“A Relic Of Frontier Barbarism:” The Case Of Scott Panetti — And The True Meaning Of ‘Cruel And Unusual’
So what does “cruel and unusual” mean?
I once asked that of a law professor. The Eighth Amendment prohibits “cruel and unusual” punishment, but I figured there had to be some technical definition I, as a layperson, was missing. I mean, from where I sit, it’s pretty “cruel and unusual” to execute someone, but to judge from the 1,392 executions of the last 38 years, that isn’t the case.
Scott Panetti almost became number 1,393 last week, but within hours of his scheduled lethal injection, he was reprieved by a federal judge. The court said it needs more time to consider the issues his case raises.
In a rational place, it would not be news that Panetti was not killed. In a rational place, they would understand that state-sanctioned execution is a relic of frontier barbarism that leaves us all wet with the blood of the damned. In a rational place, they would say there’s something especially repugnant about applying that grisly sanction to the mentally ill, like Panetti.
But Panetti doesn’t live in a rational place. He lives in America. Worse, he lives in Texas.
They love their executions in Rick Perry’s kingdom. Since 1976, according to the Death Penalty Information Center, an advocacy group, that state has killed almost 520 people. That’s nearly five times more than the next bloodiest state, Oklahoma, with 111.
There is no question Panetti deserves punishment. In 1992, he shot his estranged wife’s parents to death as she and the couple’s daughter looked on. He held them both hostage before releasing them unharmed.
But there is also no question that Panetti, 56, suffers from severe mental illness. At his trial, in which he was somehow, bizarrely, allowed to represent himself, he wore a purple cowboy suit with a 10-gallon hat and summoned a personality he called “Sarge” to explain what happened on the fateful day. His witness list included 200 people. Among them: John F. Kennedy, the pope, Anne Bancroft and Jesus Christ.
The state contends that Panetti, who was off his meds at the time of the killing, is faking it. During a 2004 hearing, the county sheriff called him “the best actor there is.” In its most recent filings, Texas accuses him of “grossly exaggerating” his symptoms.
If it’s an act, it’s been going on a long time. His attorneys say Panetti was diagnosed with schizophrenia 14 years before the shootings and was hospitalized 13 times between 1978 and 1991. Now a court decides on his life or death.
It’s a pregnant decision in a country where, apparently, it isn’t “cruel and unusual” to preside, as Arkansas Gov. Bill Clinton did, over the execution of a man so profoundly impaired that he saved the pie from his last meal to eat later. Or to let a man gasp and snort for almost two hours as a lethal injection very slowly killed him, as happened in Arizona. Or to set a man on fire, as has happened at least twice in Florida’s electric chair. Or to execute people for crimes committed when they were children. Or to send innocent people to death row. Or to choose whom to execute based on color of killer, color of victim, gender, geography and class.
So what, exactly, might be too cruel and unusual for us to allow? The professor could not answer. Which, of course, is an answer.
As flawed and broken as our system of death is, we continue to embrace the puritanical morality of eye for eye and blood for blood. Most of the western world has left this savagery behind, but we insist on it, leaving us isolated from our national peers, those nations whose values are most like ours, but looming large among the outlaw likes of Somalia and Iran.
Now we are debating whether to kill a man so addled he tried to subpoena Jesus. And that leads to a conclusion as painful as it is unavoidable:
What’s “cruel and unusual” is us.
By: Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, December 8, 2014
“Where Anger And Fear Have Brought Us”: Children Are Children, No Matter Their Race Or Ethnicity
Darren Wilson made if very plain in his testimony before the grand jury that he was afraid of Michael Brown. As a matter of fact, his entire case is based on whether or not people believe that to be true. We also know that the officers who shot and killed 12 year-old Tamir Rice assumed that he was about 20 years old.
This is all part of a pattern that was recently the subject of research published by the American Psychological Association.
Black boys as young as 10 may not be viewed in the same light of childhood innocence as their white peers, but are instead more likely to be mistaken as older, be perceived as guilty and face police violence if accused of a crime, according to new research.
Beyond the Michael Brown’s and Tamir Rice’s, those assumptions also lead to this:
Fourteen states have no minimum age for trying children as adults. Children as young as eight have been prosecuted as adults. Some states set the minimum age at 10, 12, or 13…
Some 10,000 children are housed in adult jails and prisons on any given day in America. Children are five times more likely to be sexually assaulted in adult prisons than in juvenile facilities and face increased risk of suicide.
Whether they are being shot on the street, tried as adults, or locked up in adult prisons, Jonathan Capehart is right.
