, Big Black had been diagnosed with cancer and had grown increasingly ill, and since then the judge had spent a great deal of time talking with him on the phone. In those conversations Black had expressed his hope that the former hostages and hostage families would also get some justice from the state and he felt that Judge Telesca should be the one to help them get it. He had told the judge, “Take care of the families of Attica prison employees….They are good people, they have had their pain too.”11 And so, if the FVOA was willing to agree to binding arbitration, Telesca decided, then he would do the apportionment.12
Notably, there were certain matters over which Telesca had no control that had been decided in the governor’s office. To ease the burden on the state budget, the settlement would be paid out over six years. What is more, the deferred payments would not accumulate interest. Also, although it was stipulated that the settlement would be paid out at some point between September and March of each year, no promises of exactly when were made.13 In a bit of good news, the settlement funds would not be taxed.14
Before getting down to business, Judge Telesca first held several meetings with Dee Quinn Miller, Gary Horton, and Mike Smith, as representatives of the FVOA, to make sure he understood what sort of apportionment they had all been imagining. As they spoke he took notes and he couldn’t help but notice that there were still some real differences regarding which FOVA members deserved the highest awards. As Dee recalled, “The Judge picked up on it…the tensions between me and Mike.”15 Telesca already knew that Dee believed the widows deserved the most money, but Mike Smith argued that they, while profoundly scarred, had not necessarily suffered the most trauma. There was also the thorny question of where the death of William Quinn, Miller’s father, fit into all of this. After all, he had not been killed by the state although, in Miller’s view, there was no question that, ultimately, he too had died because of state negligence—ironically the same point that attorney William Kunstler had tried to make in front of the jury deciding his client John Hill’s fate back in 1975.16
To help work through these differences of opinion between FVOA members, Telesca decided to meet with the entire FVOA group on June 13, 2005, in order to get a sense of what everyone else thought should happen. As he had with the former prisoners, he invited them to tell their stories on the record. He made clear that he would also read the Attica Task Force testimony and, if members wanted to, they could tell their stories to him privately and such testimony could be sealed.17 He instructed every family member to get all of their relevant documentation to him by June 15 so he could begin holding anywhere from four to six days of testimony. His goal was to have the entire matter settled by August 1 to meet the state comptroller’s deadline for processing payments. There were now a total of 150 people claiming a piece of this settlement, including, ironically, Lieutenant Joseph Christian, whose rescue mission near the hostage circle on September 13, 1971, had, according to both the McKay Commission report and Malcolm Bell’s whistle-blower report, led so tragically to many of the hostages being shot to death by troopers firing from up on the catwalk.18
On July 3 Judge Michael Telesca issued his long-awaited order, amended and finalized on July 12, 2005.19 As this order explained clearly, there were three groups of eligible claimants. There were the families of those correction officers or state civilian employees who died in the course of the Attica retaking—and this was important wording because, by not specifying how they died, it meant that William Quinn could be included in this group.20 Then there were current or former correction officers or state civilian employees who were “physically attacked, held hostage, or detained by inmates during the riot…even if released prior to the retaking of the prison by state forces,” or their heirs if they had since died.21 Finally, there were current or former correction officers or state civilian employees who had been employed at Attica during the retaking, or any current or former New York State Police employees, who were “shot during the retaking of Attica Correctional Facility by state forces on September 13, 1971,” or their heirs if they had since died.22
Once Telesca had determined these three groups, he then divided them into six subclasses.23 There was Category One ($550,000), which included William Quinn and Harrison William Whalen—also described as “those persons who died as a result of injuries inflicted by inmates, [as well as] those persons who were mortally wounded during the retaking on September 13, 1971, and who suffered conscious pain and suffering for
