After Attica

The Long Journey to Justice
Old photograph of Attica prison
Fifty years after the “bloodiest one-day encounter between Americans since the Civil War,” Brooklyn Law Notes looks back on the major roles alumni played at the Attica prison uprising and its aftermath, and how their legacy continues with the work of a new generation of alumni, as well as faculty and students striving to change the role of justice and incarceration in the 21st century.
old photograph of Attica Correctional Facility

On September 9, 1971, 1,281 incarcerated individuals at their breaking point took over the Attica Correctional Facility in Wyoming County, N.Y.

Those men, mostly poor people of color, far from the five boroughs that most of them called home, asked only that their human dignity be respected by the state.

What happened next scarred a generation watching on their television sets, as five days of negotiations between the inmates and state officials ended with bullets and tear gas. After the toxic fog had cleared, 43 people were dead. Decades of investigations, hearings, and court cases followed, propelled by those who sought justice for the terrible events of that week.

Front and center at the crisis and its aftermath were Brooklyn Law School alumni. They were at the prison, advocating for a peaceful end to the tense standoff, and remained inside when the gas was dropped. They were in front of the prison gates in the days afterward, trying to stop the seemingly inevitable reprisals. And for 30 years after, they were in the courtroom fighting for justice.

“It’s important to understand that Attica, in general, is an incredibly complicated story,” said Heather Ann Thompson, author of the Pulitzer Prize–winning account of the uprising and its legacy, Blood in the Water (Vintage, 2016). “Just to map out the details of what happened when—not only the event, but the legal history of it… all of these questions are incredibly complicated.”

Fifty years later, the issues of incarceration thrust into the spotlight by the Attica uprising are still not resolved and are as politically divisive as ever. Yet alumni, faculty, and students continue the work today, as they confront the role and purpose of incarceration in a just society.

Witnesses to History

It wasn’t the first time Herman Badillo ’54 had been asked to help end a crisis. While wrapping up his term as Bronx borough president in 1970, Badillo joined New York City Mayor John Lindsay and U.S. Representative Shirley Chisholm to negotiate a resolution to a series of prison uprisings in the city’s jails, most notably in the Manhattan Detention Complex—“the Tombs”—and Long Island City’s Queens House of Detention.

A year later, Badillo, in his first year as a member of the U.S. House of Representatives (the first Puerto Rican elected to that office) was being called on to help resolve another incident. A series of events—a transfer of inmates from downstate prisons leading to severe overcrowding, a contaminated food supply, reprisals against political activity, a defective bolt on a prison gate—had led to the largest prison uprising in recent history. By the evening of September 9, more than 1,000 of Attica’s inmates had taken over half the facility, capturing 50 corrections officers and staff as hostages and barricading themselves in D-Yard, one of the prison’s outdoor areas.

The inmates quickly organized and drafted a list of demands to improve conditions, and requested that a group of neutral public figures be sent to observe any negotiations between the inmates and the state. New York State Commissioner of Corrections Russell Oswald added Badillo’s name to the list, hoping that his experience and clout could help bring about a swift resolution to the crisis.

Herman Badillo along with other observers at a press conference at Attica
Herman Badillo ’54, center, along with other observers, at a press conference at Attica
William E. Sauro/The New York Times/Redux
When Badillo arrived the next day, September 10, more than 30 public figures had come to Attica to serve as observers. Despite their numbers, one of the inmates’ requested observers was conspicuously missing: Bobby Seale, chairman of the Black Panther Party. Badillo knew Seale would be crucial to getting the inmates to agree to any resolution.

On the observers’ first visit to D-Yard, Badillo felt as if they were “crossing a frontier like that between two foreign countries.” They were escorted through the crowd by inmate security, who formed a human chain to protect the observers as they confirmed the health and safety of the hostages and met with the inmates’ negotiators. This was the design of inmate Frank “Big Black” Smith, the prison’s football coach, who had been given control of security operations by acclamation. Smith, a Brooklyn native, struck up a rapport with the observers, who appreciated his efforts to guarantee their safety and that of the inmates.

