Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 4

11-18-2010

Reflections on 60 Years of Outside Scrutiny of
Prisons and Prison Policy in the United States
Nicholas de B. Katzenbach

Recommended Citation
Nicholas de B. Katzenbach, Reflections on 60 Years of Outside Scrutiny of Prisons and Prison Policy in
the United States, 30 Pace L. Rev. 1446 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/4
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
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Reflections on 60 Years
of Outside Scrutiny of Prisons
and Prison Policy in the
United States
The Honorable Nicholas de B. Katzenbach
Editors Note: This speech, in transcript form with minimal
editing, was one of the keynote presentations made at the
“Opening Up a Closed World: What Constitutes Effective Prison
Oversight?” conference held at the University of Texas in April
2006.
While it has been 40 years since my involvement with the
1967 Commission on Crime, my interest in prison oversight
actually dates back more than 60 years! Let me take you back
to February 1943, when I was taken prisoner by the Italians in


Nicholas Katzenbach's career of public service includes several key posts
and accomplishments, including his appointment as the Sixty-Fifth Attorney
General of the United States in 1965 by President Lyndon B. Johnson. In
that post, he helped to draft the 1965 Voting Rights Act. Earlier, as Deputy
Attorney General, he was responsible for securing the release of prisoners
captured during the Bay of Pigs raid on Cuba. He also oversaw the Justice
Department's efforts to desegregate the University of Mississippi in
September 1962 and the University of Alabama in June 1963, and he worked
with Congress to ensure the passage of the 1964 Civil Rights Act. Following
his resignation as Attorney General in 1966 after clashes with J. Edgar
Hoover, Mr. Katzenbach was appointed Under Secretary of State (1966-1969)
and one of a three-member commission charged with reviewing Central
Intelligence Agency activities. He also chaired the 1967 Commission on
Crime in the United States. In 1969, Nicholas Katzenbach became General
Counsel of the IBM Corporation, where he remained until 1986, and he is
currently Non-Executive Chairman of the MCI Board of Directors. A former
prisoner of war for two years during the Second World War, Mr. Katzenbach
later attended Princeton University and then Yale Law School, becoming
Editor-in-Chief of the Yale Law Journal. He also received a Rhodes
Scholarship and studied at Oxford University for two years. Early in his
legal career, he was Associate Professor of Law at Yale University (19521956) and also Professor of Law at the University of Chicago (1956-1960).
Nicholas Katzenbach co-Chaired the Vera Institute’s Commission on Safety
and Abuse in America’s Prisons from 2005-06.

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North Africa. I want to recall some aspects of that experience
that have implications for our discussions.
It was at that time that I learned about the use of the
Geneva Convention. I was only 21, but I had heard something
about it, and so when I saw all the Italian officers eating well
and drinking wine, I said that under the Geneva Convention,
we prisoners were entitled to wine as well. That bothered the
officers a great deal, because they didn’t know anything about
the Geneva Convention.
This was not a regular prison camp—I hadn’t gotten into
one of those yet. The result of my insistence was that they
served us wine. I should say that in the 27 months I spent as a
prisoner, that was the last time that I had a glass of wine!
The Geneva Convention laid down standards and I
believed this to be one of the standards: that we were entitled
the same food and drink as the Italian officers. In fact, the
standards didn’t go quite that far. However, it was my first
experience with what a prisoner should be able to expect—
some kind of scrutiny, some kind of standard, some kind of
oversight.
And I can tell you now how grateful I was while sitting in a
German prison camp for the oversight provided by the Geneva
Convention, for the visits that we had from the Swiss, and for
the complaints that we registered under the Geneva
Convention. I can’t help feeling that if President Bush had had
a similar experience he might have a different attitude about
the treatment of prisoners in wartime.
I would add that we had Russian prisoners nearby. Russia
was not a signatory to the Geneva Convention. As a result, the
treatment that the Russian prisoners received was absolutely
brutal and abusive. So the Convention made a real difference
to us.
To talk about oversight in a slightly more current context,
I feel very presumptuous in talking to you about the topic,
because there isn’t anybody in this room who doesn’t know
more about prison oversight than I do. I can’t really tell you
anything you don’t know, but I can give you the thoughts of an
amateur looking at the process.
It seems to me that “Yes,” of course there has to be
oversight of prisons, just as there is oversight of virtually every
other public institution. One may wonder about whether there

