The Supreme Court has let us off the hook again.
I don’t really think we’re cruel people. But the evidence again proves me wrong.
The Supreme Court, in its 8-1 decision in Kansas v. Carr did not rule on a landmark Death Penalty case. It is only landmark for those three persons on death row who are now set to be executed. And it is certainly landmark for their families and friends and advocates. It would be Landmark in those ways that any of us would hope for justice and vindication at the hands of the powerful only to see them squashed under the boot of cruelty.
For the rest of us, it seems so small; easily overlooked.
Words, semantics is all, really.
But as with every death penalty case, there are lives on the line. In a court, words matter. And this is where I start to lose it.
Of course I can get the idea that the Supreme Court perhaps does not want to weigh in on a case or does not want to restrict state or federal laws. I get the values of the Supreme Court (for the most part).
I don’t understand how the Court could strike down clarity in communication when it comes to the courtroom.
In the case before the court, Kansas v. Carr, what was at stake for the defendants was life and death. What was at stake for every defendant in the future was a law which ensured that juries deciding the merits of their case would be properly informed by the bench.
Mark Joseph Stern explains for Slate what was at issue in this case:
Kansas v. Carr, as the case is called, involved two procedural protections crafted by the Kansas Supreme Court. The first protection revolved around “mitigating factors,” which a capital defendant may put forward to persuade a jury not to sentence him to death. Under the Eighth Amendment, capital defendants hold a right to present such mitigating factors to the jury. In Kansas, these factors need only have been presented to juries, not proved beyond a reasonable doubt, like the actual guilt of a defendant. The Kansas Supreme Court found that trial judges must inform juries of this fact, lest jurors fault defendants for not proving mitigating factors beyond a reasonable doubt, as they expected prosecutors to do to demonstrate guilt. But Scalia reversed that decision, holding that mitigation is “largely a judgment call (or perhaps a value call)” involving “a question of mercy”’—not a factual finding. Because mitigation is so abstract and value-laden, Scalia wrote, courts need not assign any particular standard of proof to mitigating factors.
So the Court’s response included the removal of this essential communication and instruction to the jury. And potentially endangers any other such attempts to protect defendants and make proceedings more just.
This is deeply troubling to me, particularly in light of both the gravity of the cases in which this applies, but also the depth of cynicism required to object to properly instructed juries. Or to place this standard, not in the hands of the court, but on defenses to argue for something that is not theirs to argue.
There is only one word that comes to mind: cruel.
This to me is cruel.
The court chose to be cruel rather than clear. It chose to be a place in which those who enter in can expect to find cruelty rather than clarity.
And it convinces me all the more that the 8th Amendment applies to the whole endeavor. Capital Punishment is as cruel and unusual as ever. Perhaps more than ever. Because we are no longer speaking of individual cases and individual persons who are receiving some sort of punishment in a demonstrably objective system. We are speaking to Courts who are willing to overlook the technicalities and the injustices to extradite a more obvious result. And we have justices who don’t see the problem.
We are willing to make it easier to kill people because we accept that juries can and perhaps should be ill-informed.
And now they removed a simple protection that helps ensure that justice may be served and that our system may be fair and honest.
Last June the Supreme Court made a more audacious decision. In Glossip v. Gross, the court not only found a drug cocktail that was burning people’s insides was somehow not a violation of the 8th Amendment (by a 5-4 decision), they endorsed the cruelty. In Justice Samuel Alito’s defense, his argument seems to suggest that the state’s right to capital punishment supersedes the 8th Amendment to the Constitution. If a state wants to kill someone, the 8th Amendment can’t stop them. That person has to die. In writing the opinion, Alito overturned two centuries of jurisprudence for what?
Cruel and Cynical
If we are to balance our entire judicial system upon a simple phrase: “cruel and unusual punishment”: I beg us to pay attention to the more significant word “cruel”.
For cruel is not about being extreme. We can’t be a people who judge this on a sliding scale of cruelty at the intersection of the most unusual circumstances. As if the phrase “cruel and unusual” speaks to only the worst, most inhumane tortures. But the 8th Amendment, like the rest of our laws, is meant to demonstrate the best of our character.
And yet cruel is not so unusual. Cruel is all too common.
Cruel is leaving people out in the cold.
Cruel is eating a 20 oz. steak in front of the hungry.
Cruel is lavishing gifts upon the wealthy while the poor are left with nothing.
Cruel is abusing children, the mentally ill, or anyone we can seduce or overpower.
Cruel isn’t just torture. Cruelty cannot be justified as a reasonable response to evil. Cruel is itself an expression of evil. Cruel is an expression of cynicism. Cruel is incompatible with faith.
Cruel is leaving people to rot in isolation, causing emotional damage in even short stays. It doesn’t take weeks and months of solitary confinement to do lasting emotional damage to people. It can take a matter of hours.
Cruel is placing a greater priority on our own needs without considering the needs of our neighbors. Without respecting who they are and from where they grow up. Or the challenges they face.
We can be so cruel. And there is nothing more cruel than exacting revenge upon the already incarcerated, the already punished. There is nothing more cruel than stealing their very lives for any reason. That is the height of cruelty.
But we compound our cruelty by making a mockery of justice, placing our fingers on the scales to ensure someone gets punished. Or when we ensure that people have no recourse for defense and strip their opportunity to produce new evidence. Or when we grease the wheels of justice to spin so very fast that we can get to the punishment already. Who needs to even prove it? Let’s just get to the killing. we reason.
We pile on the cruelty. And that’s just in the system. This isn’t speaking to the cruelty of the media. The cruelty of the public. The cruelty of our legislators and our governors. The cruelty of the systems which care more for punishment than for truth, more for reelections than for fair proceedings.
And the cruelest of all, is that we have heard for generations the cries for help. Those desperate cries from the victims of systemic cruelty, of racial punishment, economic punishment, gender punishment. Victims of cruel hiring practices. Cruel labor laws. Cruel working conditions. Victims of cruel systems of education. Cruel social stratification. Cruel suppression of voting rights.
In an age of such vivid injustice and rampant cruelty, what did we spend the second half of 2015 arguing about? Whether or not to give refugees safety from death and whether or not to take basic measures to help curb gun violence and suicide.
This year we literally argued over whether or not to save lives and protect the vulnerable.
I know that we don’t wish to be so cruel. But I’m ashamed. We are irredeemably cruel.
Lord have mercy.
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