Peine forte et dure

The​ city of Minneapolis, in which George Floyd lived and died, has been plagued not only by Covid-19 but also by an epidemic of police violence. As Mike Griffin, a community organiser, put it, he was ‘just as likely to die from a cop as from Covid’. Major news outlets, including the New York Times and Washington Post, seemed astonished at the scale of structural and environmental racism exposed by the pandemic. This wasn’t news to black, indigenous and Hispanic Americans, who are subject to mass incarceration, have significantly lower incomes and higher unemployment rates than the white population, and for whom the healthcare system and the overwhelmingly segregated education system and housing market have never provided equitable care, opportunity or provision. As a result of these inequalities, they are being infected and killed at a disproportionate rate. They are losing their jobs in unprecedented numbers. And they are overrepresented in the ‘essential’ jobs, from transportation, cleaning and nursing to agricultural work, that are exempted from stay at home orders. A subway worker told the New York Times that he felt more sacrificial than essential.

On 25 May, at the intersection of 38th Street and Chicago Avenue, Floyd asphyxiated while being pressed into the road under the weight of law enforcement. His dying was watched by passers-by and recorded on mobile phones. Those of us who weren’t present are secondary observers, accessing what was filmed and circulated on social media. The plot is all too familiar to people of colour. We know how this ends and are reluctant witnesses. Once it was told to us as stories, fragments inherited, passed down, whispered; now it is transmitted through phone footage, body cams, Twitter. The murder of George Floyd has its particularities but is also an instance in a long history of death at the hands of those sanctioned by federal, state, public, private and local authorities to enforce laws that do not protect us, to regulate inequality, perpetuate injustice and maintain white supremacy.

But how much do we know about the exercise of police force, despite seeing so much? The controversy and protests that followed the fatal shooting of Michael Brown, an unarmed 18-year-old, in Ferguson, Missouri, in 2014 exposed the lack of official data on police killings. Two newspapers launched investigations. The Fatal Force, a database maintained by the Washington Post, records ‘every fatal shooting by a police officer in the line of duty’. It began in January 2015 and continues to be updated, but doesn’t track deaths in police custody, fatal shootings by off-duty officers or non-shooting deaths. The Guardian’s interactive database, the Counted, recorded all deaths at the hands of law enforcement between 2015 and 2016, including deaths in custody. This is where the majority of deaths that result from physical restraint occur: positional asphyxia; prone positioning with compression of torso; manual neck compression; multiple police officers on back; knees on back; feet or knees on neck; chokeholds. Such deaths are mostly out of sight – Freddie Gray died from injuries sustained during a prolonged ride in a police van while handcuffed and shackled to the floor – but in July 2015, in Montclair, California, witnesses saw between five and eight police officers sitting on top of Christian Siqueiros, who subsequently died of a heart attack.

From the early 15th century until the late 18th century, peine forte et dure, punishment by pressing, was exercised under common law against men and women accused of capital felonies who insisted on ‘standing mute’, refusing to enter a plea. The legal historian Andrea McKenzie has argued that this refusal was interpreted as a show of contempt, an unacceptable challenge to the legitimacy of the court. The accused had to be coerced into submission or die. The most famous case in England was that of Margaret Clitherow, who in 1586 was charged with harbouring Catholic priests in her home. It took her 15 minutes to die, crushed under a load of nearly 800 lbs. In 1721, a judge at the Old Bailey sentenced two supposed highwaymen, Thomas Cross and William Spiggot, to be pressed for refusing to submit a plea. The prisoner, he instructed, ‘shall be laid upon the bare ground [and] upon his body shall be laid so much Iron and Stone as he can bear and more … until he die’. The mere sight of the press room was sufficient to change Cross’s mind. Spiggot endured a weight of 350 lbs for half an hour, but when it was increased to 400 lbs he agreed to plead. Later the same year, Nathaniel Haws, also accused of highway robbery, survived seven minutes under 250 lbs before submitting. Those who didn’t submit were pressed to death. George Strangeways died within eight minutes in 1658. The punishment continued until 1772, when, as the lawyer Andrew Knapp wrote in 1806, it was deemed ‘barbarous to Englishmen’. Silence was taken as a guilty plea for the next fifty years.

America never officially adopted peine forte et dure, but in 1692 Giles Corey of Salem, Massachusetts, refused to plead when he was accused of witchcraft and died after two days under the press. Some consider this the only case of peine in US history; others argue that it may be unique to New England. This record exists, however, because Corey was a white and free person. Settler colonists inflicted many forms of brutal punishment and torture on indigenous peoples and enslaved Africans: we read of bodies in stocks wearing weighted cattle chains, labouring bodies wearing collars suspended with heavy weights, limbs pressed with sugar cane between the grinding stones of a mill, bodies tortured in the fields and barns of plantations. The words ‘pressure’ and ‘downpresser’ bear more than metaphorical weight in black diasporic culture.