Many of the observers ended their first visit to D-Yard with a new urgency to resolve the crisis and the confidence that they could bring about a peaceful resolution. Badillo wasn’t so sure. On their walk back, he said to his fellow observers, “I get the feeling they liked us better in there than they do out here.”

Badillo and the other observers refined the inmates’ proposals into something that both the inmates and the state could agree to before patience was exhausted. Badillo thought most of the inmates’ demands seemed reasonable, but one would be difficult to guarantee: amnesty for the actions of inmates during the uprising. Oswald had already given his word that there would be no administrative reprisals, but that still left open the possibility that the state could issue indictments. Wyoming County District Attorney Louis James, while sympathetic, was also unconvinced that he could legally grant amnesty. Responding to arguments made by the observers, James provided a statement ensuring that he was “opposed to… indiscriminate mass prosecutions” of the inmates and would prosecute individuals only where there was substantial evidence to link them to a crime.

The observers met with Oswald to develop a 28-point package that addressed many of the inmates’ concerns, with the exception of full amnesty. Badillo thought the agreement was significant, but worried about what would follow if the inmates did not accept it.

Whatever optimism the observers felt was vanished once Seale landed in Buffalo and joined the negotiations, refusing to honor any agreement that did not grant amnesty. The demand had become more urgent as news got out that William Quinn, one of the corrections officers injured on the first day of the uprising, had died from his injuries. Under New York state law, all the prisoners could now be indicted for murder. Even Badillo knew that an offer of amnesty would now be essential to any agreement the inmates would accept.

Attica inmates negotiate with New York State Commissioner of Corrections Russell Oswald
Attica inmates (including Frank Smith, at center with sunglasses) negotiate with New York State Commissioner of Corrections Russell Oswald (bottom left)
Badillo’s hope that Seale could save the agreement was dashed the next morning when, upon his arrival, Oswald told Seale he would not be allowed into D-Yard unless he promised to endorse the 28 points. Seale left, but not before giving a statement to the press.

“The Black Panther Party position is this: The prisoners have to make their own decision,” said Seale. “I will not encourage them to compromise their position.”

Tensions were mounting. A false rumor had been passed to the media that Quinn had been sodomized and castrated by the inmates before being thrown from a high window. The inmates had started to build defenses in D-Yard, digging trenches, electrifying fences, and building barricades made of mattresses covered with gasoline.

Badillo had concerns closer to home: If the state came down hard on the inmates while retaking the prison, he believed, Black and Puerto Rican communities across the state could start violent uprisings of their own, with catastrophic results.

To buy time, the observers developed an alternative strategy, one that ran through one person: New York Governor Nelson Rockefeller. In a call that lasted over an hour, Badillo and others implored the governor to meet with them at Attica. Badillo was blunt about the risks of inaction: “You need the time as much as we do. If you send those troopers in there, you’re not going to have enough National Guardsmen in Harlem and the South Bronx.”

However, Rockefeller denied that he had the ability to grant amnesty and doubted the inmates’ will to negotiate. Privately, he felt that his presence would legitimize the uprising, leading to more inmate actions in prisons across the state.

After they hung up with Rockefeller, Badillo knew they were running out of time to prevent a massacre of the inmates. He, along with eight others, agreed to spend the night at the prison, hoping their presence would prevent the state from acting before the morning.

The morning of September 13, Department of Corrections Services staff advised the observers that the inmates had refused Oswald’s final offer and the facility was being cleared for retaking. If they chose to remain, the state could not guarantee their safety. Despite their fear, Badillo and the others felt a deep responsibility to witness what would happen.

Inmates in D-Yard
Inmates in D-Yard
At 9:42 a.m., Oswald gave the order to the helicopter crews at the ready in the prison parking lot. Later accounts would show that state law enforcement fired more than 2,000 rounds into the crowds already choking on tear gas. Many were armed with shotguns loaded with wide-arc buckshot, others with their own .270 hunting rifles using unjacketed bullets, which were banned by the Geneva Conventions. By the time it was all over, more than 120 people had been shot; 43 were dead—32 inmates and 11 corrections officers.

“There’s always a time to die,” said Badillo as they listened to the gunfire. “I don’t know what the rush is.”

