The high court made a controversial ruling on a drug implicated in botched executions. Photo: Getty
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The lethal injection ruling that takes America another step away from banning executions

Has a recent Supreme Court ruling made it harder to defend people on death row?

UPDATE 15/7/15

David Zink was executed by the state of Missouri yesterday at 19:41. 

Sindel said: 

These cases are always very difficult. You’re dealing with a man 14 years after the crime. 14 years different. He’s not the same person he was. You can’t really stop the feelings and emotion that goes with that sometimes. We were optimistic, perhaps mistakenly so.

We saw Zink yesterday. He had become religious. He was a regular reader of the bible and he said he hoped there could be forgiveness for what he had done. He apologised to the victim’s family. He’d become resigned to what was going to happen.

***

Next week is the year anniversary of Joseph Wood’s execution. A convicted murderer, he was given a cocktail of drugs by the state of Arizona – a lethal injection. It took two hours for him to die. It was the third highly problematic execution in 2014, after the similarly harrowing deaths of Dennis McGuire in Ohio and Clayton Lockett in Oklahoma.

The execution induced wildly different reactions from states. Arizona suspended its death penalty programme. Utah re-introduced the option of execution by firing squad. Nebraska outlawed the death penalty completely earlier this year.

They were all responding, at least in part, to the same possibility  that the lethal injection in America would be ruled as unconstitutional. Last month that very nearly happened.

On 29 June, the Supreme Court ruled in the case of Glossip vs Gross. Three Oklahoma inmates on death row argued that the use of Midazolam – used in the three bungled executions last year – should be ruled as a “cruel and unusual punishment”. The eighth amendment of the American constitution expressly forbids this. They lost by five votes, to four.

Crucially, however, the details of the ruling have consequences for attorneys defending people on death row up and down the country. 

Rick Sindel and Kay Parish represent death row inmate David Zink. In 2001, he murdered 19-year-old Amanda Morton after he had rear-ended her car off a freeway in Missouri. After raping her he admitted to strangling Morton and then cutting her spinal cord so that she would “remain that way”. He buried her body in a graveyard. The state of Missouri has set his date of execution for 14 July – tomorrow.

David Zink is due to be executed this week.

His legal team are in the last stages of appeal. His confession means that their main focus falls on the type of drugs that Missouri intends to use to kill Zink.

Sindel and Parish are one of the first, if not the first, lawyers who have to work with the ramifications of the Supreme Court’s ruling.

The most notable problem they have is with a specific judgement – that lawyers using the “cruel and unusual punishment” defence must suggest an alternative form of execution that is not cruel and unusual. Or as Parish says “lawyers must tell a court how to kill our clients”.

It puts lawyers like Sindel and Parish, who are viscerally against capital punishment, in a difficult position.

“It’s a pretty nasty ruling in my opinion, and one that puts those of us trying to prevent our clients from being forcibly subject to this human experimentation in quite an ethical quandary”, says Parish.

The decision suggests that method x cannot be cruel and unusual because you have not explained a better method. Or to put it another way, it asks people who believe that all methods of execution are cruel and unusual to accept the court’s contention that there are humane and dignified forms of execution.

After much deliberation Zink’s team decided last week not to suggest an alternative form of capital punishment.

It’s left Sindel and Parish in a fairly desperate position. Previously they had argued that Missouri’s lethal agent – a form of “pentobarbital” was illegal. They claimed the drug was made by an unknown compounding pharmacy and was a “copy” of an FDA-approved drug, rather than a directly approved agent.

David Zink (left) as a young child.

They also put forward the argument that the method of execution violated state and federal controlled substance laws because the compounded pentobarbital is procured by an invalid “prescription”  written by a doctor who is contractually-bound to write the prescription and who conducts no medical examination.

It didn’t work.

As a result, another lawyer has decided to take one last roll of the dice. Justin Gelfand is an attorney with a very different legal specialism to Sindel and Parish. He’s a former federal tax prosecutor. Counterintuitively he thinks he might be able to save Zink’s life using his own specialisms in tax law.

Gelfand has prepared a public interest lawsuit using an obscure law, a Taxpayers Suit. The law has never been used in this context in Missouri legal history. It allows an action to be brought by a private individual to prevent state or federal government from unlawfully diverting public funds. It is generally used in cases of corruption or impropriety. It’s been filed by four (carefully chosen) plaintiffs, including a former member of the Missouri Senate and a Catholic nun, no less.

They argue that the suit “is not about the general legality of the death penalty in Missouri or elsewhere,” but has been filed because “Missouri public officials responsible for overseeing and administering executions are violating federal and state law using the tax dollars of hardworking Missourians.” 

The suit makes particular reference to arguments made by Sindel, Parish and others  that the state of Missouri’s use of compound pentobarbital is illegal – arguments that had previously been dismissed by Missouri courts.

The hearing for the lawsuit will continue today, less than 24 hours before Zink’s execution date. We’ll know by tomorrow whether it’s been successful, though as it’s never been used before it’s a bit of a long shot. It marks the penultimate day of years of appeals that have fallen on deaf ears in Missouri courts.

The Supreme Court’s decision won’t stop lawyers like Sindel and Parish, but it does make their lives harder. “There are those of us who just won’t give up as long as there is breath in our bodies”, says Sindel. It’s the language of hope, perhaps, over expectation. 

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Stephen Hawking's enthusiasm for colonising space makes him almost as bad as Trump

The physicist's inistence on mankind's expansion risks making him a handmaiden of inequality.

“Spreading out may be the only thing that saves us from ourselves,” Stephen Hawking has warned. And he’s not just talking about surviving the UK's recent run of record breaking heat. If humanity doesn’t start sending people to Mars soon, then in a few hundred years he says we can all expect to be kaput; there just isn’t enough space for us all.

The theoretical physicist gave his address to the glittering Starmus Festival of science and arts in Norway. According to the BBC, he argued that climate change and the depletion of natural resources help make space travel essential. With this in mind, he would like to see a mission to Mars by 2025 and a new lunar base within 30 years.

He even took a swipe at Donald Trump: “I am not denying the importance of fighting climate change and global warming, unlike Donald Trump, who may just have taken the most serious, and wrong, decision on climate change this world has seen.”

Yet there are striking similarities between Hawking's statement and the President's bombast. For one thing there was the context in which it was made - an address to a festival dripping with conspicuous consumption, where 18 carat gold OMEGA watches were dished out as prizes.

More importantly there's the inescapable reality that space colonisation is an inherently elitist affair: under Trump you may be able to pay your way out of earthly catastrophe, while for Elon Musk, brawn could be a deciding advantage, given he wants his early settlers on Mars to be able to dredge up buried ice.

Whichever way you divide it up, it is unlikely that everyone will be able to RightMove their way to a less crowded galaxy. Hell, most people can’t even make it to Starmus itself (€800  for a full price ticket), where the line-up of speakers is overwhelmingly white and male.

So while this obsession with space travel has a certain nobility, it also risks elevating earthly inequalities to an interplanetary scale.

And although Hawking is right to call out Trump on climate change, the concern that space travel diverts money from saving earth's ecosystems still stands. 

In a context where the American government is upping NASA’s budget for manned space flights at the same time as it cuts funds for critical work observing the changes on earth, it is imperative that the wider science community stands up against this worrying trend.

Hawking's enthusiasm for colonising the solar system risks playing into the hands of the those who share the President destructive views on the climate, at the expense of the planet underneath us.

India Bourke is an environment writer and editorial assistant at the New Statesman.

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