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.

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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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Find the EU renegotiation demands dull? Me too – but they are important

It's an old trick: smother anything in enough jargon and you can avoid being held accountable for it.

I don’t know about you, but I found the details of Britain’s European Union renegotiation demands quite hard to read. Literally. My eye kept gliding past them, in an endless quest for something more interesting in the paragraph ahead. It was as if the word “subsidiarity” had been smeared in grease. I haven’t felt tedium quite like this since I read The Lord of the Rings and found I slid straight past anything written in italics, reasoning that it was probably another interminable Elvish poem. (“The wind was in his flowing hair/The foam about him shone;/Afar they saw him strong and fair/Go riding like a swan.”)

Anyone who writes about politics encounters this; I call it Subclause Syndrome. Smother anything in enough jargon, whirr enough footnotes into the air, and you have a very effective shield for protecting yourself from accountability – better even than gutting the Freedom of Information laws, although the government seems quite keen on that, too. No wonder so much of our political conversation ends up being about personality: if we can’t hope to master all the technicalities, the next best thing is to trust the person to whom we have delegated that job.

Anyway, after 15 cups of coffee, three ice-bucket challenges and a bottle of poppers I borrowed from a Tory MP, I finally made it through. I didn’t feel much more enlightened, though, because there were notable omissions – no mention, thankfully, of rolling back employment protections – and elsewhere there was a touching faith in the power of adding “language” to official documents.

One thing did stand out, however. For months, we have been told that it is a terrible problem that migrants from Europe are sending child benefit to their families back home. In future, the amount that can be claimed will start at zero and it will reach full whack only after four years of working in Britain. Even better, to reduce the alleged “pull factor” of our generous in-work benefits regime, the child benefit rate will be paid on a ratio calculated according to average wages in the home country.

What a waste of time. At the moment, only £30m in child benefit is sent out of the country each year: quite a large sum if you’re doing a whip round for a retirement gift for a colleague, but basically a rounding error in the Department for Work and Pensions budget.

Only 20,000 workers, and 34,000 children, are involved. And yet, apparently, this makes it worth introducing 28 different rates of child benefit to be administered by the DWP. We are given to understand that Iain Duncan Smith thinks this is barmy – and this is a man optimistic enough about his department’s computer systems to predict in 2013 that 4.46 million people would be claiming Universal Credit by now*.

David Cameron’s renegotiation package was comprised exclusively of what Doctor Who fans call handwavium – a magic substance with no obvious physical attributes, which nonetheless helpfully advances the plot. In this case, the renegotiation covers up the fact that the Prime Minister always wanted to argue to stay in Europe, but needed a handy fig leaf to do so.

Brace yourself for a sentence you might not read again in the New Statesman, but this makes me feel sorry for Chris Grayling. He and other Outers in the cabinet have to wait at least two weeks for Cameron to get the demands signed off; all the while, Cameron can subtly make the case for staying in Europe, while they are bound to keep quiet because of collective responsibility.

When that stricture lifts, the high-ranking Eurosceptics will at last be free to make the case they have been sitting on for years. I have three strong beliefs about what will happen next. First, that everyone confidently predicting a paralysing civil war in the Tory ranks is doing so more in hope than expectation. Some on the left feel that if Labour is going to be divided over Trident, it is only fair that the Tories be split down the middle, too. They forget that power, and patronage, are strong solvents: there has already been much muttering about low-level blackmail from the high command, with MPs warned about the dire influence of disloyalty on their career prospects.

Second, the Europe campaign will feature large doses of both sides solemnly advising the other that they need to make “a positive case”. This will be roundly ignored. The Remain team will run a fear campaign based on job losses, access to the single market and “losing our seat at the table”; Leave will run a fear campaign based on the steady advance of whatever collective noun for migrants sounds just the right side of racist. (Current favourite: “hordes”.)

Third, the number of Britons making a decision based on a complete understanding of the renegotiation, and the future terms of our membership, will be vanishingly small. It is simply impossible to read about subsidiarity for more than an hour without lapsing into a coma.

Yet, funnily enough, this isn’t necessarily a bad thing. Just as the absurd complexity of policy frees us to talk instead about character, so the onset of Subclause Syndrome in the EU debate will allow us to ask ourselves a more profound, defining question: what kind of country do we want Britain to be? Polling suggests that very few of us see ourselves as “European” rather than Scottish, or British, but are we a country that feels open and looks outwards, or one that thinks this is the best it’s going to get, and we need to protect what we have? That’s more vital than any subclause. l

* For those of you keeping score at home, Universal Credit is now allegedly going to be implemented by 2021. Incidentally, George Osborne has recently discovered that it’s a great source of handwavium; tax credit cuts have been postponed because UC will render such huge savings that they aren’t needed.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.

This article first appeared in the 11 February 2016 issue of the New Statesman, The legacy of Europe's worst battle