George Floyd was pressed to death not as part of a judicial proceeding, nor because he was charged with a capital felony. He was accused of paying for cigarettes with a fake $20 bill. He wasn’t pressed by stones or iron, but by the weight of Minneapolis police officers. In order to reconstruct his death, the New York Times combined recordings from bystanders and security cameras as well as audio from police scanners. At one point in the footage three officers, Derek Michael Chauvin, Alexander Kueng and Thomas Kieran Lane, can be seen kneeling on Floyd, applying pressure to his neck, torso and legs. A combined weight of around 600 lbs pressed George Floyd into the ground while he pleaded: ‘I can’t breathe, man, please.’

The most widely shared recording, made by 17-year-old Darnella Frazier, who posted it on Facebook, shows Chauvin with one knee on Floyd’s neck. On 9 June the Minneapolis Police Department amended section 5-311 of its Policy and Procedure Manual to state that ‘neck restraints and chokeholds are prohibited’ and that ‘instructors are prohibited from teaching the use of neck restraints or chokeholds.’ The tactic used by Chauvin was previously referred to as ‘conscious neck restraint’, a non-deadly ‘force option’ that ‘may be used against a subject actively resisting’. Floyd wasn’t resisting: he was pinned down by officers and handcuffed. But his immobility didn’t satisfy the officers’ desire for total subordination. At some point – it is hard to tell exactly when from the video footage – the possibility of Floyd’s continuing to live is tacitly rejected. Chauvin continues to press his weight into Floyd’s neck for three minutes after he appears to have stopped breathing.

Those responsible for executing peine wouldn’t place the iron or stone directly onto the accused but onto a flat wooden surface. Using the weight of a human body or bodies to press another person to death is perversely intimate. In Frazier’s recording, Chauvin, his shades pushed up, one hand in his pocket, appears detached but intent. He adjusts his knee and the angle of his foot, slightly releasing then increasing pressure as if to gain traction and make his kneeling position more comfortable. When bystanders approach shouting ‘Get off,’ he glances up, pulls out a container (possibly mace) and points it towards them. Then he looks back down and continues to watch Floyd asphyxiate. He shifts and adjusts his knee again, turns his foot to brace his leg, increasing pressure and crushing muscle, bone and cartilage. The killing of George Floyd is de facto, if not de jure torture, a contemporary enactment of execution by pressing.

How and where did Chauvin learn this technique? The Minneapolis Police Department has a long history of racism, homophobia and brutality. In 2010 two of its officers, Timothy Gorman and Timothy Callahan, tackled 28-year-old David Smith, who was experiencing a mental health crisis, at the downtown YMCA. They pinned him on his stomach and applied ‘prone restraint’: Gorman kneeled on Smith’s upper back for nearly four minutes, causing his death. Or perhaps Chauvin learned it when he served with the 795th Military Police Battalion of the US army between 1996 and 2000. At the time of the murder Chauvin was a training officer for the Minneapolis Police Department. Was he teaching Kueng and Lane an alternative technique to the chokehold that killed Eric Garner in New York in 2014 (and which had been banned in the NYPD since 1993)? The National Law Enforcement Training Centre and PoliceOne.com offer instruction videos for applying neck restraints. Chauvin was aware that he was being filmed and must have realised that the footage would circulate online. Although we like to imagine Chauvin’s actions are universally condemned, he is performing for an audience who are not horrified but exultant at what they see.

On some days, bad days, I wonder if our survival in spite of enslavement, lynching and mass incarceration, our refusal to be annihilated, our mere presence is perceived as a sign of contempt for and challenge to the legitimacy of the US state. To unleash venom, bullets, pain, persecution and death a black person only has to be birdwatching, whistling, walking home, riding a bike, driving a car, jogging, standing in the kitchen, sitting at home playing a video game with a nephew, lying in bed asleep; we only have to be a child playing in a city park or a teenager at a party, or be perceived as being in the wrong place at the wrong time.

Photographs of lynched and mutilated black bodies circulated throughout the 19th and early 20th centuries; they were reproduced in newspapers; printed on postcards. Lynched bodies have always carried the unambiguous message that any attempt to exert civil rights, to seek economic, political or social justice and equality, will be met with torture and death. The circulation of the Abu Ghraib photographs in 2004 similarly reproduced torture as spectacle. The vicarious pleasures and intimacies of brutality preserved in these images form an index of American racism. In addition to exposing abuse and mobilising protest, the nine-minute murder of George Floyd is now part of this genealogy.