Once state control was reestablished, law enforcement gave Badillo and other elected officials a tour of the facility. The officials were told that the hostages who died had been murdered by the inmates, some by slit throats, some by disembowelment, all of which they claimed had been captured on film.

To the law enforcement officers now in charge of the facility, this justified the savage beating, torture, and humiliation that followed. Badillo watched as the inmates were forced at gunpoint to strip naked and run over broken glass past lines of guards hitting them with batons. National Guard officers would later testify that they watched as inmates bleeding out on the ground were kicked again and again by the doctors sent to help them. Frank Smith, who had ensured Badillo’s safety in D-Yard, was singled out, forced to lie on a ping-pong table in the middle of the yard, naked, beaten, and bleeding, for over six hours.

As the torture of the inmates continued, the state held press conferences just outside the prison gates, repeating the story that was relayed to the country: that the uprising at Attica was a dangerous riot incited by hardened, violent criminals. Any ill treatment they received was justified by the danger they posed to the public, and the state was fully empowered to ensure order by any means necessary.

Badillo’s involvement at Attica and his disappointment in the outcome had a lasting effect on the young congressman. In A Bill of No Rights: Attica and the American Prison System (Outerbridge and Lazard, 1972, with Milton Haynes), he shared how what he witnessed reframed his views on prisoner rights and rehabilitation. Attica, to Badillo, was just further proof of the injustice and racism within the American prison system, something he would carry with him for the rest of his long career in public service.

“Our society must deal with the fact of the massacre and with its implications,” wrote Badillo. “Responsibility for the slayings does not rest with one man alone. Every state official who went along with the decision to send in the troops, and every trooper who confronted the gassed inmates in the yard on Monday morning, had a choice before him.

“… One does not need to take an extreme political position. The facts of Attica are extreme enough on their own: law enforcement officials deliberately chose to shoot to kill.”

A Call to Action

The generation of attorneys that had come of age during the anti-war and Civil Rights movements were not ready to believe the official story of Attica. On the day of the retaking, lawyers started to pour into upstate New York to help protect the inmates now at the mercy of the state.

Emily Jane Goodman ’68, then a young lawyer in the criminal division of the Legal Aid Society, was in the office of the National Lawyers Guild when William Kunstler, the famous attorney who had represented the Chicago Seven, called from Attica, where he had been serving alongside Badillo as an observer.

“He told us that this place… is going to ‘explode,’ and doctors and lawyers are going to be needed,” she said.

Goodman raced to LaGuardia Airport to catch the first flight to Buffalo, where she rallied with other attorneys at the University at Buffalo School of Law. The lawyers suspected that violence against the inmates was still ongoing, but they didn’t have any proof.

One of the attorneys present, William Hellerstein, proposed that they seek a federal injunction allowing them to enter the prison to assist inmates and prevent any violations of their Miranda rights. Hellerstein, today professor emeritus at Brooklyn Law School, had made a career in defendants’ rights, taking civil rights cases in Mississippi and Arkansas in the 1950s and representing comedian Lenny Bruce in his obscenity trial and appeal. Now, as attorney-in-charge of the criminal appeals bureau of the Legal Aid Society, he had secured a grant from the U.S. Department of Justice to start a prisoners’ rights project, which fortuitously had gone into effect the week before.

New York State law enforcement retaking the facility
New York State law enforcement retaking the facility
After Hellerstein secured a temporary injunction from U.S. District Judge John Curtin, a large group of attorneys and doctors, including Goodman and Hellerstein, set off for Attica late that night. At a gas station close to the prison, they were suddenly surrounded by state troopers, who pulled their shotguns and demanded to search the vehicles.

One of the troopers pointed a gun at Goodman through the car window. “[The trooper] said we couldn’t go any further. We said we had a court order to enter the prison grounds. And he said, ‘You’ve got a court order, but I’ve got a bayonet.’”

Hellerstein, using lessons learned from his time in the South, argued that it was a crime for them to interfere with the process of serving a federal court order and convinced the troopers to let the group pass without interference. The lawyers arrived at the prison gates at 2 a.m., but the deputy warden refused to allow them to enter without the head warden present.

