Post by Anja Nieser on Sept 4, 2006 11:58:31 GMT -5
Rounds feared public outcry----Horror of 2-drug execution may have led to
death penalty repeal
Executing Elijah Page last week by the method the law requires would
have been so appalling to witnesses that it could have ended capital
punishment in the state, Gov. Mike Rounds says.
"If we were to have used the 2-drug thingytail, there is a possibility,
and I believe more than a remote possibility, that the experience shared
by the observers of the execution as the individual continued to move on
the table would hasten the elimination of the death penalty in South
Dakota," Rounds said.
Page would have died promptly, but his body could have continued
twitching for a half-hour or more, the governor said.
The governor made his comments in an hour-long telephone interview
Thursday night, in which he offered a broader explanation of his reasons
for letting Page live another 10 months. In a news conference Tuesday,
he said his main concern was protecting those carrying out the execution
from participating in what might be an illegal act. On Thursday, he
spoke at length about what witnesses would see. He also defended himself
from criticism of lawmakers who said he made a needless last-minute
decision that showed a lack of leadership by transferring responsibility
to the Legislature.
Garry Moore, a Democratic state senator from Yankton, said Rounds
appeared to be locked in a stalemate with Page, a death row inmate who
had given up his right to further appeals in court.
"It distresses me," Moore said. "I don't think the death penalty law is
broken. I think somebody was looking for an out by playing a game of
chicken, and somebody blinked."
Moore said Rounds' actions appeared to be a hedge against the Nov. 6
election, when the governor is seeking a second term and state voters
will approve or reject a ban on abortion. The abortion ban ties in to
the Page case, some critics have said, arguing that if life is sacred
before birth, then that sanctity should also prevent a state from
putting a criminal to death.
"The governor knew a week ago that he had concerns with it," Moore said
of the death sentence.
"I think he was waiting for Page to ask for a stay. Page didn't ask, and
the governor was getting concerned. The governor blinks and calls a
stay. I think a lot of this is tied to the abortion issue.
"There was pressure from right-to-life groups. This was an easy out, to
not address it till after the November election."
Rounds said, "There's simply no logic to what Mr. Moore is suggesting."
Prison officials were ready to use three drugs identical to what other
states use, while South Dakota's procedure spells out a two-drug
sequence. Using 2 drugs would have been correct legally while
potentially creating another problem, Rounds said.
The full process of dying can take 3 to 5 minutes with a 3-drug thingytail,
considered a more humane way to kill a criminal, and checking all details
to confirm the execution can take 12 to 15 minutes, Rounds said.
With a 2-drug sequence, by contrast, "confirmation takes 30 to 45
minutes for the body to stop twitching," he said.
"Death actually occurs fairly rapidly," Rounds said. "But individuals
are still able to observe twitching for 30 to 45 minutes ... They are
still dead in a matter of minutes, but the body continues to have a
reflexive action for an extended period of time. It's not something
they'd be prepared to see."
That would have been intolerable, he said.
"There would have been a lot of revulsion on the part of the family -
and they don't deserve that - and on the part of the observers and on
the part of the individuals we expect to carry out the penalty who had
not been trained for a 2-drug execution," Rounds said. "We would never
have executed an individual in the future."
On the other hand, "the 3-drug thingytail leaves the impression not only
that the individual is dead but appears to be dead also," Rounds said.
Preferring delayed death over a botched one
Asked whether he thought lawmakers, responding to witnesses' revulsion,
would remove the death penalty from state law, Rounds said: "I don't
think the Legislature would. It may very well be pushed through with an
initiated measure. I could see a great public outcry."
The perception would be that something went wrong, even if death came
quickly.
"I would prefer they be concerned about a delayed execution rather than
a botched execution," he said. "I think a 2-drug would have been
considered a botched execution."
Dr. Jonathan Groner, associate professor at the Ohio State University
College of Medicine, said an execution can produce a sight that
witnesses find appalling.