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is a valid comparison with schools and hospitals. The only
difference that I see is that these other institutions have
natural constituencies of their own to provide a broader range
of oversight, invoking standards that are central to their
concerns. The standards for hospitals come out of the fact that
hospitals have to treat patients, and patients (with their
families and friends) have ideas about how hospitals ought to
operate.
With the schools, you have Parent Teacher
Associations. All parents that I know, including my wife and
myself, think we have pretty good ideas about how children
ought to be educated, and about what is right and what is
wrong about the education that the children are getting.
You don’t have a natural constituency, unfortunately, for
the oversight of prisons, a constituency that is recognized by
the public as well as by the people who run the prisons.
It is also true that it’s very hard to think of anybody
running an operation who in any sense really welcomes
oversight. Now, we’ve heard a lot of people at this conference
welcoming oversight and talking very positively about it.
That’s a very good sign. But people in power, in my experience,
rarely think they need a lot of advice from other people as to
what they should do, because they consider they know what it
is that they should do and they are in the process of doing it.
There is an arrogance of power that exists, I think, in all people
who have power; and God knows people who are running
prisons have a huge amount of power in terms of what they can
do.
So I was curious as to why in these times we suddenly are
getting a much more welcoming attitude from the people
involved who could expect to be criticized with oversight.
Oversight, I think, implies at least an opportunity to criticize.
Moreover, oversight carries with it a little bit of a negative
thought: We are looking, at least in part, to see what’s wrong
with what you’re doing. Yet I think that maybe, just maybe,
things are changing in this respect, too. I wondered why this
might be so. I began to think that at least in the case of
prisons, as it must have occurred to many of you and your
colleagues, it is difficult for people who are running a good
prison operation to be opposed to external scrutiny when that
lack of oversight protects those who are running very bad
operations.
That is not the position that any good

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administrators want to be in. I think they will have the
thought, “We’ll take our lumps if we have to take them, but we
want others to take them, too, because we know that we are
doing a better job than the others.”
I think there is yet another reason that prison oversight is
becoming more welcome. It lies in what’s been happening in
the criminal justice system at a broader level—though we
haven’t been discussing it directly at this meeting, it underlies
much of our discussion. The attitude toward crime and
punishment that we’ve had in this country since 1967 has led
to a great shift of power from judges to prosecutors and to huge
sentences being imposed routinely. Indeterminate sentences
giving way to fixed sentences without the possibility of parole,
the length of the sentences, and the numbers of people
convicted of non-violent crimes that suffer such sentences have
raised huge issues for the prison system, including the issue of
hope. Where in the system is the hope—the hope of the
prisoners getting out, the hope of the keepers, the hope that we
can do better?
It has been made almost impossible to fix prisons in the
ways that the wardens and commissioners know to be the right
ways to fix them. We don’t have the money, we don’t have the
facilities, we can’t do it. Now with sufficiently broad oversight
there can be help on this. One of the things that I’ve been
hearing about is an effort to move oversight from looking at
what’s wrong with what’s going on in prisons to really using
oversight as a kind of tool for informing people as to why things
are going wrong and all the difficulties these problems are
causing. I applaud the effort. I think it will be a great
contribution if you can use oversight in this way and I think
that you probably can.
However, I think we have to recognize that in our
American society there is still a very big tension—although I
hope and believe that the pendulum is starting to swing to
some extent in the other direction—between those people who
want these changes and those who not only want crime
punished but want criminals to be put into jail forever with the
key thrown away. The fewer privileges they have as prisoners,
the less they are molly coddled, the more punishment and the
better it is. That’s about as shortsighted and idiotic a view as
could be adopted in terms of the safety of our society, in terms

