CLARENCE THE CRUEL remains unusual. Two days before President Bush said Saddam Hussein has brought Iraq ''nothing but war and misery and torture,'' Justice Clarence Thomas again abandoned the entire Supreme Court to defend miserable prosecutions and torturous treatment of prisoners. Thomas has clearly declared his own private war, with no concern for collateral damage.
In an 8-1 ruling, the court found that state and federal courts ignored evidence that prosecutors used peremptory strikes to eliminate 10 of 11 potential black jurors in a death penalty case involving a black defendant. Their finding will allow Thomas Miller-El, convicted in 1986 of killing a hotel clerk in a robbery, another chance to challenge his sentence in federal appeals court.
In writing for the majority, Justice Anthony Kennedy cited the fact that prosecutors used their peremptory strikes so sweepingly for black jurors while using them for only four of 31 nonblack jurors. Kennedy noted the fact that black jurors were grilled in much more graphic ways than nonblack jurors about the proposed execution of Miller-El. Prosecutors also suspiciously used a ''jury shuffle'' to remove potential black jurors from the front seats of the pool.
''Happenstance is unlikely to produce this disparity,'' Kennedy wrote.
Kennedy found relevant the sordid history of Dallas County, which had a reputation for excluding African-Americans from juries. The reputation is encapsulated in a 1963 circular from the district attorney's office that told prosecutors, ''Do not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or how educated.''
Kennedy said there was evidence that such practices lingered into the 1980s, at the time of Miller-El's trial. ''The culture of the district attorney's office in the past was suffused with bias against African-Americans in jury selection,'' Kennedy wrote. He added, ''Even if we presume at this stage that the prosecutors in Miller-El's case were not part of this culture of discrimination, the evidence suggests they were likely not ignorant of it. Both prosecutors joined the district attorney's office when assistant district attorneys received formal training in excluding minorities from juries.''
The evidence was enough for even the highly conservative Chief Justice William Rehnquist and Justice Antonin Scalia to go along with the majority. But Thomas dissented. Despite all of Kennedy's citations, Thomas said Miller-El's case rested only on ''circumstantial evidence and speculation.'' Thomas wrote that Miller-El ''has not shown by clear and convincing evidence that any peremptory strikes of black veniremen were exercised because of race.''
One of these years, before he dies, Thomas might explain to us why prisoners disgust him to the point of approving the very human rights violations we lecture China, Iraq, and other nations about. We have no explanation because Thomas has never conducted a major interview since being appointed to the court by the first President Bush.
Back in 1992, just after joining the court, Thomas dissented in the 7-2 decision that upheld a $800 award for damages for a Louisiana inmate who, from behind his locked cell, argued with a prison guard. Three guards took the inmate out of his cell, put him in handcuffs and shackles, and dragged him to a hallway where they beat him so badly that he suffered a cracked dental plate.
The lower court ruled that the beating had nothing to do with acceptable prison discipline. But Thomas all but laughed off the beating, saying the injuries were ''minor.'' Thomas said the ''use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not `cruel and unusual punishment.'''
Last year Thomas was one of three dissenters, with Rehnquist and Scalia, in the 6-3 decision that found that executing the mentally retarded was ''cruel and unusual punishment.'' Also last year, Thomas dissented from a 6-3 decision to ban the practice in Alabama of chaining prisoners to outdoor ''hitching posts'' and abandoning them for hours without food, water, or a chance to use the bathroom. While the majority also called that ''cruel and unusual,'' Thomas said the hitching post served ''a legitimate penological purpose,'' encouraging a prisoner's ''compliance with prison rules while out on work duty.''
Now, once again, Thomas has struck a blow that makes one wonder figuratively who beat him up in some long forgotten alleyway of his life. Once again he has issued a dissent that makes him a better fit for Saddam Hussein than the Constitution. Bush says Hussein delivers nothing but war, misery, and torture. If Clarence the Cruel truly had his way in his private war, there is no telling how much more misery and torture would go unseen and unheard in the courtrooms and the prison hallways of America.
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