In America, black children are just that, children. It’s a damned shame people’s fears and prejudices blinds them to that fact. It’s a crying shame black kids must suffer because of it.
A lot of people are thinking that the one area where bipartisanship is possible in the next Congress is on criminal justice reform. But anything meaningful in that arena has to include the premise that children are children – no matter their race or ethnicity. A system that fails to treat them as such can never call itself “just.”
Bryan Stevenson, founder and director of the Equal Justice Initiative, brings it all together when he says that these kinds of policies are the result of “a political vision that is fueled by fear and sustained by anger.” He echoes President Obama in suggesting that we have to find a “voice of hopefulness to turn these things around.”
By: Nancy LeTourneau, Political Animal, The Washington Monthly, December 6, 2014
“The Only Way To End Police Violence”: Convince Americans That Their Lives Truly Matter
Here’s something one is not supposed to say at a time like this, but it’s true and we all know it’s true, so let’s say it: There will be more Eric Garners; more Michael Browns. There will be, it’s sad to say, piles more of these dead, black, male bodies, and dozens or hundreds more white police officers walking away from the inconvenience of having added to the pile, for the simple and obvious reason that our political system and our culture have neither the will nor the capacity to ensure that there won’t be.
This is also usually when we pause to take note of the great racial progress we’ve made in this country over the last two generations, while adding dutifully and ruefully that there is still much more to do. We’ve made progress for sure. But on the criminal justice front, we’ve gone backwards. The harsh sentencing laws passed from the 1970s through the 1990s have seen to it that one out of three black men in America will do some jail time at some point in his life. If Putin did that with one of his ethnic minorities, we’d be calling him a greater monster than Stalin.
The dollar value of a statistical life in the United States is purported to be around $5 million. That’s what safety analysts say. Of course that dollar value, callous as it may seem, is based on certain inputs—a person’s education, her earnings, her contributions to community and society. But if that’s the average, what’s a young black male life worth in the United States? Is it worth $1 million? Maybe $500,000? Michael Brown’s was apparently worth something closer to zero.
This is not going to change in America, at least for many, many years. Ask yourself: What would it take, really, for your average white cop not to see your average black male young adult as a potential threat? Because we can pass all the ex-post facto laws we want, and we can even convict the occasional police officer, which does happen from time to time. But that’s not where the problem starts. The problem starts in that instant of electric mistrust when the cop reaches for his gun, or employs a homicidal chokehold. That moment is beyond the reach of legislation, or of any punishment that arrives after the fact.
So to answer the question of what it would take—well, cops will make different and less deadly decisions in those fateful moments when they no longer reflexively see black males as a priori threatening figures. But there’s so much history and cultural DNA threaded into that reflex that it’s hard to see how it can change.
Which is not to say that we shouldn’t try things. But to me, we should be putting a lot more emphasis on the front end than the back end; that is, on prevention more than punishment. By which I mean, for example, the training, education, and screening of white cops who will be dealing regularly with black citizens.
Back when I was writing about New York City, I once participated in a public forum where I was one of the journalists questioning then-Police Commissioner Howard Safir. One of those big incidents—Abner Louima, Amadou Diallo, Patrick Dorismond, I can’t remember which, and they happened every few months—had recently taken place. Others asked Safir about after-the-fact approaches—a stronger civilian complaint review board, for example, which had been kicking around at the time, or steeper departmental penalties.
I went in a different direction. I asked Safir whether the NYPD did any kind of racial screening of police academy hopefuls; any battery of psychological tests, say, designed to identify and weed out the potential bad seeds? He didn’t say yes. But he didn’t say no, either. He had no idea! The commissioner—no idea how or whether applicants were screened for racial biases. Now, I don’t know whether any such testing goes on today, but if it doesn’t, it should.
We could also try more integrated police forces. Things are better on that score in many cities than they were 30 years ago, but still woefully out of balance, especially in a city like Ferguson. So there are a few things we can do to try to prevent these tragedies.
But I doubt the political will exists for anything beyond the most transparently cosmetic changes, and at bottom the will is not there because not enough value is attached in American society to young black male lives. If more were, society would never stand for this. If someone out there with a passion for this issue and a couple billion dollars wants to work on a project, maybe it’s just this: Show Americans that young black men don’t have to be either hoodlums or rappers or occasionally actors, that they are just like young white men in their infinite variety, goodness, badness, talent, mediocrity, and decency. When they become simply human to the rest of America, that’s when America will do something to lessen the pile.
