We were wondering when someone would get around to noticing Clarence Thomas's Cruel View of Prisoners. Derrick Z. Jackson, columnist for the Boston Globe just did.

Eight members of the Supreme Court this week agreed in Miller-El v. Cockrell ruled that a death row inmate should get a hearing on whether the prosecution's exclusion of 10 of 11 blacks from his jury deprived him of a fair trial by a jury of his peers. The lone dissent was Clarence Thomas.

The Los Angeles Times reported on the decision:

"The culture of the district attorney's office [in Dallas] in the past was suffused with bias against African Americans," said Justice Anthony M. Kennedy. Moreover, "happenstance" cannot explain why more than nine out of 10 eligible black jurors were turned away by the prosecutor, he added.

"We question the dismissive and strained interpretation" that allowed judges to explain away this evidence, he said....

In Miller-El's case, defense lawyers cited a 1963 manual that told Dallas prosecutors to exclude certain people from juries whenever possible. "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well educated," the manual advised.

Though versions of this manual were used into the mid-1970s, judges in Texas refused to believe race bias was behind the exclusion of most blacks from Miller-El's jury....

Justice Kennedy said that the prosecutors in Miller-El's case questioned blacks and whites differently. "Disparate questioning did occur," Kennedy wrote, and that alone is "evidence of purposeful discrimination" that calls for reopening the case.

In a nutshell, a black man is tried for capital murder, the prosecutor excludes 10 of 11 blacks from the jury, eight white members of the nation's highest court are disturbed enough about the effect of the exclusion to order the court below to give him a hearing on the issue, and the one black man on the High Court disagrees. Justice Thurgood Marshall must be turning over in his grave. But Derrick Jackson is right--Clarence Thomas has a history of cruel rulings:

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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