Article 25

Archive for October, 2013|Monthly archive page

Ask an Unemployed Lawyer

In Uncategorized on 10/21/2013 at 3:47 pm


Thousands turned out to watch Rainey Bethea hanged in Owensboro, Ky., in 1936, the last person publicly executed in the United States.

Crueler Than Curdled Milk

By U.L.

 Dear U.L.,

Are you familiar with the case of Herman Wallace, who died three days after a federal judge ordered him released from prison because he’d been denied a fair trial? Mr. Wallace had spent more than 40 years in solitary confinement in a Louisiana prison. (From, Oct. 4) Isn’t that cruel and unusual punishment, which is forbidden by the Bill of Rights in the U.S. Constitution? How is it that this sort of thing happens in the United States?

 Samantha Adams


Dear Samantha:

I had to look this up, because I get my legal news from CNN about as frequently as I drink curdled milk for refreshment.

Herman Wallace was one of the “Angola 3” inmates at the Louisiana State Penitentiary at Angola, a trio of agitators more common in the ’70s who wanted better living conditions in prison. Wallace, serving time for an armed robbery conviction, was charged in 1972 for killing a guard at the prison.

After his 1974 conviction for killing the guard, they threw Wallace in solitary confinement at Angola, where he remained until he was transferred to another prison in 2009, where he was held in solitary confinement until he was diagnosed with liver cancer this summer.

Wallace was released from prison Oct. 1, after the U.S. District Court in Baton Rouge vacated his murder conviction, finding that women had been systematically excluded from the grand jury that indicted him in 1972. Wallace died of liver cancer Oct. 4.

You know that old saw about the observer changing what is observed? Well, while 40 years of solitary confinement sure looks like cruel and unusual punishment, to the Southern prison community, it probably looks appropriate for an inmate convicted of killing a prison guard.

Cue dreamy harp music

I remember when my great-great-grandfather, the Unemployed Milliner, told warm, mossy stories of old-school family entertainment at the public hangings. The Original American melodrama, you got a little violence, a lesson in deterrence, and maybe some balloons and ice cream.

Like in 1837, when thousands gathered in Cincinnati to watch the hanging of John Washburn, convicted of killing a shopkeeper. Or in 1867, when 15-year-old Samuel Case, standing on a gallows downtown, told his audience, “If there was a crowd of boys here, I might tell them how to behave.”

Andrew Welsh-Huggins gives other examples in his excellent book about the death penalty in Ohio, No Winners Here Tonight, such as the 1844 double-hanging in Columbus that filled the roads and the banks of the Scioto River for days before the big show. Since many had been drinking awaiting the fun, it was “unruly at best,” according to Welsh-Huggins.

And it was not uncommon for the hanged to take 10-20 minutes to die. Hanging there with your hands tied, a broken neck, slowly strangling, while a bunch of drunks scream at you to die? Cruel, much?

A long time ago, right?

The Eighth Amendment, which prohibits cruel and unusual punishment, was ratified in 1791. The language was adopted from the English Bill of Rights of 1689.

Let me ask you a question, Samantha: What constitutes a “government shutdown”? Because it doesn’t appear to mean what one would assume it to mean. If you are deemed “essential,” then you stay on the job. That means businesspeople can still fly, the stock market is bullish, football season has concussed the nation.

“Government shutdown” simply means the poor must suffer until we all agree the poor must suffer more. And why must the poor suffer? So pols can do metrics on public reactions for 2014 election talking points. So we’ll be more accepting of the idea that it’s not only OK for the poor to suffer, but it’s the right and moral thing to do. Really, you won’t miss ’em.

And so it goes with “cruel and unusual punishment.” I mean, if death is not “cruel and unusual,” it all gets a little blurry and arbitrary after that, wouldn’t you agree? It’s a pretty interesting historical topic, well beyond the scope of this column. It says much about human development.

One of my favorite forms of capital punishment is something called “scaphism.” The Persians reportedly did this thing to the Greeks where they would place a naked person in a hollowed-out tree trunk or boat, with his head, arms, and legs protruding.

The prisoner was fed milk and honey to produce diarrhea, his appendages were covered with honey to attract insects, and he was set afloat on a putrid pond, and sometimes survived for several weeks, the helpless stench of a painfully slow death.

And somewhere in there is reason for hope.

Never take the advice of an Unemployed Lawyer. Always consult with an attorney for any legal advice in your situation. If, however, you want to ask, write to