For Cuban detainees who took over federal prisons and held hostages in Atlanta and Oakdale, La., last month, the fruits of their rebellion are not particularly sweet. At least, that is the view of some lawyers for the inmates. And US Department of Justice officials admit that the new, case-by-case review promised the Cubans simply inserts an extra step into the existing parole determination system. The Justice Department's position is that this last review ensures that all detainees will receive a full and equitable review of their cases. But critics say it does not address such basic legal issues such as the right to counsel.
``This is a step in the right direction,'' says American Civil Liberties Union lawyer Wade Henderson, but ``the Justice Department has a long way to go.''
Mr. Henderson says the new step is merely a review of the inmate's file, and the only definite assurance to those incarcerated is the ability to submit a written statement. He says the right of an inmate's lawyer to appear at the review, speak for the client, and to call and cross-examine witnesses is ``entirely'' at the discretion of the panel.
The Cuban detainees have a right to counsel, but not at government expense. Henderson says the right, then, ``is without substance.'' Many of the detainees, he explains, have ``no family and no money. The likelihood of them all being represented is nil.'' Deputy Attorney General Arnold I. Burns sees it differently. He expects a groundswell of support for the detainees from church groups and charitable organizations. ``We expect that people in the Cuban-American community will step up and be helpful in this regard. We would expect there will be ample resources available to them outside of the taxpayer,'' he says.
The US Court of Appeals for the 11th Circuit has ruled that the Cubans have to accept whatever statutory rights Congress grants them. The US Supreme Court has declined to hear an appeal of the circuit court ruling. Under current law the Cubans are classified as ``excludable'' from residence in the United States because they entered the country without documents. This status makes them illegal aliens devoid of constitutional protections.
When he announced the new Justice Department procedure, Mr. Burns said, ``We are going far beyond anything that the law or the courts have required.''
US Rep. Pat Swindall of Georgia, ranking Republican member of the House Subcommittee on Immigration, is preparing a letter to the Justice Department urging that subpoena powers and the ability to cross-examine witnesses be conferred on the inmates' lawyers under the new process. Mr. Swindall says he wants to ``spell out what the hearing should contain.'' He also plans to urge a ``clean slate'' approach where each inmate's status is ``not married'' to what is already on the record.
During the Atlanta and Oakdale uprisings, sparked by the reinstatement of an agreement with Cuban President Fidel Castro to permit deportation back to Cuba of 2,546 inmates determined to be ineligible to remain in the States, US Attorney General Edwin Meese III declared a moratorium on deportations pending ``full, fair, and equitable review within the laws of the United States.''
The Cuban President had voided the earlier agreement when US-sponsored Radio Marti began broadcasts from Florida.
Approximately 7,600 inmates are affected by the new review process. All came to this country during the so-called ``freedom flotilla'' from the port of Mariel, Cuba, in 1980. Of the original 125,000 people from Cuba who entered the US then, all but 212 were given a special ``parole'' status and released by the US Immigration and Naturalization Service (INS) after spending several months in special camps. Persons with such parole status can eventually become eligible for citizenship. Most who arrived in the flotilla have made smooth transitions into American society, authorities say.
Those who wound up in custody ``have demonstrated repeatedly that they can't act as productive members of society, ' says US INS spokesman Duke Austin. They committed crimes and thus violated their special ``parole'' status. Under the law they are remanded back to the INS, even if they have finished serving their sentences. Whether these detainees will be reparoled or repatriated to Cuba is now up to the review panels set up by the Justice Department. Eligibility for citizenship as a reparolee turns on the nature of the crime committed.
The new process gives ``Departmental Release Review Panels'' the last word. INS makes the initial determination on parole and these ``new panels will provide one more opportunity, with ample advance notice, and with the advice and help of counsel, for obtaining parole,'' says Deputy Attorney General Burns. The proceedings will be closed to the public. Each panel is composed of an associate attorney general, the assistant attorney general for civil rights, the director of the Justice Department's community relations service, or their designees. The panels have not been set up yet, but Burns says the department intends ``to do so promptly.''
When determining whether a detainee will be released or repatriated to Cuba, the panel will consider at whether the inmate has a history of serious crime which constitutes a threat to society, and whether the inmate has family members in this country or possesses job skills.
Some in detention have committed petty offenses. But one-fourth of the 2,400 who were housed at Oakdale and Atlanta had been convicted of violent crimes and almost as many had been convicted of involvement with dangerous drugs. Eighty-one had been convicted of murder, 16 of kidnapping, 56 of sexual assault, 299 of robbery, 201 of assault, and 12 of arson.
``Ensuring public safety requires that we weigh heavily the commission of crime,'' Burns says. He adds that Justice is setting up as many review panels as possible to ensure that each case moves ``with all due practicable speed.''