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In Cuban Prisons’: An Exchange

To The Editors:

In his account of the human rights situation in Cuba “In Cuban Prisons,” NYR, June 30]; Aryeh Neier presents a very unbalanced report which distorts the present situation in Cuba and overlooks a process of reform which began in the 1960’s. Further, in straining to draw negative conclusions from some of the positive aspects of Cuba’s prison system, Mr. Neier makes both factual errors and contradicts his own factual findings.

Mr. Neier first visited Cuba as a participant in a delegation sponsored by the Institute for Policy Studies. The IPS delegation was not, however, the first to visit Cuba’s prisons although it may have had access to some not visited before. I first visited two Cuban prisons in 1984 and have visited others since. A number of other lawyers have visited Cuba’s prisons. The Washington based Human Rights Project began a series of visits to numerous prisons in Cuba in the fall of 1987, the International Association Against Torture made visits in December, 1987, and the National Lawyers Guild undertook a study of criminal justice in Cuba in June, 1987, Every published report by these visitors states that allegations of torture, arbitrary executions and disappearances are unfounded. Even the IPS delegation found no evidence to sustain such allegations. Yet, the best Mr. Neier can conclude is that he doubts that most such charges can be sustained.

A significant defect in Mr. Neier’s report is his denial of historical fact and context. Although Mr. Neier does describe significant reforms which are taking place in Cuban prisons, he insists that such reforms only came about as a result of United States pressure and, rather immodestly, his own visit to Cuba. In doing so, he ignores important internal changes in Cuba which began years before Mr. Neier set foot on the island and before Armando Valladares was released from prison in 1984.

Reform of the criminal justice system in Cuba began in the 1960’s and has continued to the present. By the mid-1960’s the armed insurgency had been defeated. As a result many fewer people were imprisoned for counter-revolutionary activity and the infamous UMAP work camps were closed. In 1973, the Revolutionary Tribunals which had been administered by the military to try political offenders were abolished and replaced by a unified court system under civilian control. Also in 1973, Cuba adopted a new Code of Criminal Procedure.

Cuba’s criminal justice system is based on the civil law investigatorial system of Spain and, thus, very different from the Anglo-American adversarial system. (Mr. Neier criticizes its non-adversarial character as a violation of human rights. Yet, the investigatorial system exists in most European and Latin American countries.)

Revolutionary Cuba continued to enforce with some modifications the Spanish Social Defense Code of 1896 which was still in effect in 1959. In 1979, the government adopted a new criminal code after considerable public debate. The 1979 Code, like its predecessor, treated criminal conduct severely, but it also contained major improvements. For example, the age of adult criminal responsibility was raised from 12 to 16, and the new code gave judges more flexibility in applying sanctions by allowing for alternatives to imprisonment for minor offenses.

The overriding concern of those involved in reforming criminal law in Cuba has been the harshness of sentences. Thus, the 1979 Code was not satisfactory to many involved with the penal system primarily because it maintained a regime of severe sanctions. By 1983 discussions were underway to create a commission to analyze the Code, particularly the sentencing structure, and to propose reforms. Contrary to Mr. Neier’s suggestion that the Cubans only look to the Soviets for models, the Cuban jurists participating in the commission studied the contemporary criminal codes of many countries including the United States. I assisted in obtaining copies of the criminal codes of New York, Illinois and Massachusetts for their review.

As a result of a three year study, a revised Criminal Code was presented to the National Assembly in December, 1987 and was adopted Among the major modifications adopted were substantial reductions in sentences and greater flexibility in sentencing for first time offenders. Moreover, even before the National Assembly considered the proposed reforms, review of sentencing of individual cases was begun. A decree-law passed in 1985 established a special procedure of sentence review called “revisions” which gave the Supreme Court authority to review cases of prisoners to determine whether sentences imposed were too severe. As of June, 1987, 4,000 cases had been selected for review and many of the prisoners had been released or received reduction of their sentences.

The new sentence structure has been applied retroactively to those already serving time, and since April 30, the effective date of the new code, over 1500 prisoners have been released as a result, Prison officials estimate that over 10,000 prisoners (about one third of the prison population) will be released by the end of the year. This reduction would make Cuba’s rate of incarceration substantially lower than that of the United States. Ironically, the criticism of the new code which I have heard most frequently from Cuban citizens is that the sentences are now too lenient.

A similar review of the Code of Criminal Procedure was begun in 1987. A number of revisions are under consideration which would strengthen due process.

