The high court made a controversial ruling on a drug implicated in botched executions. Photo: Getty
Show Hide image

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. 

Show Hide image

America’s domestic terrorists: why there’s no such thing as a “lone wolf”

After the latest attack on Planned Parenthood in Colorado Springs, America must confront the violence escalating at its heart.

First things first: let’s not pretend this is about life.

Three people have died and nine were injured on Friday in the latest attack on a women’s health clinic in the United States. Planned Parenthood in Colorado Springs was besieged by a gunman whose motives remain unclear, but right-to-lifers—who should really be called “forced birth advocates”—have already taken up their keyboards to defend his actions, claiming that women seeking an abortion, or doctors providing them, are never “innocent”. 

This was not unexpected. Abortion providers have been shot and killed before in the United States. The recent book Living in the Crosshairs by David S Cohen and Krysten Connon describes in sanguine detail the extent of domestic terrorism against women’s healthcare facilities, which is increasing as the American right-wing goes into meltdown over women’s continued insistence on having some measure of control over their own damn bodies. As Slate reports

In July, employees at a clinic in the Chicago suburb of Aurora, Illinois, reported an attempted arson. In August, firefighters found half a burning car at the construction site of a future clinic in New Orleans. On Sept. 4, a clinic in Pullman, Washington, was set ablaze at 3:30 a.m., and on Sept. 30, someone broke a window at a Thousand Oaks, California, clinic and threw a makeshift bomb inside.

The real horror here is not just that a forced-birth fanatic attacked a clinic, but that abortion providers across America are obliged to work as if they might, at any time, be attacked by forced-birth fanatics whose right to own a small arsenal of firearms is protected by Congress. 

The United States is bristling with heavily armed right-wingers who believe the law applies to everyone but them. This is the second act of domestic terrorism in America in a week. On Monday, racists shouting the n-word opened fire at a Black Lives Matter protest in Minneapolis, injuring three. This time, the killer is a white man in his 50s. Most American domestic terrorists are white men, which may explain why they are not treated as political agents, and instead dismissed as “lone wolves” and “madmen”.

Terrorism is violence against civilians in the service of ideology. By anyone’s sights, these killers are terrorists, and by the numbers, these terrorists pose substantially more of a threat to American citizens than foreign terrorism—but nobody is calling for background checks on white men, or for members of the republican party to wear ID tags. In America, like many other western nations, people only get to be “terrorists” when they are “outsiders” who go against the political consensus. And there is a significant political consensus behind this bigotry, including within Washington itself. That consensus plays out every time a Republican candidate or Fox news hatebot expresses sorrow for the victims of murder whilst supporting both the motives and the methods of the murderers. If that sounds extreme, let’s remind ourselves that the same politicians who declare that abortion is murder are also telling their constituents that any attempt to prevent them owning and using firearms is an attack on their human rights. 

Take Planned Parenthood. For months now, systematic attempts in Washington to defund the organisation have swamped the nation with anti-choice, anti-woman rhetoric. Donald Trump, the tangerine-tanned tycoon who has managed to become the frontrunner in the republican presidential race not in spite of his swivel-eyed, stage-managed, tub-thumping bigotry but because of it, recently called Planned Parenthood an “abortion factory” and demanded that it be stripped of all state support. Trump, in fact, held a pro-choice position not long ago, but like many US republicans, he is far smarter than he plays. Trump understands that what works for the American public right now, in an absence of real hope, is fanaticism. 

Donald Trump, like many republican candidates, is happy to play the anti-woman, anti-immigrant, racist fanatic in order to pander to white, fundamentalist Christian voters who just want to hear someone tell it like it is. Who just want to hear someone say that all Muslims should be made to wear ID cards, that Black protesters deserve to be “roughed up”, that water-boarding is acceptable even if it doesn’t work because “they deserve it”. Who just want something to believe in, and when the future is a terrifying blank space, the only voice that makes sense anymore is the ugly, violent whisper in the part of your heart that hates humanity, and goddamn but it’s a relief to hear someone speaking that way in a legitimate political forum. Otherwise you might be crazy.

American domestic terrorists are not “lone wolves”. They are entrepreneurial. They may work alone or in small groups, but they are merely the extreme expression of a political system in meltdown. Republican politicians are careful not to alienate voters who might think these shooters had the right idea when they condemn the violence, which they occasionally forget to do right away. In August, a homeless Hispanic man was allegedly beaten to a pulp by two Bostonians, one of whom told the police that he was inspired by Donald Trump’s call for the deportation of “illegals”. Trump responded to the incident by explaining that “people who are following me are very passionate. They love this country and they want this country to be great again.”

But that’s not even the real problem with Donald Trump. The real problem with Donald Trump is that he makes everyone standing just to the left of him look sane. All but one republican governor has declared that refugees from Syria are unwelcome in their states. Across the nation, red states are voting in laws preventing women from accessing abortion, contraception and reproductive healthcare. Earlier this year, as congressmen discussed defunding Planned Parenthood, 300 ‘pro-life’ protesters demonstrated outside the same Colorado clinic where three people died this weekend. On a daily basis, the women who seek treatment at the clinic are apparently forced to face down cohorts of shouting fanatics just to get in the door. To refuse any connection between these daily threats and the gunman who took the violence to its logical extreme is not merely illogical—it is dangerous.

If terrorism is the murder of civilians in the service of a political ideology, the United States is a nation in the grip of a wave of domestic terrorism. It cannot properly be named as such because its logic draws directly from the political consensus of the popular right. If the killers were not white American men, we would be able to call them what they are—and politicians might be obligated to come up with a response beyond “these things happen.”

These things don’t just “happen”. These things happen with escalating, terrifying frequency, and for a reason. The reason is that America is a nation descending into political chaos, unwilling to confront the violent bigotry at its heart, stoked to frenzy by politicians all too willing to feed the violence if it consolidates their own power. It is a political choice, and it demands a political response.

Laurie Penny is a contributing editor to the New Statesman. She is the author of five books, most recently Unspeakable Things.