House of Eratosthenes

The less-famous counter to Tookie Williams has now been executed. I associate Clarence Ray Allen to Stanley “Tookie” Williams for a number of reasons:

He was executed;
He was executed in my state, which is known for finding silly pussified reasons to avoid executing people who need executing;
He was executed for ordering the murder of innocent people, with whom he had no beef, save for his narcissistic mission of eradicating witnesses.

Of course there are two things that make Allen substantially different from Williams. He was a Choctaw Indian, not a black man, and because he’s ineligible for the protections offered by certain advocacy groups, we haven’t been hearing his name lately even in the final hours before he stopped being the oldest prisoner on Death Row.

So there’s something that’s busted right there. The law, which I hold to have worked here just fine and dandy (albeit slowly), shows signs of having worked just fine and dandy because in the final analysis Williams and Allen were treated pretty much the same. The court of public opinion, or at least the chattering that goes on when said court is in session, is terribly diseased, disfunctional and wombat-rabies crazy. Assuming that Tookie Williams was a victim of cruel and unusual punishment, and therefore his case is a legitimate target of outrage, you would have to grant that Allen’s case is an equally legitimate target of outrage. A legitimate target of outrage is a compulsory target of outrage, since the outrage is based on moral indignation — so where is the outcry?

There’s no outcry here, for either one of these psychotics. Homicide, for the express purpose of eliminating witnesses, manifests a pressing danger to the innocent like no other brand of homicide possibly can. You catch a guy in bed with your wife and blow them both away with a shotgun, you’ll probably be entitled to certain protections and you’ll probably be allowed to plead mitigating circumstances. For the purpose of determining the residual danger you present to society by your continued existence, you probably should be entitled to these protections…maybe.

But reasonable people of all ideological stripes should be able to agree that this argument does not, and cannot, apply to a murderer who murders simply to get rid of witnesses.

Now, I don’t mean to imply that nobody has been talking about Clarence Allen. Since I live in the state where he was incarcerated, I’ve been able to read up about it. Allen, you see, was convicted for a handful of murders in 1980 — said murders winding up a string of tying-up-of-loose-ends from a robbery he and his son had committed six years earlier. He ordered the murder of a woman who was involved in his 1974 robbery, and then he got busted conspiring in her murder. He got LWOP’d for that (life without possibility of parole), and continued to conspire to eliminate witnesses, which is how the 1980 murders came about.

This should be talked about a lot more than it is. How many times have we heard the argument “so and so shouldn’t be executed because he represents no danger to society…he’s locked up…he’ll never get out, never, never, not ever.” We heard it a lot with Tookie Williams’ case. We’ll hear it again with other cases involving the stripped-gear set. Many times. But Clarence Ray Allen proved that this may not mean very much. While his heart kept beating, people-at-large were in danger. It’s about as simple as that.

But now we come to the part that really disturbs me — especially now, debating as intensely as we have been debating it lately, what it takes to “qualify” an Associate Supreme Court Justice to sit on our nation’s highest court. Unlike what I recounted above, you can read this anywhere, in any story that mentions a mere paragraph or two about Clarence Allen’s sordid tale.

Supreme Court Justice Stephen Breyer issued a dissenting statement, citing Allen’s age, bad health and the fact he had been on death row for 23 years as reasons to stay the execution.

“I believe that in the circumstances he raises a significant question as to whether his execution would constitute cruel and unusual punishment. I would grant the application for stay,” Breyer said.

Findlaw has captured a more complete quotation of what Breyer said (at this time, I cannot find the actual dissent document or the case number).

…Justice Stephen Breyer filed a dissent, saying: “Petitioner is 76 years old, blind, suffers from diabetes and is confined to a wheelchair, and has been on death row for 23 years. I believe that in the circumstances he raises a significant question as to whether his execution would constitute cruel and unusual punishment. I would grant the application for stay.”

Now, this is a very strange way for a Supreme Court Justice to announce his resignation, I must say. That is what Justice Breyer is doing here, is it not? After all, when the Supreme Court meddles in the God-given right of the people to protect themselves from the stripped-gear set, they derive their authority to do such meddling from one thing and one thing only: that the punishment needed to enforce this protection would show an irreonciliable inconsistency with the United States Constitution those justices have sworn to uphold and protect.

Breyer is asserting, here, that the execution of Clarence Allen violated the Eighth Amendment’s cruel-and-unusual clause — or, at least, that there is a lingering problematic question of whether there was a violation. Except he isn’t saying what a Justice would say if he really believed that.

Anyone believing what Stephen Breyer says he believes, would have to confer upon Allen the benefit of any doubt regarding the applicability of the Eighth Amendment. You’re sitting on the Supreme Court, you are approached by counsel for Allen saying “this execution would be cruel and/or unusual” — maybe it is, maybe it isn’t. Breyer says there is “question,” so there’s question. You don’t know. Clarence Allen deserves to be spared at least until the intricate details can be hashed out.

So you’d say you dissent from the majority opinion of the court, because the question of conformity with the Constitution is unacceptable. You would hold it to be your duty to grant the petition. My point is that if it is your duty, it is also the duty of the other eight justices. The Supreme Court failed to uphold its sworn obligation. You would believe this — because if you did not, then you would necessarily doubt your authority to hold up the execution.

How serious would that be?

Serious enough to entirely eclipse issues involving you, Clarence Ray Allen, or any one person. The Supreme Court is not on the job! That’s what you would have to talk about. So you wouldn’t say “I would grant the application for stay.” It’s not about you. Therefore, it’s my opinion this isn’t what’s on Justice Breyer’s mind. What he’s doing, is looking for an occasion by which he can manifest his sympathy. He isn’t applying logic to figure out if something’s going on that is inconsistent with the protections provided in the Constitution.

After all, if he were doing the latter instead of the former, what is it that does the trick, Justice Breyer? You cite the petitioner’s age of 76 years; his being blind; his diabetes; his use of a wheelchair; and his being on death row for a long time. What arouses the question? All of these factors? Some of them? One of them?

A caller to Armstrong & Getty made a great point a few minutes ago about this “blind” thing. Quoting from the San Francisco Chronicle article about Allen’s final minutes before the execution:

He was a burly man, but when he put his thin arms on the sides of the gurney, he had little difficulty hoisting himself up and laying flat. And once he’d been strapped down and fit with the needles that would inject poisons into his tattooed arms, he vigorously craned his head and made eye contact with several people in the room. [emphasis mine]

He smiled broadly, calling out first, “Where are you?” and then, “I love you,” as he raised his head several times to gaze at his former daughter-in-law, Kathy Allen, and four other supporters who came to watch him die. They smiled back, and when one of the women waved, he nodded his head.

What’s this deal about “eye contact”? We just had a sitting Supreme Court justice comment that his case should have been heard in the nation’s highest court because, or partially because, the dude is blind. Now, granting that Allen appeared to have trouble seeing if he has to ask where people were — how blind was he?

How blind does he have to be, anyway? There are a lot of people who, like me, don’t understand the argument.

Some guy with 20/20 vision blows you away with a shotgun (or orders your hit) — I want that guy dead.

Some blind guy does the same thing — I want him just as dead.

Not sure where Breyer was going with this. But it seems definite that he doesn’t have the stomach for doing what needs to be done in his office. His argument, as I read the excerpts provided to me, as an “Aw geez, c’mon” argument. There is no room for such thinking in the high office occupied by Justice Breyer. He should go.

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Unfit For The GavelTuesday, January 17th, 2006

Unfit For The Gavel
Tuesday, January 17th, 2006