After spending the night in her car, Goodman was still in the parking lot the next morning when Monroe County Medical Examiner John Edland announced that contrary to the state’s accounts, all the hostages who died did not do so at the hands of the inmates, but had been shot by law enforcement during the retaking of the prison.

For Goodman, the lawyers’ treatment by law enforcement at Attica stayed with her. “We were naive,” she said. “We believed in the power of a court order…. [The encounter] certainly made it very clear who had more power, a court order or them.” When she was later elected as a judge in the New York State Supreme Court, she would always take a second look at reports and evidence for signs of abuses of power.

Several days after the temporary injunction was formally dismissed by Curtin due to lack of evidence, members of the National Guard came forward with testimony of the violence taking place inside the prison after the retaking. Seizing the opportunity, Hellerstein filed for a permanent injunction. After two months of hearings filled with testimony from both inmates and the observer committee, Curtin recognized that the Department of Corrections had violated the rights of the inmates in the days following the retaking. However, he did not grant the injunction, ruling that because so much time had passed, the risk of reprisals had ended.

Hellerstein appealed, arguing before the Second Circuit that due to the severity of the conduct, the court could not rely on the state’s representatives to guarantee that the abuse of the prisoners was over. In his closing arguments, Hellerstein quoted U.S. Supreme Court Justice Louis Brandeis: “If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

“I put it all out on the table,” said Hellerstein. “I mean, there was an awful lot of human emotion…. A lot of people’s lives were at stake, and this was serious business.”

The Second Circuit agreed with Hellerstein, granting the injunction. For the following year and a half, whenever an inmate contacted Legal Aid saying that guards were not obeying the injunction, Hellerstein would return to Buffalo for contempt hearings to ensure their compliance.

“This was a major inflection point in American prison history, and still is,” said Hellerstein. “Getting the Second Circuit to reverse Judge Curtin and granting injunction was a major piece of prisoners’ rights litigation.”

Although the inmates were now protected by the courts from physical violence, other kinds of state violence could be meted out. In December 1972, a grand jury handed 62 of the surviving inmates 42 separate felony indictments, charging them with 1,289 crimes. More than half of the indictments carried a life sentence on conviction. Not a single state trooper or guard was charged with a crime.

In response, attorneys from Legal Aid and the National Lawyers Guild, along with inmates who had been released, set up the Attica Brothers Legal Defense (ABLD) to provide an attorney to every inmate charged with a crime. Working out of a converted barn outside Buffalo, the shoestring operation included not only attorneys and law students, but staffers for outreach, public relations, and graphics design. Emily Jane Goodman represented Joseph Little, the first to be released from the prison since the retaking. Frank Smith, out on parole, dedicated himself to the cause, becoming ABLD’s executive director.

Law enforcement officers on the wall surrounding D-Yard
Law enforcement officers on the wall surrounding D-Yard, Sept. 13, 1971
“They made it clear that this was about the state,” said Heather Ann Thompson. “It wasn’t just about defending [the Attica Brothers]. It was about state violence.” One by one, most of the cases brought against the inmates were dismissed.

Eventually, the tides of history changed. In 1974, Rockefeller left the governor’s mansion to serve as Gerald Ford’s vice president, taking the prosecution’s administrative headwinds with him. In 1975, a whistleblower on the prosecution team notified Governor Hugh Carey that his superiors were preventing the investigation of criminal actions taken by law enforcement during the retaking. After an internal investigation, Carey moved to “close the book on Attica,” and dismissed all the pending criminal cases and investigations.

While the Attica Brothers had avoided prosecution, neither they nor their counsel thought that things had been set right. The suffering of the victims from the state’s actions had not been taken into account. Smith, for one, would lose feeling in his legs from time to time. His wife would later testify about the nightmares that sent him under the bed, screaming.

Luckily, they had one ace in the hole.

The Arc of History

Daniel Meyers ’66 had been in proximity to the Attica uprising from the start. He shared a civil rights practice in Manhattan with Lewis Steel, a former NAACP attorney who was called to Attica as an observer along with Badillo. Meyers had started his legal career at South Brooklyn Legal Services, making a name for himself in cases arguing for community control of public schools and preventing the conversion of co-op buildings to private ownership.