By: Michael Tomasky, The Daily Beast, December 5, 2014
“Two Grand Juries, The Same Disappointing Result”: The Criminal Justice System Is One Of The Last Bastions Of Blatant Racism
No expressions of sympathy or regret can resurrect Eric Garner, the New York City man killed by police in July. Garner died after an officer placed him in what appears to be a chokehold during an arrest for allegedly selling untaxed cigarettes, an offense not usually regarded as a capital crime.
But, at the very least, officer Daniel Pantaleo (or his representatives) showed a spark of decency after a Staten Island grand jury decided not to indict him for any crime. “I feel very bad about the death of Mr. Garner,” he said in a statement. “My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss.”
That’s just one contrast to events in Ferguson, Missouri, where Officer Darren Wilson showed no hint of sympathy for teenager Michael Brown or his family. “I don’t think it’s haunting. It’s always going to be something that happened,” Wilson said in a televised interview.
There were other equally stark contrasts. While Brown’s response to Wilson will always be the subject of dispute, bystanders recorded video of Garner’s arrest and posted it on the Internet, where it went viral. There is no disputing Garner’s tragic last words as Pantaleo’s arm lingers around his neck: “I can’t breathe. I can’t breathe.” Even Fox News’ bellicose Bill O’Reilly was moved to observe that Garner “didn’t deserve what happened to him.”
But the greatest contrast between the deaths of Garner and Brown may have been in the reactions of elected and civic leaders. Backed by its politicians, Ferguson’s police force responded to criticism of Brown’s death with excuses, equivocation and armored personnel carriers.
In New York City, Mayor Bill de Blasio took to the podium to express sympathy for Garner’s loved ones, and equally important, a simple shared humanity. Compassion. Understanding. Empathy. “This is now a national moment of grief, a national moment of pain,” he said. Members of Congress — liberals and conservatives, Republicans and Democrats — joined to criticize the grand jury’s decision.
That matters. All citizens, regardless of color or creed or religion, want to believe that the people who govern them share their fears, their hopes, their aspirations. Or, at the very least, that their leaders can understand their frustrations.
Even now, that’s not always the case in the United States, especially when it comes to law and order. The criminal justice system is one of the last bastions of blatant racism, a tangled net of explicit prejudices and implicit biases, of rank stereotypes and unfair perceptions, a web that ensnares black men disproportionately. Countless studies conducted by experts have borne out the view held by so many black Americans: We do not stand equally before the bar of justice.
Black motorists are subjected to more traffic stops than white drivers. Black men and women are arrested more often for drug offenses, even though we are no more likely to be drug users than whites. And the use of the death penalty tilts against black defendants and devalues black lives: It is more likely to be meted out if the victim is not white.
Has there been progress? Of course there has. The nation’s top law enforcement official, the attorney general, is a black man. But the nation’s criminal justice system started out in a hellishly low place — where officials were complicit in lynchings, where the wealthy extracted unpaid labor from black men by having them arrested, where black crime victims were ignored. De Blasio referred to that unfortunate history: “We’re not dealing with years of racism leading up to it, or decades of racism — we are dealing with centuries of racism that have brought us to this day.”
For all the striking contrasts between the reactions to the deaths of Brown and Garner, there was one stunning consistency: Grand juries saw no evidence of wrongdoing by a white police officer who killed an unarmed black man. Bear in mind that a New York City medical examiner, citing “compression of his chest and prone position,” ruled Garner’s death a homicide. Still, a Staten Island grand jury found nothing to suggest that Pantaleo committed any criminal offense.
Some things haven’t changed at all.
By: Cynthia Tucker, Visiting Professor, The University of Georgia, School of Journalism; The National Memo, December 6, 2014
“Broken Windows Policing”: Eric Garner Was Choked To Death For Selling Loosies
The controversial deaths of African Americans Michael Brown in Ferguson and Eric Garner in Staten Island at the hands of white police officers don’t just speak to racial divides and raise questions of discriminatory law enforcement in America.
In very different but related ways, they raise fundamental questions irrespective of race about how policing gets done. Unless we want to subject ourselves to endless repeats of similarly tragic events, we need to confront and work through both the militarization of police and commitments to so-called broken windows policing.
In August, Brown was shot and killed during a struggle with Ferguson Police Officer Darren Wilson, who was ultimately not indicted by a grand jury. Whatever else you can say about the case, it was the ham-fisted overreaction to protests by the Ferguson and St. Louis County police forces and the Missouri National Guard that catapulted the story to prominence. The Ferguson story captured the national conversation because it showcased the ubiquitous militarization of police that has been proceeding apace, often with the help of liberal politicians, during the past 40 or more years.