"There have been some executions where people gasped and tried to lift
their heads up if the drugs have not been given properly," Groner said
late Friday from Columbus. "There have been cases in other states where
witnesses have been horrified."
But he questioned the point Rounds was trying to make.
"It sounds like he's trying to say if someone is suffocated to death and
doesn't have a muscle relaxant, even if there's no heartbeat, the mouth
moves and makes motions like breathing for 30 minutes," Groner said.
However, Groner said, the two drugs used under South Dakota's law would
be a barbiturate that induces a coma, along with a muscle relaxant that
paralyzes the body. Each would be sufficient to kill, he said.
"Thus, there would be no twitching," he said.
A separate problem is the opposite of what Rounds is suggesting, Groner
said. That's the risk that the barbiturate would be an insufficient
dose, resulting in something short of a full coma. If the relaxant
followed at full dosage, witnesses would think the criminal was
unconscious or dead when in fact he was awake but unable to blink or
move any muscle to express pain.
"The greater concern is that they look serene but actually are being
tortured," Groner said.
Such possibilities are not remote, he said, noting that medical
professionals best able to attach IVs and give drugs are excused from
the process for ethical reasons.
"These are often given by people with no medical training, and they're
nervous. They push the syringes as fast as they can and get the hell
out," Groner said.
Such risks have tilted death penalty discussions back toward other means
of execution, he said.
Legislature might pitch ban, Moore says
Moore predicts that very thing when lawmakers meet next year in Pierre.
"He's going to ask for clarification in the law specifying the number of
drugs," Moore said of Rounds. "I can see two or three bills. A complete
ban on the death penalty will be part of the whole discussion. Another
would say the state could use any means appropriate - hanging, firing
squad, electric chair, lethal injection. You don't have a cop-out then."
Page was 1 of 3 men who stabbed, kicked and beat Chester Poage to
death in March 2000 in a gulch near Spearfish. Court documents said the
men taunted Poage in a crime lasting several hours before finally
crushing his head with rocks and leaving him half-dressed in the snow to
die.
"I would leave the death penalty in place particularly for hideous
crimes such as this," Moore said. "I have a great deal of faith in the
judicial system in South Dakota. South Dakota is conservative in nature
and juries don't just hand out the death sentence."
But he said nothing is sure when the Legislature reopens the subject,
especially with elections this fall.
"Something's going to pass, and it could be a repeal of the death
penalty," Moore said. "You're playing Russian roulette with this deal.
You don't know what kind of legislative body you're going to get in
there. You could have 30 % turnover."
South Dakota last executed a criminal in 1947. All states' death
penalties became invalid with a U.S. Supreme Court ruling in 1972. South
Dakota re-enacted capital punishment in 1979, on a 36-34 vote in the
House and a 19-16 vote in the Senate.
Rounds said he thinks the Legislature will update the law to specify a
3-drug sequence for a lethal injection and predicted that Page would
be put to death almost immediately after the stay of execution expires
next July 1.
"It will still be one of the quickest executions of any place in the
country, and it will be done in a time and place according to state
statutes and not simply to satisfy the desires of an individual who no
longer wishes to remain on death row," Rounds said. "I still believe the
execution will take place. I just think it will be next summer rather
than this fall."
Resolving questions in the final days
Rounds said he and Attorney General Larry Long and other state officials
dealt with a dozen issues in the final days before the Page execution,
which had been set for 10 p.m. Tuesday.
As late as Tuesday, 3 issues remained, Rounds said.
"On Tuesday afternoon, the attorney general shared with me we had an
issue to discuss. Two of the issues were resolved. The third issue
remained unresolved," Rounds said.
He would not say what the other issues were, citing what he called
"attorney-client privileges." Asked if he was the client in that
equation and thus the one who could reveal the content of those
discussions, he said "no" in that the matter concerned other state
employees as well. He referred questions to Long, who said Friday that
he would not be able to discuss those issues until cleared by Rounds.
