It can prove hard to figure out what’s harmful these days, given that people are rather promiscuous in their claim of victimhood and suffering from anything they choose. Whether they’re really harmed or just play-acting is hard to say, which is why there exists terms and conditions that makes it unacceptable to question someone claiming victimhood.
But this has given rise to a sub rosa suspicion that many who proclaim their inner pain without any physical harm are mostly performing, and they consequently dismiss the seriousness of all such claims. No one punched, cut or otherwise struck Corionsa Ramey, and yet her claim of irreparable harm deserved better than she got.
July 5, 2005. Kirkwood, Missouri. Police executing a search warrant. Joseph Long, 12 years old, suffers a seizure and collapses to the floor.. Police stepped over him – repeatedly. Failed to offer him help. Refused to let his mother in the house to help him. Joseph Long died. Kevin Johnson, Long’s older brother, stood by helplessly.
Two hours later, two hours after Joseph Long died, police, including officer William McEntee, returned to the neighborhood after reports of fireworks. It was McEntee’s second visit that night as he’d been part of the search time. Johnson, still and understandably distraught, saw him. “You killed my brother.”
Then Johnson shot him. Multiple times.
As you might imagine, Johnson being black and facing an all white jury for killing a cop, Johnson ended up on death row. The good people of the State of Missouri plan to kill him next Tuesday. Ho hum. Shit happens. Especially (but really not exclusively) to black guys caught up in the Missouri Criminal Justice System.
OK, nothing new here.
What happened to Johnson’s baby brother was horrific. The solution cannot be to murder a cop, whether he deserved it or not. Johnson caught the death penalty for it, and now, 17 years later, Missouri plans to make it happen as if that will make anything better. But Johnson’s baby daughter, Corionsa (Khorry) Ramey, is now 17 years older, and will have but one chance, and only one chance, to say good-bye to her father as the state tries to make him die.
Missouri has a statute, Revised Code Section 546.740 saying who can watch when it kills someone:
546.740. Execution, witnesses. — The chief administrative officer of the correctional center, or his duly appointed representative shall be present at the execution and the director of the department of corrections shall invite the presence of the attorney general of the state, and at least eight reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such clergy or religious leaders, not exceeding two, as the defendant may name, and any person, other than another incarcerated offender, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution; but no person under twenty-one years of age shall be allowed to witness the execution.
To be fair, when a statute is written lines get drawn, such as the age below which a person cannot observe an execution. Missouri set it at 21.
It’s that last clause,”no person under twenty-one years of age,” which Khorry Ramey being 19 and all, just doesn’t qualify.
Could the line have been drawn at 18 instead of 21? Was the line at 21 so critical that it’s worth holding firm to it when a 19-year-old needs to be there for her father’s execution? No matter, as that’s not how law works. The statute says 21, so 21 is it. So Khorry sued, claiming that the law preventing her from witnessing the execution of her father violated Equal Protection and the Cruel and Unusual Clause of the Eighth Amendment. Judge Brian C. Wimes was not entirely unsympathetic.
Plaintiff alleges she will suffer harm that is “real, palpable, and devastating,” and no remedy is available at law to compensate her for the emotional harm she will incur if she is barred from attending her father’s execution. (Doc. #8). The Court does not discount these allegations of emotional harm and does not dispute they are irreparable, both in a personal sense and a legal sense.
Wait for it…
However, this irreparable harm is just one aspect of the Dataphase analaysis and, in the absence of an underlying constitutional violation, is not dispositive.
Or as Gamso succinctly put it, “But tough noogies. And fuck you.”
The irony here is that a district court had ample latitude under the Equal Protection Clause to grant the TRO, given that it’s not precedential and executions are thankfully rare. If, as Judge Wimes wrote, her pain was real and irreparable, and if the line drawn at 21 was arbitrary, well intended to keep five-year-olds from witnessing executions perhaps, but not so much intended to prevent a 19-year-old from her final opportunity to say good-bye to her father, he would have made it happen.
What’s the worst that would have come of it, an appeal to the circuit that kept Kevin Johnson alive for another year?
Strictly speaking, it’s not cruel and unusual punishment because it’s not punishment at all. But this is a blawg, not a court. And what the prison system and the good people of the State of Missouri and the Honorable Wimes are doing is sure cruel, and damn well ought to be unusual. And, oh yeah, gratuitous.
By allowing Khorry Ramey Johnson to be there for her father’s execution, would there be anything, anything at all, that would wreak havoc with the universe? Would anyone have been harmed, other than Khorry Ramey? And yet neither Missouri nor Judge Wimes saw fit to ease Khorry Ramey’s pain just this once, the one time her father’s life would be taken by the state.