Meyers remained involved with the ABLD from a distance until the summer of 1974, when he received a call for help that would make him a key player in the next stage of litigation.

By then, it had become apparent to the Attica lawyers that the state prosecutors, concerned only with the alleged crimes committed by the inmates, would not conduct any criminal investigations into the conduct of the Department of Corrections or state law enforcement. With the statute of limitations rapidly closing, and an entire prison population to represent, a class action civil suit would need to be filed. The ABLD attorneys in Buffalo, overwhelmed with the criminal defense cases, could not spare the time to draft and file the papers. They asked Meyers to bring the civil suit.

“I was a criminal lawyer,” said Meyers. “I had no experience with any federal case, or any civil case, and yet for some reason I said yes.”

Meyers spent the summer studying draft complaints and collaborating with fellow lawyers. In September 1974, the day before the statute of limitations expired, Meyers filed Akil Al-Jundi, et al. v. Rockefeller, et al. Advancing an argument from Hellerstein’s original injunction, the plaintiffs argued that the state officials at the prison had used excessive force “calculated to cause unnecessary and inexcusable death, serious injury, terror, and suffering.”

The attorneys chose to file in the Southern District of New York, where a jury pool would be more sympathetic. Their venue was denied, and the case was transferred to the Western District of New York, where Rockefeller’s attorneys stalled the case for 17 years.

One of the first obstacles the plaintiffs faced was finding an attorney willing to commit to leading a long and complex case against what Thompson called “the best-connected and best-funded lawyers in New York.” Smith had one person in mind.

On July 4, 1974, Elizabeth Fink ’73, a year out of law school, had driven her mother’s car from Brooklyn to Buffalo to work for ABLD. Working for no pay, she had a tenacity in cross-examination and a knowledge of the law that quickly left an impression on Smith.

“Being around Liz is like going to school,” said Smith in the 2001 documentary Ghosts of Attica. “Liz is a litigator. Liz is a fact finder. Liz liked a fight, staying in your face, making you work the law and working the law, making you respect it, making you accountable.”

Fink initially refused to lead the civil litigation, citing her caseload, her lack of experience on civil cases, and the resources she would need to counter the efforts of the opposing counsel. However, Smith was eventually able to convince her to join. After Fink’s first day in court, one of the judge’s clerks recalled, “the other lawyers were blown away.”

Attica inmates corralled in D-Yard at gunpoint by law enforcement
Attica inmates corralled in D-Yard at gunpoint by law enforcement, Sept. 13, 1971
Despite the difficulties, the Attica Brothers legal team, now a core team of five that included Fink and Meyers, did not back down. Working out of Fink’s law office above the St. Clair Diner on the corner of Smith Street and Atlantic Avenue in Brooklyn, they continued to file motions, gather testimony, and conduct investigations. Fink emerged as the locus of the legal team, serving as the liaison between them and the Attica Brothers, while also managing the day-to-day correspondence with the courts.

“We found ourselves constantly up against the establishment, judges who acted as if they were untouchable,” said Meyers. “We were just regular four-year, five-year, six-year lawyers, working-class lawyers.

“They tried to paper us out of court. They filed every possible paper for as long as they possibly could, but they didn’t paper us out.”

The legal team also was supported by the continued involvement of the Attica Brothers in the proceedings. Smith joined Fink’s practice as a paralegal and investigator. Akil Al-Jundi, the named plaintiff in the class action suit, became a highly regarded paralegal at the Legal Aid Society. Both would travel with the legal team to court hearings in Buffalo.

“Many of the inmates I’ve represented would have gone on to be fine lawyers,” said Hellerstein, who hired some former Attica inmates at Legal Aid. “So many of these people, who may have been convicted of serious crimes but came from [difficult] circumstances, were highly intelligent. There was a lot of human capital in that cohort that has never been capitalized on.”

A breakthrough came when, in 1982, Fink was able to acquire a court order to see the state’s documents on Attica. From the office of the New York state attorney general in the World Trade Center, Fink sorted through countless unorganized documents, photos, and videos documenting the abuses at Attica that no one outside the state investigation had seen.