Clearly, international attention has prompted some changes. For example, the isolation cells at Combinado del Este are now mostly empty and are being renovated to improve ventilation and lighting. But the shaping of a prison system to serve the goal of rehabilitation rather than punishment has long been the objective of prison officials. The overriding concern is to prevent recidivism and to reduce the prison population. Thus, reform of sentencing and prison rules in Cuba has been primarily the result of internal debate and analysis.

Mr. Neier does note the significant positive aspects of Cuba’s prison regime, most of which are absent from almost all United States prisons: productive work for full pay; clean, uncrowded facilities; excellent medical facilities; educational programs and conjugal visits. Yet, he is compelled to conclude that the system is inhumane. The conclusions are unsubstantiated.

For example, he applauds the fact that prisoners continue to support their families from pay received for work in prison and that conjugal visits are a normal feature. (He understates, however, the frequency of such visits. Most common prisoners have been entitled to 3 to 4 such visits a year, depending on good behavior, and this will be increased to 6 in the coming year as prison population declines.) Moreover, visiting and mail privileges are being increased. Mr. Neier only presents the rules for recidivists and prisoners convicted of violent crimes. The minimum number of visits for this group was increased from 2 a year to 6. Visiting and mail privileges for first time offenders have been and are substantially more frequent. He also fails to mention that prisoners meet family members in open rooms unseparated by glass or wire partitions. Despite this evidence of concern to maintain family ties, Mr. Neier concludes that the rules show determination to isolate prisoners” from their families.

Further, Mr. Neier finds political motivation in isolating common prisoners who violate prison discipline by putting them in punishment cells for 21 days. Mr. Neier implies that most of these prisoners are punished for “political” acts of resistance manifested in minor infractions of prison rules or in demonstrated disrespect for officials. In fact, with few exceptions, the prisoners placed in such cells have stabbed other prisoners, precipitated fist fights or engaged in other acts of violence while in prison.

Like the State Department’s campaign against Cuba, Mr. Neier seems more concerned with criticizing Cuba than with supporting human rights. At one point, he states: “In several other Latin American countries, the security forces torture the people they arrest in order to extract confessions from them or to get them to implicate others, but mistreatment ends when they get to prison.” The implication is that at is preferable for a regime to engage in systematic torture of persons arrested without even the benefit of legal proceedings than to punish convicted felons for infractions of prison rules. Clearly, such logic turns human rights principles on their head.

In sum, Mr. Neier commits the same errors he attributes to Cuba’s other detractors—overstating his case and distorting fact. He does both the cause of human rights and improvement of relations with Cuba a disservice If we are to move closer to normalized relations with Cuba, which I believe we should, we need facts, impartially reported, on which to base rational dialogue.

Debra Evenson

DePaul University College of Law

Chicago, Illinois

Aryeh Neier replies:

Professor Evenson says that I make “factual errors” and leads off with the assertion that “the IPS delegation was not, however, the first to visit Cuba’s prisons.” My article did not suggest that it was the first visit, but described the visit as taking place as a result of an “unusual agreement” that involved the right to visit six prisons of our choice and to conduct confidential interviews with up to one hundred Cuban prisoners of our choice. In exchange, a Cuban delegation was to visit the US and conduct a similar number of visits and interviews. I believe the agreement was unusual in at least two respects: first, in making possible such great access to the Cuban prisons; and second, in its reciprocal provision, which has, unfortunately, been negated by the refusal of the State Department to grant visas to the Cubans.

Professor Evenson cites her own previous visits to Cuban prisons and the visits by three other organizations. I am familiar with the reports that resulted from each of these visits and, frankly, I discounted them. None of the groups mentioned is well known in the field of human rights reporting. More important, neither the reports of Professor Evenson, nor of the National Lawyers Guild, nor of the Human Rights Project so much as mentioned the punishment cells to which I devoted much of my article. This means that they did not see them or did not choose to report on them. Those reports say nothing about the ideological content of the “reeducation” system on which the Cuban prisons are based. As for the beatings of inmates with rubber hoses, kicks and punches that the IPS group learned about in Boniato and in Combinado del Este prisons, there is no reference to this practice in the reports of the Human Rights Project. The National Lawyers Guild report deals with this subject only to the extent of stating in one sentence that: “In one instance, the prisoner reported being struck once after deliberately insulting one of the guards.” Professor Evenson’s own report also deals with this in one sentence, stating that: “In Combinado del Este, prisoners have related that the relationship between inmates and guards is not tense although there are occasional blows from guards, but not beatings.”

