The swap of prisoners and the new diplomatic rapprochement between Cuba and the U.S have been heralded by both governments as a harbinger of more amicable relations to come. But that new detente is unlikely to end a half-century of rhetorical battle over which country most flagrantly flouts the rule of law.
One of the Cubans’ greatest bones of legal contention is the U.S. incarceration of terror suspects at Guantanamo Bay, which Cuba regards as a violation of its sovereignty and, to quote the state-run press, a “prison of shame.” The 2001 case of the Cuban Five, three of whom were released in this week’s swap, became another lightning rod in the debate. The accused spies railed against the imperfections of the American system – an unfair trial, draconian sentences, and months-long stints in solitary – and won the support of many human-rights groups.
The Americans’ most vociferous indictment of Cuba is its suppression of freedom, and in particular the mistreatment of political prisoners. Alan Gross, Cuba's bargaining chip in the prisoner quid pro quo this week, was another witness to the Cuban style of justice. The U.S says he was a humanitarian convicted on trumped up charges of espionage. During his five-year confinement, his health rapidly deteriorated, and a “despondent” Gross told family members he was considering suicide.
There is an element of glass houses in this dispute. Both countries have the undesirable distinction of landing on the Top Ten list of countries with the highest rates of incarceration. The United States incarcerates 910 people per 100,000, according to the most recent data from the Bureau of Justice Statistics. Cuba imprisons 510 people per 100,000, according to United Nations figures from 2012.
And there’s some reason to believe that the two prison systems have more than just a statistical resemblance: accounts of life behind bars in both countries are sobering, and similarly so. Cuban dissident Darsi Ferrer, locked up in Havana for a year-long sentence, described a facility filled far beyond capacity, where inmates slept on the floor and were subject to senseless beatings. Sound familiar? Overcrowding and medical neglect have plagued California’s facilities, the brutality at New York’s Rikers Island has drawn the attention of federal prosecutors, and this year deadly abuse by Florida guards erupted into scandal.
Here are two more specific areas for comparison.
In 2012, Cuba extended a rare invitation to reporters to take a (closely curated) tour of several of its prisons. One inmate told a journalist that after being transferred from Combinado del Este, where deplorable conditions have been described, he was rewarded with a transfer to a lower-level prison, which serves as a “centre for work and study.” There he worked as a “convict-carpenter” and received wages that he says were double the state salary he could have expected outside prison.
This isn’t much to boast about: average wages in Cuba are gradually climbing, but still very low (about twenty dollars a month). But the relationship between wages inside and outside prisons couldn’t be more different in the U.S, where incarcerated labor is virtually unpaid: 18 percent of those who are in federal prisons work in some capacity; the number of employed in state penitentiaries varies since some states require that all able-bodied prisoners work, while others provide very few programs. Yet these laborers — who frequently receive wages as low as 25 cents an hour, and whose maximum wage in federal prisons is $1.15 — may be a source of relief for strained state budgets. To alleviate the increased strain on public services, more and more local jurisdictions are looking to prisoners as a cheap source of labor. While it’s difficult to quantify how much inmate labor has helped budgets as it varies on a case-to-case basis, The New York Times reported that Florida managed to save $2.4 million a year by employing inmates as farmers.
This fall, Cuba’s pre-trial detention policies once again raised ire, when the trial of the so-called Ladies in White, a group of peaceful women protesters, was postponed for the fourth time. The women have been held in jail for 18 months, leading to an outcry among advocates.
By contrast, in the U.S., the rights of pretrial detainees are well-codified – for example, in this Jailhouse Lawyer’s Manual. But recent reports suggest they may not be as well practiced. The story of Kalief Browder, documented in The New Yorker this fall, showed that the mysterious postponement of trials is hardly a mysterious phenomenon in the United States. Browder spent three years at Rikers Island (including time in solitary) trying to push his case into the courtroom:
By the end of 2012, Browder had been in jail for nine hundred and sixty-one days and had stood before eight different judges. He always maintained his composure, never berating his attorney or yelling protests in court. O’Meara was impressed by his control. “I can’t imagine most people sitting in there for three years and not becoming very upset with their attorney,” he says. “He just never complained to me.” Privately, though, Browder was angry. About the prosecutors, he would tell himself, “These guys are just playing with my case.”
Pledges for Reform?
Could this week’s breakthrough change this narrative of criminal justice? Cuba has long denied access to the Red Cross, but during the sanctioned media visit last year said its invitation to journalists was a “step forward.” As part of this week’s announcement, Havana agreed to allow human rights officials back into the country.
And on the American side, the new chapter of Cuban-American foreign policy has prompted speculation about whether President Obama will renew his 2008 pledge to close the prison at Guantanamo.
It’s too soon to say whether a gentler form of justice will take hold in either country. For now, their track records suggest neither should look to the other as a model of how to run prisons.