a period of 20 or more days.”24 There was Category Two ($500,000), which included hostages Edward Cunningham, John D’Arcangelo, Elmer Hardie, Richard Lewis, John Monteleone, Carl Valone, Elon Werner, and Ronald Werner—also described as “all persons who were either killed instantly during the retaking on September 13, 1971 or died no more than 19 days thereafter from those injuries.”25 Category Three ($380,000) covered former hostages like Michael Smith—“those persons who were severely, but not fatally wounded, as a result of injuries sustained during the retaking on September 13, 1971. For purposes of this subclass, a ‘severe’ injury is one that required hospitalization for 20 or more consecutive days during the period between September 13 and December 13, 1971, or which resulted in brain damage.”26 Category Four ($225,000) was designated for “those persons who were taken hostage for at least some period during September 9 through September 13, 1971, or persons who participated in the retaking of Attica Prison and who, as a result of beatings received from inmates or injuries sustained from gunfire, received permanent physical injuries that resulted in a complete or partial physical disability.” Category Five ($150,000) included “those persons who were taken hostage for at least some period during September 9 through September 13, 1971 and who received significant injuries as a result of gunfire or beatings received from inmates.”27 Finally, Category Six ($100,000) covered “all remaining persons who were held hostage for any period of time during the riot.”28
In this order, as he had done in the prisoners’ order, Telesca also included extensive narrative evidence of the Attica victims as well as that of disinterested parties who could corroborate their testimony—everyone from prisoners to members of law enforcement who had participated in the assault. Telesca had been particularly moved by what he had heard from a former sheriff’s deputy from Niagara County who was there on the morning of the retaking. “He was very emotional in describing the shooting that took place and how ‘unnecessary it was.’ He had trained officers in riot control as a deputy and was a former Marine MP and felt that there was no need to use bullets. Tear gas would have been sufficient to subdue the inmates.”29 Indeed, quite a few men had taken the time to offer corroborating testimony even though they personally “could not share in the settlement fund.”30 And Telesca was glad that so many had, finally, spoken up. As he said in the concluding paragraph of his order, “Hopefully, the survivors and their families of the Attica riots of 1971 will no longer feel ‘forgotten’ and that those who suffered and continue to suffer will feel some measure of comfort at least from the fact, that the matter is concluded and some measure of justice was served.”31
Some measure of justice was the best, perhaps, that anyone could have hoped for after almost thirty-five years. As former hostage Ron Kozlowski explained it to reporter Gary Craig, “It doesn’t really fulfill what you went through,” he said. But, he added, “It’s better than nothing.”32 Others, such as FVOA attorney Gary Horton, were also pragmatic about where the FVOA had finally ended up. “I’m not sure what true justice could be in this situation. We’re happy we reached this point. Personally, it’s further than I thought we’d be able to reach.”33 And, as Mike Smith put it, “I don’t know if this is justice…but this is as close as we’re going to get.”34
To Dee Quinn Miller and to Michael Smith in particular, however, this victory ultimately felt hollow. The fact was that, despite now agreeing to pay out a total of $24 million to the scores of people it had traumatized and to some of the lawyers who had represented them, the state of New York still had not admitted wrongdoing. There was no admission of responsibility, let alone an apology to any prisoner or hostage who had suffered the retaking. The state had managed to keep the survivors of its horrific retaking from knowing the details of that plan and of that day by refusing to bring all of its documents into the public eye as the FVOA had demanded. So many people continued to be protected by keeping these files closed to the public.
The inscription on the memorial reads, “In memory of the employees who gave their lives in the riot of September 9–13, 1971,” February 2015. (Courtesy of The New York Times)
As Dee Quinn Miller knew after meeting so many Attica survivors since the FVOA first began its journey, opening the records would not, in itself, bring peace to the victims. Actually, what they learned could well shatter lives in altogether new ways. She wondered if this was particularly true of some of the children of slain hostages she had gotten to know. She worried that some of them might not react at all well, say, to learning who had actually killed their dads.35 This shouldn’t have been the state’s call, however. It was wrong that state officials had decided to protect those who had committed crimes at its behest. It was immoral that it was still covering up what actually had happened on its request.
Until the full truth about what had happened at Attica was told, thought Miller, this moment in history would still haunt all of its victims.
