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.