Flay Me Once, Shame on Me

praemissum

Now that’s a memorable response. I have to say, this is the first time I’ve seen Gerard David and Torchwood cited in the same breath in a legal discussion—and I’m not mad about it. The story of Sisamnes and Cambyses is brutal, dramatic, and yes—about as “cruel and unusual” as you can get. That image of a judge’s skin turned into courtroom furniture is a lot to take in, but it’s a fascinating example of how justice (or vengeance) has been portrayed—and weaponized—throughout history.

Your emphasis on the exact wording of the Eighth Amendment is also well taken. Lawyers and judges argue over words like “and,” “or,” and “shall” all the time—and sometimes the outcome of a whole case turns on just one of those. So your observation about the framers choosing and rather than or is a valid point. That said, courts have at times interpreted “cruel and unusual” with a bit more flexibility—especially when a punishment violates evolving standards of decency, even if it’s not rare or archaic. Legal language matters, but so does the way we apply it over time.

Now, as for your take on botched executions—noted. You’re right that hitting a vein isn’t always easy, especially with people who’ve had long-term drug use, medical conditions, or trauma. But I’d encourage you to consider what we expect from a state-sanctioned process. When the government is taking a life, shouldn’t the standard be higher than “better than flaying”? Some might argue that the comparison shouldn’t be to medieval torture—but to what we consider dignified and just in a modern, civilized society. That’s where the cruelty question gets trickier.

Also, your final note about what’s happening right here in Oklahoma is sobering—and real. There have been plenty of recent news stories about execution protocols gone wrong, and lawsuits alleging that the state isn’t upholding even its own standards. Those issues deserve attention, and I’m glad you’re not afraid to call them out.

Keep that curiosity sharp—and maybe send that Death Penalty Information Center article my way. I’ll add it to the growing library of “things this class has made me think more deeply about.”

responsum

Thank you, Prof. I sometimes wonder if my thought process is completely out in left field, or if there is something of substance to be considered. Since writing my original post and reading everyone’s replies, I’ve been scouring everything I can find on this topic. Looking at my open Chrome tabs (which I will list below), I realize that my conscience has not wavered, but my post may have been misleading. I not only detest the death penalty, I also despise our entire criminal justice system.

I find the entire process cruel and unusual. It is not justice. “Criminal Justice” is an oxymoron, like jumbo shrimp or military intelligence. It is a corrupt mechanism used by plebeian society for vengeance and to reinforce the treatment of We, The People as chattel. It does this under the control of what I call the Bureaucratic Oligarchy, or The Entitled Ones.

My beliefs are shaped in part by my upbringing. My father and grandfather were both incarcerated multiple times. My grandfather—the oldest prisoner in the Arkansas system at the time—spent over 20 years locked up before officials even learned his real name. Arrested under an alias, he told us he was imprisoned for having a consensual affair with a sheriff’s wife. When they were caught, she allegedly cried rape. I cannot say for certain what is true, I was not a witness, but I can say is this: a life sentence, especially under those circumstances, is cruel and unusual.

By the time I knew my grandfather, he was a prison minister with no legs due to diabetes. He was preaching in the Pine Bluff prison well into his 80s. Then, one day, a young convict trying to join a prison gang stabbed him to death.

The local Fox station once ran a story questioning why taxpayers were funding the incarceration of a legless diabetic man in his 80s, imprisoned since 1967. His accuser slammed the door in the reporter’s face, and rightfully so. Public sympathy meant nothing. He remained imprisoned until his murder.

He once sought clemency from Bill Clinton. It was allegedly granted but then rescinded by George W. Bush. All of this is oral tradition—passed from my grandfather to me—but I have spent years trying to verify it. As with so much institutional violence, the records are either lost, buried, or never kept.

My disgust with the legal system also comes from my own lived personal experiences and research. I find inspiration in Michel Foucault’s Discipline and Punish, but also the Bible. In John 8:3–11, Jesus confronts those who want to stone a woman for adultery:

3 And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst,

4 They say unto him, Master, this woman was taken in adultery, in the very act.

5 Now Moses in the law commanded us, that such should be stoned: but what sayest thou?

6 This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not.

7 So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.

8 And again he stooped down, and wrote on the ground.

9 And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst.

10 When Jesus had lifted up himself, and saw none but the woman, he said unto her, Woman, where are those thine accusers? Hath no man condemned thee?

11 She said, No man, Lord. And Jesus said unto her, Neither do I condemn thee: go, and sin no more.

This echoes in my mind every time a district attorney throws accusations while allegedly dodging their own tax obligations and racking up liens. (Payne County, I’m looking at you.) The hypocrisy is grotesque, and the abuse of power, even more so. Unfortunately, it is growing worse by the minute.

I know too many examples of The Entitled Ones getting off with slaps on the wrist while the plebes rot in cages for petty offenses. One story involves a powerful Oklahoma judge whose son allegedly has a recurring DUI problem. Yet, the charges magically disappear, hidden in faraway counties. Meanwhile, the judge is sentencing people to multiple years for minor drug possession. That is not justice. That is perversion.

Honestly? That is the one context where I could support the death penalty. Not for the addicts, the poor, the struggling. But for those that hold the power and choose to rig the system to serve themselves.

History is full of such hypocrisy. Draco was asked to write down the laws because the elite were manipulating oral tradition. He responded by prescribing death for everything. Was that “draconian” in the modern sense, or was it a more honest system, since everyone, rich and poor, faced the same consequence? (Oversimplified, yes—but still worth asking.)

As for Foucault, I will save my deep dive for another day. But I will say this: Oklahoma’s obsession with FLOCK cameras and RING surveillance is essentially Panopticon 2.0. We do not need brutalist prison blocks anymore, as our own homes are becoming the cells. No due process. No appeals process. No privacy. No justice. No peace from the system.

Which raises a deeper question: Which came first … the criminal or the crime?

As we pour billions into the prison-industrial complex (and its cousins in military, medicine, and [pseudo-]education), we starve the systems that actually build healthy societies. And the more we do that, the more “crime” we seem to find. That is not a coincidence.

So I ask: Is it more profitable to uplift people or to control them?

Lastly, I love it when a song comes on my playlist, and it fits perfectly with whatever it is that I am doing, which at this moment, I am finishing up this reply. As I add my final edits, Ani DiFranco’s Fuel starts to play, and all the lyrics are so prescient—even today, but the opening line is exactly how I feel about our entire criminal legal system:

They were digging a new foundation in Manhattan,
And they discovered a slave cemetery there.
May their souls rest easy now that lynching is frowned upon,
And we’ve moved on to the electric chair.

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Footnotes:

1. Code of Ur-Nammu – https://www.worldhistory.org
2. Ancient Persian Government – https://youtu.be
3. Execution Methods – https://youtu.be
4. Death Penalty History – https://deathpenaltyinfo.org
5. Draconian Constitution – https://en.wikipedia.org
6. Executions of Women – https://deathpenaltyinfo.org
7. Mary Surratt – https://en.wikipedia.org
8. Botched Executions – https://deathpenaltyinfo.org
9. Surveiller et punir – https://fr.wikipedia.org
10. Ani DiFranco, “Fuel” – https://youtu.be/
11. Prison Industrial Complex (Tufts) – https://sites.tufts.edu
12. Tulsa Police Surveillance – https://www.newson6.com