EPILOGUE
Prisons and Power
By 2011, when I found myself staring down at the collected materials that littered the warehouse floor of the New York State Museum, many former Attica prisoners and former Attica hostages, as well as Attica’s observers, lawyers, and state officials, had already passed away. Former Attica prisoner Frank “Big Black” Smith lost a grueling battle with cancer in 2004. Former head of the Attica investigation Judge Robert Fischer died in 2005. In 2009, Judge John Elfvin passed away, and by 2012 former Attica observer Tom Wicker, former Attica superintendent Vincent Mancusi, and former Attica hostage Gary Walker had died. In 2016, as this book was going to press, former Attica prisoner Richard X Clark and lawyer Elizabeth Fink passed away.
But even though so many of Attica’s participants and witnesses are no longer here, this historic moment has not faded into obscurity. In these pages, their history lives on. They made Attica matter.
However, Attica’s legacy—what this moment meant for the history of the United States—remains deeply contested.
Given the brutal way in which the Rockefeller administration ended the Attica rebellion, and in light of the support they received from the president of the United States, readers might be surprised that Attica’s immediate impact was to spark some serious reforms of the American criminal justice system. Less than a week after the retaking, the 340 members of New York’s Democratic State Committee, including top party politicians such as New York mayor John Lindsay, met on September 19, 1971, at the Hotel Syracuse and called for the immediate implementation of the central demands that had been made during the Attica uprising including greater religious and political freedom, banning censorship of mail and newspapers, and providing more counseling and additional rehabilitation services.1
Similar rumblings could be heard in the halls of the New York State Legislature, even before the Jones Committee (the special state panel that had been convened right after Attica to study penal institutions) released its January 1973 report on how to improve prisons.2 During the 1972 legislative session, the Rockefeller administration, supported by legislators from both parties, was actually proposing various prison reforms, including that prisoners should be allowed to leave prison for a week of educational or vocational training; that they should be permitted temporary leaves from prison for events such as family funerals; and that they be allowed to secure medical care for themselves if the treatment they needed was unavailable at their facility.3 All also seemed to agree that year that prisoners who had been imprisoned for “comparable crimes” should all be eligible for parole “in roughly the same amount of time.”4
The upshot of these various proposals and recommendations—which stemmed in no small part from community groups across the state levying enormous pressure on their legislators—was that “over 150 prison reform bills were introduced in the legislature during the 1972 legislative session and eight were passed. The most important of these included the governor’s $12 million package of new funds.”5 Not only did prison reform have some real support in the New York State Legislatur
e’s 1972 session, but when Governor Rockefeller proposed his budget for 1973, he “exempted the Department of Correctional Services from expenditure restrictions placed on all other state agencies” so that the prison reforms could be funded.
Attica even seemed to positively impact discussions taking place at the federal level. On the floors of Congress, the Pepper Commission, headed by Democrat Claude Pepper, suggested that serious prison reform bills needed to be considered in the wake of what Attica had revealed about the state of America’s penal facilities; and Republican senators from New York such as Jacob Javits were also being pressured to bring about real changes in the way that the state’s prisons were run. As one constituent wrote to one of Javits’s right-hand men, “One Positive Step might be to tie all future LEAA [Law Enforcement Assistance Administration] grants to state and local authorities to an acceptance and implementation by the latter of the reforms contained in the ‘28 Attica demands.’ ”6
While many scholars and pundits have considered the 1960s the heyday of prisoner rights, and the 1970s the decade of unmitigated backlash, the decade immediately after the Attica rebellion saw vital victories for prisoners across the country in general and at Attica in particular.7 In the years that followed the uprising, most of the practical proposals the Attica Brothers had fought for were in fact implemented across their state. Right after the rebellion, the Department of Correctional Services requested nearly $2.7 million for the “inauguration of Department-wide inmate food service and clothing programs” that would “permit the Department, for the first time, to provide a nutritious diet to all offenders confined in Correctional Facilities.”8 The department also “asked for nearly $400,000 for the purpose of recruiting and assisting minority group candidates in joining the Department of Correctional Services,” and received a grant “to expand day and evening academic/vocational training in selected New York facilities.”9 These requests were important, as was the continuous pressure that the Attica prisoners themselves put on their own administrators to make good on the various promises that had been made. Within a year of the uprising, The New York Times reported that reforms had been implemented regarding “clothing, food, visiting privileges, mail censorship, and the number of showers permitted.”10
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