Indeed, just earlier this week, four members of the Congressional Black Caucus made a “hands up” gesture on the House floor to show solidarity with Brown and Ferguson protesters. Yet each of the members who raised their hands—Yvette Clarke, Al Green, Sheila Jackson Lee, and Hakeem Jeffries, liberal Democrats all—voted against “an amendment in June that would’ve limited the transfer of military equipment from the Department of Defense to local police agencies.”
Similarly, Garner’s death in July after being placed in a chokehold is not simply about race. It’s about community policing and the ability of top brass to enforce restrictions on beat cops’ behavior. As cell phone footage of the incident makes clear, the police approached the 43-year-old Garner after he had helped to break up a fight on a busy street in Staten Island. The cops were less interested in the fight than in asking Garner whether he was selling loose cigarettes or “loosies,” which is illegal. “Every time you see me, you wanna arrest me,” says Garner, who had a rap sheet for selling loosies and was in fact out on bail when confronted.
Footage of the incident shows New York Police Department Officer Daniel Pantaleo placing Garner in the chokehold that was the main cause of death according to the coroner, who further ruled the death a “homicide.” (Police at the scene initially claimed that the asthmatic, 350-pound Garner had suffered a heart attack). Like Wilson, Pantaleo was not indicted.
Why were the cops so hell-bent on stamping out the sales of loosies, which typically sell for 75 cents a pop in Staten Island (and two times or more that in Manhattan)? New York City boasts the highest cost for cigarettes in the nation, with a pack ranging anywhere from $12 and up. The city lays its own taxes on top of the state’s, in an effort both to raise revenue and discourage use of tobacco.
The result is a thriving market in sales of loosies and black-market cigarettes more generally (for a fascinating look of how the market in loosies operates, check out this 2007 study published by the National Institutes for Health). Since 2006, the tax on cigarettes in New York have risen 190 percent and cigarette smuggling has risen by 59 percent, writes Lawrence J. McQuillan of the Independent Institute. Whether it’s liquor, drugs, or cigarettes, when you try to stamp out something consenting adults want, you cause as many or more problems as you ameliorate.
Stretching back to the Rudy Giuliani years, the NYPD has been committed to “broken windows” policing, which focuses on stamping out misdemeanor offenses and “quality of life” issues such as graffiti that proponents say lead to more serious crime. “Murder and graffiti are two vastly different crimes,” Giuliani argued in the 1990s, “but they are part of the same continuum, and a climate that tolerates one is more likely to tolerate the other.”
Last January, the city passed stronger penalties for selling loosies and other illegal cigarettes and in early July, reports the Daily News. The NYPD’s Chief of Department, Philip Banks, specifically called for crackdowns on loosie sales in Staten Island. “Among the specific public complaints of illegal activity in that area included the sale of untaxed cigarettes as well as open (alcohol) container and marijuana use and sale offenses,” an NYPD spokesman told the News.
Police Commissioner William Bratton introduced broken windows policing to the NYPD when he was first hired by then-Mayor Rudy Giuliani in 1993, and he is continuing its use while serving under current Mayor Bill de Blasio. But just as the response to Ferguson protests raised questions about the sagacity of outfitting local cops with military grade weapons and gear, the death of Garner and other non-violent suspects is forcing a debate over broken windows. “I don’t think it’s a necessary police tactic,” City Councilman Andy King told the News. Councilwoman Inez Barron argued that “such enforcement ‘leads to confrontations like this [one].’”
As in most cases involving social science and broad cultural trends, supporters and critics of broken windows policing can marshal seemingly irrefutable evidence in favor of their position. There’s little question that New Yorkers support arrests for low-level offenses. A Quinnipiac Poll of New Yorkers in August found that 60 percent of respondents agreed that “when a cop enforces some low-level offense…it improve[s] quality of life.” Only 34 percent said it increased neighborhood tensions, with “very little difference among black and white voters.”
Yet clearly something has gone horribly wrong when a man lies dead after being confronted for selling cigarettes to willing buyers. Especially since, as even Bratton has acknowledged, the chokehold applied by the restraining officer is prohibited by the NYPD’s own rulebook. Does the commissioner really control his officers, and is it time to rethink nanny state policies that create flourishing underground markets?
The conversation over the militarization of police started by Ferguson is well under way and has already yielded real change: In the name of transparency, more police departments and the federal government are calling for the use of wearable body cameras that will at least capture parts of confrontations like the one that ended in Michael Brown’s death.
It’s past time to have that same sort of open conversation about broken windows policing. It’s safe to say that noboby thinks selling loosies is a capital offense, but if the police cause the death of a man they are taking into custody by using chokeholds, things get pretty murky very fast.
By: Nick Gillespie, The Daily Beast, December 3, 2014
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