There is also the matter of the methodology of these groups. Their reports have little to say on this subject. Yet it is possible to deduce how at least one of these groups went about its work because six and a half pages of the fifteen-page report by the Human Rights Project on Boniato Prison are devoted to a section headed “Interview with Prisoners.” This is introduced with the following paragraph:

When the delegation reached the common room 13 prisoners were sitting facing forward on four rows of benches. The guards and prison officials arranged themselves around the room, and the delegation faced the prisoners sitting on three rows of benches. The warden explained that the group was from the United States.

The Human Rights Project then reports what the prisoners said at this gathering.

This is no way to conduct a human rights investigation. In the first instance, interviews with groups—prisoners, displaced persons, refugees—are of little value. It is essential to human rights fact-finding that testimony be taken in separate interviews in which closely detailed questions are asked. In interviewing separately as many witnesses as possible about the same episodes and circumstances, concurrences and contradictions emerge, and truth may be established. On the other hand, when witnesses testify in a group, they tend not to contradict each other but to follow a line. Also, they may fear that their testimony may be reported back to the authorities.

As should be apparent, when the authorities are actually present to overheat testimony, as was the case of the group interview that is the centerpiece of the Human Rights Project’s report on Boniato Prison, whatever small value there may be to a group interview is dissipated.

The other group mentioned by Professor Evenson is the International Association Against Torture. Before going to Cuba, I knew nothing about this group and what I have been able to find out since then leaves me somewhat puzzled. According to a March 23, 1988, letter “To the Funding Agencies” from the president of the Swiss section, Sylvain de Pury (he also sent me a copy), there are three active sections—in Mexico, Italy, and Switzerland. The letter says that the president of the Mexican section has demanded the resignation of the international president, Paulo Parra, author of the report on Cuban prisons; the vice-president of the Italian section has accused the international leadership of “having manipulated and falsified documents”; and “the Executive Council of the Swiss section, unanimously, demands the resignation of the illegitimate President and Secretary General.” The secretary general is Amanda Castello Parra, wife of Paulo Parra.

To turn now to the actual report of the International Association Against Torture: this is a curious document. The report lists a series of general and specific conclusions that are all very favorable to the government of Cuba and to its prison system. On the other hand, the report contains a list of “suggestions” that deal with some of the cruel features of the prisons, such as a call to “humanize” the punishment cells by permitting natural and electric light and permitting more air circulation; a call to circumscribe confinement in such punishment cells; a call to permit those confined in punishment cells at least an hour a day in the sun; and so on. None of the suggestions deals with the subject of beatings, however, and these are not mentioned.

While I was in Cuba, the Communist party newspaper Granma published the conclusions of Paulo Parra and the International Association Against Torture, omitting the suggestions in the report. When a report is organized in this fashion, of course, it lends itself to such treatment. Two plantados (the longtime defiant prisoners) whom I met in Combinado del Este prison informed me that all the plantados were so outraged by Paulo Parra’s report that they were launching a hunger strike that day in protest. I commented that I was fairly, familiar with the international human rights movement, but had not up to that point heard of Paulo Parra. Accordingly, I wondered whether anything he might have said warranted a hunger strike. This did not dissuade the plantados from going ahead with a hunger strike that lasted several days.

As I pointed out in my article, the IPS invited four person not connected with it to take part in the visit to the prisons in Cuba. One reason I accepted so readily was that I have great respect for the others who also took part. I believe that the delegation put together by the IPS combined knowledge of prisons, knowledge of how to conduct human rights investigations, expertise on health care, and the political impartiality that is required to do a good job. In my view, our findings reflect the nature of the IPS delegation.

Professor Evenson states that the reports by the other groups that visited Cuba all found that “allegations of torture, arbitrary executions, and disappearances are unfounded. Even the IPS delegation found no evidence to sustain such allegations. Yet, the best Mr. Neier can conclude is that he doubts that most such charges can be sustained.”

This is an important point, and I welcome the opportunity to explain my reluctance to state my conclusions in more categorical language. As I pointed out in my article, we found no evidence to support the charges of the US Department of State that these practices prevail. That is not the same thing, however, as saying that we conclusively disproved these charges. It is very difficult to disprove such charges conclusively in circumstances in which no independent investigation may be conducted by the judiciary or by some other agency of government that operates independently; in which there is no free press to investigate such charges; in which there are no independent citizens’ organizations capable of investigating such charges; and in which access by foreign journalists and foreign human rights groups is carefully controlled and monitored by the government.

