Cruel and Unusual Punishment: In The Eye of the Beholder

By Leonard Peltier

“Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The Eighth Amendment is supposed to be about dignity, humanity and decency. It is intended to prohibit “deliberate indifference to serious infliction of unnecessary or wanton pain or physical torture or lingering death.” The Eighth Amendment, I’m told, should reflect the standards of a maturing society and your correctional system shouldn’t be just about depriving people of freedom, but rehabilitation.

But that is not how it works for me or many other prisoners. Protection against “cruel and unusual punishment” has faded away as have the rights of ordinary citizens under such things as the Patriot Act and Homeland Security.

More and more information about FBI misconduct has come to light recently. Our government continues to fabricate and/or withhold evidence. They do this not to “protect and serve,” but for political gain. Prison is a very cruel reality. But “unusual” imprisonment has become a common experience, especially among Native Americans. There are now approximately 3 million people in United States prisons. The Constitution protects against “cruel and unusual punishment,” and, therefore, if the Constitution has meaning, then you, as citizens, must care. To ignore the cruel and extreme conditions prisoners endure—overcrowding, poor medical care, and unhealthy conditions—is to return to a way that the Eighth Amendment was intended to end.

The courts say prison officials have to have acted with “deliberate indifference” to the safety, health and welfare of prisoners for punishment to be considered cruel and unusual. I don’t know what this means because “deliberate indifference” is a way of life in prison. Imagine suffering a stroke, as I did, and slowly losing part of your sight in an environment where all of your senses are required for survival; or suffering extreme jaw pain for years, until the United Nations forced your government to stop the torture and provide the necessary health care.

There are other ways prisoners are deprived of their humanity. In many prisons, we Native Americans are not allowed to practice our spiritual beliefs and traditions, as if separation from the earth with which we are one—as stewards, not owners—were not punishment enough. The Eighth Amendment prohibits arbitrary and disproportionate punishments, too. The normal Federal guideline for prisoners convicted of homicide offenses is 200+ months. This means that I should have been released from prison over a decade ago.

The U.S. Parole Commission refuses to consider the possibility of my receiving parole until at least December 2008—when I will have served double the normal time—and there is no guarantee that I will be paroled even then. This disproportionate sentence is particularly cruel and unusual because there is no basis to support the Commission’s reasons for doubling my time for parole consideration. The Commission explains its departure from its own congressionally mandated guidelines by saying that I was involved in an “ambush” of two FBI agents and that I executed them at point blank range after the agents had been incapacitated. There’s no evidence to support those findings and there never was.

The government attorneys have even admitted that they do not know who shot the agents. The Commission’s ruling is not supported by my convictions, which the Eighth Circuit Court of Appeals upheld on an aiding and abetting theory. That was a shift in the government’s position after we discovered the government withheld evidence that undercut their case. I was never tried on aiding and abetting and there is no evidence that I knowingly aided and abetted in the shooting of the two agents. I can tell you I didn’t intend (nor did I) shoot anyone. My only crime was that I defended my People from attack.

In my culture, our first responsibility is always survival. There is no other choice when faced with destruction, but to turn and defend ourselves, our women and our children. That is what I did when the agents invaded the private property of the people I and others were there to protect. Yet, I remain in prison awaiting another appeal, another parole hearing . . . and so it goes. The so-called patriots of today ignore constitutional protections, the very ideas this country was founded upon. Under the guise of threats to “national security,” the U.S. government has rounded up “terrorists” and detained them, never to try them or, if they do, to conduct sham trials.

This reminds me of the stories I heard as a child about the hanging of 39 Dakota warriors on December 26, 1862, in Mankato, Minnesota. The hanging followed trials, which condemned over 300 combatants in the 1862 Dakota Conflict, and stands as the largest mass execution in American history. The mere participation of the warriors in a battle justified the death sentence. So, where a prisoner admitted firing shots, he was immediately pronounced guilty without any consideration.

President Lincoln might have signed the death warrants of all 300 defendants. He stopped at 38 after an aide told him that history would look upon him unfavorably if he signed all of the death warrants. A youth the guards simply grabbed along the way to the gallows became the 39th victim.

The mass execution occurred in the opening years of the American-Sioux treaty conflict that would not end until the Seventh Calvary completed its massacre at Wounded Knee, South Dakota, on December 29, 1890. What I have learned in the past 28 years is that innocence is the weakest defense where your government has decided to target a person and/or squash dissent. Innocence has a single voice that can only say over and over again, “I didn’t do it.” Guilt has a thousand voices, all of them lies. And, unless an innocent lies and admits guilt—so the government can claim victory—the innocent remains imprisoned.

Punishment for a crime a person did not commit is the cruelest punishment of all. In the end, maybe you think injustice can’t happen to you, only to someone else, “The Other.” Maybe you can sweep the streets of all undesirables, of everyone who is an “Other.” But, one day, you may be declared the Other yourself. What then?

Justice is not a flexible tool. Unless we all do our part to ensure that justice is applied equally to all human beings, we are a party to its abuse. We must stand together to protect the rights of others. No child should go hungry, no woman denied protection from abuse, no person refused health care or an education, no prisoner held for political reasons. But, as long as any constitutional rights are allowed to become meaningless, You are at risk. The sad thing is that most people outside the prison walls don’t even know it.

Mitakuye Oyasin. In the Spirit of Crazy Horse.

—Leonard Peltier, Peace and Freedom Party candidate for U.S. President