Lethal Injection and Voter IDs and Protests, Oh My!

It was a big week for the United States Supreme Court - the Justices not only heard oral arguments in potentially landmark cases challenging the constitutionality of lethal injection and mandatory voter identification, but the Court building also served as the site of a massive demonstration calling for a shutdown of Guantanamo Bay.

The Court returned from a winter break on Monday and began the year by hearing Baze v. Rees, a case brought by two inmates on death row in Kentucky. They contend that the three-drug combination used in executions in all but one of the 36 states that still have the death penalty constitutes cruel and unusual punishment, which is prohibited by the Eighth Amendment.

In 1977, when death by electric chair was the norm, the chief medical examiner in Oklahoma developed the drug cocktail in an attempt to make executions more "humane." It consists of a barbiturate to make the individual unconscious, pancuronium bromide to paralyze muscles and stop breathing, and potassium chloride to stop the heart. Essentially, this thirty-year-old dosage combination suffocates people to death, only the drug that is supposed to make the condemned unconscious often doesn’t work. So they are conscious of the suffocation as it comes on, but unable to move or speak to communicate about it.

One problem was illustrated last year when it took nearly 90 minutes to execute Joseph Clark, who'd murdered two people in Ohio. Witnesses reported that Clark raised his head off the gurney and said repeatedly, "don't work, don't work," and moaned and groaned as he struggled with prison officials.

News accounts of the execution also quoted Clark as asking, "Can you just give me something by mouth to end this?"
Opponents of the death penalty were hopeful when the Court agreed to hear the case challenging this method last fall – they essentially halted all executions in the country by granting stays to any prisoner that appealed to them. Some saw this is a hint that perhaps they would strike down this method and, for all intents and purposes, stop the death penalty for the foreseeable future. But a lot of those hopes were dashed by the reactions of the Justices during oral argument.

The Supreme Court’s actions, first in agreeing to hear the case and then in granting the stays of execution, raised expectations among some opponents of the death penalty that the justices were inclined to be sympathetic to the arguments against the three-drug protocol. But as the argument proceeded on Monday, another possibility appeared at least as likely: that the votes to hear the case had come from justices who regarded the challenge as insubstantial and wanted to dispose of it before many more state and federal courts could be tied up with similar cases.
Justices Scalia and Roberts expressed expected opposition, but the usually liberal Justice Breyer was unexpectedly skeptical, expressing doubt that any other method of execution would be any less painful or less prone to human error. And even Justice Stevens, the Court’s most liberal Justice, conceded that the state should probably win if the issue was how well it administered the current protocol, leaving open the question about whether the constitutionality of the method itself was really being examined at all.

You can read the entire transcript of the arguments here, or download them and hear them for yourself here.

The Justices also expressed skepticism at a challenge to an Indiana law requiring all voters present valid, government-issued IDs at the polls in order to cast a vote. The challengers – the ACLU and the Indiana Democratic Party – contend that the ID requirement is an undue burden on the right to vote because the justification of voter fraud is not enough of a problem to need such a drastic solution. They claim that it will disproportionately affect poor and minority voters (who usually vote for the Democratic Party) who are less likely than more affluent white voters to have drivers’ licenses and passports.

Under the Indiana law, voters who are turned away at the polls for lack of identification may cast provisional ballots, which will be counted only if the voter travels to the county clerk’s office within 10 days to show the required identification or sign a sworn statement that he cannot afford to obtain it. The plaintiffs have argued that this extra step and required travel is an unnecessary burden that other states with identification requirements do not impose.
The Justices seemed dismissive not only of this argument, but of the entire case in general. Courts are only supposed to hear cases brought by parties who are actually harmed, but this suit was brought before the law could ever be implemented. So, technically, no one has ever been harmed by it. The issue is a deeply partisan one, of course, but the Justices apparently managed to ignore this fact.

Only two Justices — Ruth Bader Ginsburg and John Paul Stevens — even hinted at the real-world fact that the photo ID law in Indiana is at the heart of a bitter, ongoing contest reaching well beyond Indiana. It is a dispute between Republicans worried over election fraud supposedly generated by Democrats to pad their votes, and Democrats worried over voter suppression supposedly promoted by Republicans to cut down their opposition. The abiding question at the end: can a decision be written that does not itself sound like a political, rather than a judicial, tract? Can the Court, in short, avoid at least the appearance of another Bush v. Gore?
And finally, the week rounded out with a massive protest, both inside and outside the Court, against the torture of prisoners held at Guantanamo Bay. Police arrested 80 people without incident.

Those who entered the building were charged with violating two federal laws — a ban on speeches and “loud, threatening, or abusive language” in the Court building or on its grounds, and a ban on parades, assemblages, and display of flags in the building or on the grounds. Those who were arrested outside were charged with violating only the second law.
Ironically, the protest overshadowed the fact that the Court ruled on that very day that the Guantanamo detainees could not sue Pentagon officers and military officials for torturing them.

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