In 1991, the case finally went to trial. There, the plaintiffs’ attorneys, including Fink and Meyers, used the wealth of evidence gathered over 20 years’ worth of investigations, as well as the emotional testimony of the surviving Attica Brothers, to overwhelm the defense.

“What this case is about, ladies and gentlemen…is torture,” said Fink in her arguments to the jury. “This was torture that lasted for hours, that was physical, was race-based, and was psychological. This was torture that was witnessed by others and these witnesses will come in and testify before you about what they saw happen and their reactions to what they saw.”

Ultimately, the jury agreed that at least one of the named defendants bore responsibility for “planning and then personally [overseeing] the brutality,” proving the class-wide liability Meyers had outlined in his original filing.

After another five years of waiting, the court held two representative damages trials to determine the state’s monetary liability. Frank Smith, as representative for the “most harmed” class in one of the trials, received a jury verdict of $4 million, a historic amount for damages awarded to a plaintiff against the government.

Facing a potentially massive payout, the state immediately appealed. The Second Circuit, in a decision drafted by then Law School Trustee Judge Ralph K. Winter, dismissed the class action liability. Facing the prospect of trying 1,281 individual cases 25 years after the uprising, the Attica Brothers and their attorneys decided to agree to a $12 million settlement in 2000.

Elizabeth Fink with Attica Brothers outside the federal courthouse in Buffalo
Elizabeth Fink ’73 (center) with Attica Brothers outside the federal courthouse in Buffalo, 1992
“You can’t try 1,281 individual cases,” said Meyers. “[It was] an impossible situation. A class action [suit] gives you the ability to have everything considered under one roof. It’s the only way in these civil mass cases that you can have any kind of justice…. In Attica, how could you not have a class of people affected when gas is dropped on them? Where brutality and torture is commonplace?”

“Justice is what everyone is due and no one gets,” said Fink in an interview in Ghosts of Attica. “What would have been justice would have been very simple: to indict the murderers, to impeach Nelson Rockefeller, and to award significant compensation immediately to the victims.”


The Attica uprising was an inflection point in the struggle for prison reform. Yet this is a somber anniversary for those who continue to work tirelessly to reform the criminal justice system. The prison population has grown from about 300,000 in 1970 to more than 2.4 million today. In 1971, there were 12 New York state prisons; in 2021, there are 50. Among incarcerated individuals, 48 percent are Black, compared with just 15 percent of the state population as a whole. In New York City, city officials at the Rikers Island jail complex have struggled to adequately respond to the twin crises of the COVID-19 pandemic and rampant staff absenteeism, leading to the rapid deterioration of conditions for detainees, an overwhelming majority of whom are awaiting trial. As of this writing, 14 detainees in the facility had died since the start of the year, making 2021 the deadliest year in the city’s jail system since 2016.

“All of the things—the overcrowding in the prisons, the lack of parole, the number of prisons—are worse,” said Meyers. “People who were [at Attica] and are doing prison work now say that conditions at Rikers are worse than they were then.”

Although the state’s narrative about what happened at Attica was thoroughly discredited by the Attica attorneys, the dark force of the lies told about the uprising endures. Fink, who died in 2015, dedicated her life to making sure the truth of what occurred lived on. Her encyclopedic knowledge of the events of September 1971 and the ensuing 30 years made her an invaluable resource for the many documentarians, writers, and historians looking for the real story of what happened. She also ensured that many of the key pieces of evidence, including photographs of the abuse of inmates, were made available to the public after her death.

“You couldn’t write a book [about Attica] without talking to Liz,” said Thompson. “It was always such a privilege to be in her presence. She embodied the spirit of ‘Attica means fight back.’ It was heartbreaking that she passed away a few months before [Blood in the Water] went to press. I always wanted to show her the full draft of the book… I wanted her to think it was good and honored the story. In so many ways, it was her history.”

As the country’s current reckoning with its deep legacy of racism renews calls for social justice, the present moment can feel much like 1971. A new generation of lawyers, activists, and academics are now rising to the challenge of creating a better and broader idea of justice.

“For law students, this is a moment to think of the law as an opportunity to do good for the community and for a more just future,” said Thompson. “A whole generation of law students came out of the Attica movement and felt they could make a difference. There is no better example than that to inspire you.”