Setting a Precedent: Comfortable Excuse

Lately the inspiration for these blog articles has come from situations arising from behavior exhibited in classroom exercises or discussions that followed and this one is no different. In another article on this blog I have discussed the Attica prison riot from a negotiation perspective and use it as an exercise (The Big House Case) in The Smart Negotiator!® course. Frequently, for the team representing the State of New York, it is common to hear participants say “we need to be careful not to set a precedent.” Intellectually, I understand what they are saying but in reality what does it mean and how does it affect the outcome?

Wikipedia defines precedent as “establishing a usage, tradition or standard to be followed in the future.” Unfortunately for some negotiators this definition of precedent conveniently translates into “nothing should ever be done for the first time.” Therefore, the word precedent frequently becomes an acceptable rationale not to negotiate. Psychologically, the status quo is a more comfortable place to land no matter how defective it is. Any change to previous decisions or agreements that might resolve the dispute increases the amount of tension and responsibility for the current negotiator. In this particular case, the idea of setting a precedent becomes a self-imposed priority by the negotiators that clouds their vision while diverting their attention from the prize which is creating a quality agreement. Moreover, this type of thinking transfers the responsibility for the outcome of the negotiation to those who preceded them.

What is even more intriguing about the exercise on Attica, is the participants are aware that during November of 1970 at New York’s Auburn State Prison prior to the Attica riot, a request to host a Black Solidarity Day was denied. As a result the inmates staged a protest and eventually took 30 guards hostage. The State negotiated a deal with the inmates to release the hostages unharmed. In exchange the State agreed that there would not be any administrative and/or physical reprisals. As per the agreement, the hostages were released unharmed. However, the State retaliated breaching their part of the agreement by administering physical punishment to the inmates and transferring others to Attica. Did the State set a precedent prior to the Attica riot with this behavior? Was the dye for Attica cast a year earlier at Auburn? The answer would have to be a resounding yes if the negotiators representing the State in the Attica exercise did not want to set a precedent.

In closing, I would like to leave the reader with a final thought. During my tenure as a training professional, I have discovered that in a corporate training environment the participants are very intellectual and say all of the right things. In open discussion participants pay homage to words like inclusiveness, diversity, integrity, relationship building and Ethics as if they are meaningful. However, as an instructor I can’t make the mistake to assume this is the way they act when placed in real-life situations that require them to follow these articulated principles. Too often I have witnessed well-educated professional people when placed in a real-life scenario like the Attica case exhibit a complete breach of professional discipline. It is very disappointing to discover when “the money is on the table” they are more likely to follow their most primitive instincts employing the use of power and threats to shape a deal. Unfortunately, by proclaiming ” we need to be careful not to set a precedent” they are afforded this opportunity.

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Attica: A Deal Not Made

A Smart Negotiator clearly identifies the needs and wants of all parties involved in the deal, while staying true to the distinction between the two entities throughout the entire negotiation process.  By establishing the needs of all parties, the negotiator creates the foundation on which the deal is constructed.  Forty years ago, the line between needs and wants became blurred during negotiations to resolve a crisis at New York’s Attica Correctional Facility, contributing to a stalemate between the prisoners and the state that would eventually leave 39 people dead.

On September 9^th, 1971 approximately 1200 inmates overran “Times Square”, the central intersection at the heart of the state prison in Attica and took control of D-Block.  38 guards and civilian employees were taken hostage. Three guards were beaten in the initial fracas, one of which would die of his wounds 2 days later. 

The root causes of the uprising were overcrowding, racism and poor living conditions.  Attica was designed to handle a maximum of 1600 inmates.  At the time of the uprising, however, Attica was home to over 2200 prisoners.  Approximately 75% of the inmate population was African-American or Hispanic, while 100% of the guards were white males. The prisoners wanted a more culturally diverse guard population to reduce the overt racism within the prison.  Living conditions were better at the Buffalo Zoo.  For instance, prisoners were only allowed one shower per week, one roll of toilet paper per month, pork was part of every meal and Muslim inmates were not allowed to hold religious services.