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of human rights, in terms of what’s going to happen to those
prisoners.
We’ve also complicated our problems enormously by
throwing huge numbers of the mentally ill into the prison
system. That’s bad enough for those who are mentally ill; it’s
worse for those who are not, given the crowded conditions in
most prisons.
I think much of the violence and other
difficulties in the operation of prisons come from trying to
handle the mentally ill. This is not the place where they ought
to be. Most prisons don’t have the facilities to deal with them,
and we are dealing with them in a very unsatisfactory fashion.
I think good administrators are perfectly willing to be told that,
even to be told this publicly if the people telling them also say
why this is happening and why this approach of dealing with
the mentally ill through the criminal justice system is
unsatisfactory: if they talk about the lack of capacity, and the
lack of funds for dealing with the mentally ill.
One would also hope that oversight could lead to some
further consideration of what prisons are all about. It’s not just
what a small but vocal group would say, it’s not just all about
punishment. Ninety-five per cent of the people in prison are
going to go back at some point into the larger society, to a
society very different from the one that they’ve been in during
imprisonment. Going back home with a chance of success
takes a lot of work, a lot of training, a lot of help, a lot of
supervision, a lot of money. If we expect success from these
former prisoners, it just isn’t fair to throw them back into the
larger society without investing in these things.
If I go back to the days when I was a prisoner of war—
which I don’t pretend for a moment is really comparable with
having been convicted of a crime and being in prison in this
country—I recall two things that were the same in a way and
that certainly affected me.
One was how awful it is to lose your liberty. It’s very hard
if you’ve never lost it to realize really how awful that is. You
might think that being in the army you didn’t have much
liberty anyway and therefore, what’s the difference between
that and being a prisoner of war? It wasn’t true, it wasn’t true
at all, that the loss of liberty on becoming a prisoner didn’t
make a difference. The loss of liberty is something that just
permeates every single bit of you.

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The second thing that I recall from my imprisonment was
boredom. You have to have something to do, you have to get
your mind going, you have to do something physically. If you
want to rehabilitate people, if you just want to keep order in
prison, it seems to me that you have to recognize that boredom
is the biggest enemy that you have.
If you are going to release people you have to give them
some sense that when released they have a chance in the world
outside. In many, many places we are not doing that. It is not
that prison wardens, prison commissioners, and experts don’t
want to do it. The political system is not giving them the funds
to do it. There is somehow a notion that you can throw that
many more people into prison with much longer sentences and
not have the costs go up. Of course, if you don’t have oversight
you won’t be aware of those costs going up. One of the
functions of oversight has got to be to show what is at stake in
these costs: what can’t be cut if safety and order are to be
preserved and if some hope is to be reserved for at least most of
those prisoners when they go out to their future in the outside
world.
There has been a lot of talk here about opening the gates,
opening prisons up, connecting groups and public life outside
with the prisons. I agree that these are wonderful things to do.
It is true that prisoners are never going to get the unqualified
charitable attention that other people get. Nobody’s going to
march for prisoners’ rights. Yet most people if they really
know the situation can be fairly rational about it. I think that
includes politicians. I have faith in the political system. I don’t
think politics gets permanently in the way of good policy—we
can prevent that from happening. Most people who are elected
to office would like to do the right thing. The important thing
is to make sure they have the information to do the right thing.
Beyond this, politicians need to know that there are important
people in society who believe that it’s the right thing, people
who are willing to speak out and say so and give the politicians
some cover for doing it.
It seems to me that we are beginning to get to that point
now with groups like this, and with what the American Bar
Association has been doing. I think we could do even more
with judges. Every state has a judicial conference. There
ought to be a session at every judicial conference dealing with

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the prisons in that state. Judges have a stake in prison
oversight. Judges don’t like the fact that they’ve been given a
lesser role in the running of the criminal justice system as a
result of the greater discretion that has been given to
prosecutors.
Judges should visit prisons. Law students should also visit
prisons, not just the students interested in being prosecutors or
defense attorneys, but all of them, to see what prisons are like
and what is going on in them. I think there are many, many
things of that kind that all of you and the people that you work
with can do.
Those people who have been acting so harshly in the
criminal justice system and demanding harsher punishments
are now, as they always have been, talking loudly. But they
are far fewer in number than they used to be and have far less
support for their views.
By helping build an effective
constituency for enlightened prison oversight, you can do a
great deal to reduce that support further, and I know you will.
Thank you.

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