Although I was permitted to go to Cuba under the auspices of the IPS, and although others associated with Americas Watch were included in the IPS delegation and have visited Cuba under other auspices, the Americas Watch—as such—has never been permitted to visit Cuba. We have been seeking permission to visit since shortly after we were established in 1981, but it has never been granted. If Americas Watch could conduct its own thorough investigation of the charges of torture, disappearances, and secret executions, and if we found that these did not take place. I would be eager to make a stronger statement Given the limits on my ability to look into these questions during the nine days I was in Cuba, however, all I feel able to say is what I said in my article: that I doubt that most such charges can be sustained.

Professor Evenson writes that I deny “historical fact and context” by ignoring reform of the criminal justice system in Cuba. Here, she simply mixes things up. I was not writing about the criminal justice system, which deals with how people get to prison, but with what happens to them once they are put in prison. Even so, as long as Professor Evenson discusses “major improvements” in the Criminal Code, I want to say something about improvements that are yet to be made.

In my article, I mentioned interviewing a prisoner confined for “desacato,” or disrespect. This prisoner is Fernando Villalon Moreira, twenty-six, whose crime seems to have been that he referred to Fidel Castro as a dictator. Under the revised Criminal Code of December 1987, Article 144 provides a sentence of three months to one year for those who defame, insult, outrage, or offend any public official, orally or in writing. If the offense is against the president of the Council of State (Castro) or certain other specified high officials, the sentence is one to three years. Villalon is serving a three-year sentence. The 1987 Code is actually harsher than the 1979 Code, in that the minimum sentence has been raised from six months under the old law when high officials have been offended.

Other crimes specified in the December 1987 Criminal Code include “illegal exit,” “enemy propaganda,” “abuse of the freedom of religion,” “clandestine printing,” and a variety of crimes that involve revealing secrets of the state.

I welcome the changes in sentencing mentioned by Professor Evenson. As she points out, these are reducing the prison population. On the other hand, her comment that, by the end of the year, the reductions will “make Cuba’s rate of incarceration substantially lower than that of the United States” deserves comment.

The United States has among the highest rates of incarceration in the world. Relying on the figures given to me by Cuban government officials, which I take to be correct, the rate in Cuba when I visited in late February and early March was about the same as in the United States. The high rate in the United States reflects two factors: first, out sentences are very long; second, we have a very high crime rate.

Cuba does not release crime statistics and, as is notorious, crime statistics are difficult to compare because the reporting and definition of crimes vary greatly. Even so, it is my impression that Cuba has a far lower crime rate than the United States. Fear of crime does not seem to drive people off the streets at night. Also, when I discussed murders with Cubans—the only crime that is almost always reported and almost always defined the same way, making comparisons involving this crime more valid than those involving other crimes—all those I talked to agreed that these were rare. This impression was reinforced by the fact that, in the maximum security prisons I visited, I encountered very few murderers among the prisoners I selected at random for interviews. In US maximum security prisons, the proportion of murderers would have been much higher. It would not be surprising if Cuba in fact had a far, far lower crime rate than the United States because the population does not have a high level of transiency, which is often a concomitant of high crime rates. Also, private possession of firearms is probably rare in Cuba while it is pervasive in the United States. So is private possession of automobiles, which are often involved in crime here. Finally, traffic in drugs appears to be virtually unknown in Cuba.

If it is the case, as I assume, that Cuba’s crime rate is only a small fraction of that in the United States, the fact that it had a similar rate of incarceration when I visited is probably attributable, at least in part, to the fact that sentences are much longer than the very long sentences in the United States. Again, I avoid a more categorical assertion, both because of the difficulty of getting information in Cuba and because there are other possible variables. It is possible that the rates of apprehension and conviction for crime are higher in Cuba. In addition, to my knowledge, the plea-bargaining that is prevalent in the United States is not practiced in Cuba. What makes me think that greatly prolonged sentences are a factor is that, in almost all cases, it seemed to me that the prisoners convicted of common crimes whom I interviewed were serving significantly longer sentences than they would get for similar crimes in the United States—which has particularly long sentences.