On the first day of the takeover, inmates created a council to negotiate a settlement with prison officials. Because of a credibility gap between prison officials and inmates, the prisoners also called upon a select group to “oversee” the negotiations and “verify” events.  This group included members of Congress, the New York State legislature, the Black Panther Party, the media and lawyers.  William Kunstler, “Brother Bill” as he was known to the inmates, was asked to represent the prisoners regarding legal issues and began serving as a mediator to try to broker an agreement. The inmates created a list of 31 demands to be addressed to resolve this crisis.  The Corrections Commissioner, Russell G. Oswald agreed to 28 of the 31 demands, most of which were already supported by state and federal law, but had been ignored by unofficial prison policy.   The initial 28 demands dealt primarily with living conditions. The 29^th demand for “transportation to a non-imperialistic country for everyone in D-yard” was quickly dismissed by both parties.   The last two demands were more difficult. 

Demand #30 called for Superintendent Mancusi to be removed from his position immediately.  The prisoners wanted Mancusi replaced immediately with someone who would treat them like people, not animals.  The prisoners personalized this issue, which clouded their vision and left no flexibility to resolving it.  With the other 28 demands that dealt with living conditions having already been met, the prisoners’ needs in this area had been addressed.  The Mancusi issue, a want, could have been treated administratively by promotion or retirement at a later date. However, the shelf-life on any promise or agreement to satisfy this want needed to be longer than the immediacy of the moment. Since it was clearly a want, it didn’t warrant the significance that it was given.  As a result, this want was treated like a need and became a manufactured obstacle to reaching a final agreement.

Demand #31 demanded complete amnesty for everyone in D-yard.  The inmates knew the law. Once one of the guards died from wounds suffered in the initial takeover, it was clear that everyone in D-yard could be charged with felony murder.  Moreover, anyone in D-yard already serving a life sentence could now be subjected to the death penalty.  Realizing that someone would have to be prosecuted, the inmates didn’t want everyone in D-yard to be charged with felony murder.  From a negotiator’s standpoint, the inmates needed some protection from blanket prosecution for the prisoners. Concurrently, the state had a need to prosecute those responsible for the guard’s death.  In this case, the inmates lacked the sophisticated vision of a negotiator. They took a very myopic view and didn’t explore any other options except the binary position of complete amnesty for everyone.  This inflexible position became problematic, as again, it was a want, not a need.  Ironically, William Kunstler “saw” what was transpiring inside D-yard regarding this issue.  However, his vision also became clouded, either by his idealism or the drama of the situation, creating a disconnection from the reality of potential consequences.  This momentary lapse of discipline caused him to take his eye off of the prize, leaving this demand frozen in time as an obstacle to the deal.

Another level of complexity contributing to this situation is recognizing ALL parties involved in the negotiation, even if they are not physically present.  In this case, the absentee Governor of New York State, Nelson Rockefeller, was a major player.  Although the Governor was party to the negotiations from a distance, he had needs that had to be fulfilled as well. From a negotiator’s perspective, extending the deadline would have been very beneficial to all and may have produced workarounds for demands 30 and 31.  However, the Governor controlled the deadline and there was no flexibility. Nelson Rockefeller had a need to protect his political image. He was in the process of putting together his campaign for the 1972 Presidential election and had been criticized by the right wing of the Republican Party for being on the “liberal” side.  Therefore, anything short of an immediate end to the situation would be devastating to his political image.  Consequently, re-taking the prison in a timely manner, even if it turned into a bloodbath, was a political need.  The Governor could not risk being seen as soft on crime.  A brutal re-taking of the prison may not necessarily be viewed as a negative and may even enhance his image in the eyes of the electorate. William Kunstler didn’t recognize the selfishness of the Governor’s needs and was surprised on Monday morning September 13^th, 1971 when New York State Troopers took control of D-yard firing over 2000 rounds of ammunition and killing 39 people (29 inmates and 10 guards). As many as 83 other prisoners were injured seriously enough to require surgery.  After the shooting stopped, Governor Rockefeller publicly praised the State Police for a “superb job.” 

There are many lessons to be learned from Attica on a variety of levels.  From a negotiations perspective, negotiators must demonstrate a genuine commitment to a deal that satisfies the needs of all parties. In this case, the negotiation process broke down when wants were confused with needs and the needs of one party were privileged over all others. The tragic situation at Attica State Prison was certainly not caused by negotiators, but could have been resolved peacefully, if everyone involved had acted like one!