Professor Evenson says that I criticize the “non-adversarial character [of Cuba’s criminal justice system] as a violation of human rights. Yet the investigatorial system exists in most European and Latin American countries.” Again, she is mixing things up. What I criticized was that “Cuban defense lawyers act more as adjuncts of the state than as its adversaries.” In an investigatorial system of justice, such as in Cuba and in most other Latin American countries, as in the adversarial system that prevails in Britain and the United States, lawyers are supposed to act as vigorous advocates for their clients. The characterization of the system as investigatorial rather than adversarial has to do with the way that guilt or innocence is determined, not with the duties of defense counsel. The fact that Cuban attorneys generally do not defend their clients forcefully, challenging the state wherever possible, seems to me to be a serious denial of due process of law.

Professor Evenson also makes several points that, for reasons of space, I will address only briefly.

She says I suggested that “the Cubans only look to the Soviets for models.” This is wrong on several counts. What I wrote is that “the Cuban approach to reeducation is probably derived to a significant extent from the Soviet system.” Professor Evenson converts “significant extent” to “only”; discusses the reform of the criminal code and sentencing where I referred to the reeducation system in the prisons; and ignores the fact that I also pointed out that the concept of reeducation is reminiscent of the rehabilitation theories of nineteenth-century reformers in the United States and elsewhere.

Professor Evenson says “the isolation cells at Combinado del Este are now mostly empty and are being renovated to improve ventilation and lighting.” Perhaps, but they were mostly full when I saw them in early March, and the lighting and ventilation were dreadful. I pointed out in my article that “some changes were made in preparation for the visit of our group and, no doubt, additional changes will be made before the UN delegation gets to Cuba.” I applaud such changes and hope they will include complete abandonment of the punishment cells I saw.

Professor Evenson says that I understate the frequency of visits. I pointed out in my article that there are variations in the number of visits prisoners receive, and that new rules that went into effect the day our group arrived in Cuba have increased the frequency. As I was unable to determine how many prisoners had the right to receive only one visit every six months under the old rules, and one visit every sixty days under the new rules, I simply said that “many prisoners” had such infrequent visits. I asked all the prisoners I interviewed about visits. The majority of the eighty-seven I personally interviewed said they were in this category. The numbers of visits that Professor Evenson mentions in her letter are not different from what I published. Where I differ with her is that I regard this as a very small number of visits, showing a determination to isolate prisoners. In most Latin American countries with which I am familiar, prisoners can have visits every week.

Professor Evenson says that I fail “to mention that prisoners meet family members in open rooms unseparated by glass or wire partitions.” She is right in saying that I did not deal with this subject in my article, but wrong about the nature of visiting. Though most prisoners are permitted contact visits with their families, I saw areas in several prisons where visits take place through heavy metal mesh partitions. Some of the prisoners I interviewed told me that all their visits take place in these areas.

Professor Evenson refers to the placement of prisoners in punishment cells for twenty-one days. As I pointed out in my article, I encountered a number of prisoners who had spent years in cells that were only marginally better than those designated as punishment cells.

Professor Evenson says the inmates of the punishment cells “with few exceptions…have stabbed other prisoners, precipitated fist fights or engaged in other acts of violence while in prison.” Professor Evenson does not give her source for this description, although it is apparently true of some of these prisoners. I was reluctant to pass judgment on them, however, because it appeared to me that there was no system whereby hearings were held within the prisons, or some other fair inquiry took place, to determine if such allegations were warranted and the prisoners deserved punishment. To be confined in such cells for having “precipitated fist fights,” or indeed for other offenses, seems cruel in any case. Some inmates of the punishment cells acknowledged to me that they had gotten into fights; others claimed that they had been disrespectful to the guards or defiant in other ways. Reportedly as recently as May 30, two plantados were sent to punishment cells at Combinado del Este as a result of an incident in which they discovered hidden microphones in their cells. In the relatively recent past, the punishment cells were frequently used to confine such prisoners.

Professor Evenson quotes my assertion that “in several other Latin American countries, the security forces torture the people they arrest in order to extract confessions from them or to get them to implicate others, but mistreatment ends when they get to prison.” From this, she draws the implication that I find the system elsewhere to be preferable. No such implication is warranted. As the context makes clear, I was raising a question about why the mistreatment in Cuban prisons that I saw should take place at all in a system that has a number of very attractive features. The answer I provided was that I think it has to do with the Cuban regime’s intense concern with “reeducation,” which leads to severe punishment of those who resist or who disrupt the process.

Finally, Professor Evenson argues that I do both the cause of human rights and improvement of relations with Cuba a disservice. I hope that relations between the US and Cuba will improve and believe that as a result the human rights situation there would almost certainly improve as well. Such hopes, however, obviously should not prevent those who have observed Cuban prisons from reporting what they have seen.

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