Asked about the dozen issues, Long said, "I don't think 12's the
right number. Up to this point I have not answered any of those
questions ... but was this the only thing on the governor's radar? The
answer is no."
Long said Rounds had many questions.
"He wanted copies of lots of documents and transcripts and those sorts
of things. A few days before the scheduled execution, there were 2 or
3 of my lawyers pulling together documents for 3 or 4 hours in the
conference room. It was a pretty good-sized stack of material."
Long said Rounds' consideration of a 2- or 3-drug protocol for killing
Page "was not a last-minute thing. He had been trying to educate himself
for several weeks.
He was getting information from the Department of Corrections and other
sources."
Long said he and Rounds talked several times Tuesday.
"He calls me on Tuesday morning, the day of the execution," Long said.
"I sort it out and say, 'Governor, as this relates to Mr. Page, this
issue is resolved.' ... The governor says, 'I want the statutes complied
with. I want to do this by the numbers, by the books. I don't care what
Elijah Page thinks.'"
The chain of events gave the impression of a last-minute scramble, and
that puts undue pressure on the Legislature, Moore said.
'De facto repeal' of corporal punishment
"If we do nothing at all, somebody's got a good argument in the Supreme
Court based on comments from the attorney general's office and the
governor's office," he said. "They've got a good basis for saying you
don't even have a death penalty. You yourselves are questioning your own
law. Defense attorneys would have a heyday with this."
Lee Schoenbeck, a Watertown senator who is not seeking re-election,
thinks last week's events put capital punishment on hold.
"This was a de facto repeal of the death penalty," said Schoenbeck, who
opposes capital punishment. "I think that this next session when the
legislation is proposed to change the procedure, you're going to be
looking at the debate as to whether we should have the death penalty in
South Dakota. If we don't change the procedures, there won't be any
executions."
Long said inaction by lawmakers would return the issue to where it is
now, though with a different ending.
"If the Legislature does nothing, then come July 1, there will be a
circuit judge who will set an execution date for Mr. Page again and
we'll see what happens," the attorney general said.
Asked how the execution could be carried out, given what happened last
week, Long said: "The state could proceed with two chemicals rather than
three, in strict compliance with the statute. That's what could happen."
Separating policy, law from precedent
Chris Hutton, law professor at the University of South Dakota, said
Rounds was using his constitutional power in issuing a stay of
execution. But neither that action nor the reasoning behind it binds a
future governor, she said. Nor would it bind Rounds if he is re-elected.
If the Legislature does not change the law as Rounds hopes, he would be
free to allow the execution to continue with a two-drug sequence, Hutton
said.
"A governor might feel constrained, just to be consistent, but that's a
matter of the governor's choice, not a legal requirement," Hutton said.
Discussion will center on whether to amend or update the state code.
Moore said the law already allows for a three-drug sequence by referring
to "a substance or substances" used in an execution. That wording is
open-ended, he said. But an earlier segment of the law, SDCL 23a-27a-32,
makes note of 2 steps, though the word "two" does not appear.
A government's leeway in executing a criminal has been disputed in many
states. Many have laws virtually identical to South Dakota's yet use a
3-drug sequence, Long said.
In North Carolina, a condemned inmate said it was illegal for a state to
use 3 drugs if the law indicated using two.
"The North Carolina Supreme Court said, 'We don't care. The statute
cannot be fairly read to limit the warden to 2,'" Long said. "Is that
binding on the South Dakota Supreme Court? I don't know the answer to
that. You might find three justices on the South Dakota Supreme Court
who don't agree with that analysis."
The governor compared his decision on Page to his veto in 2004 of a bill
designed to ban abortion. He subsequently signed a ban in 2006 that's on
the fall ballot. He said the 2004 version was flawed because of
unintended legal consequences and thought the same last week in trying
to protect state employees from executing a criminal in a manner outside
the bounds of state law.
Asked whether death penalty opponents had thanked him last week for
sparing Page, he said his office had received calls.
"There may have been some phone calls," he said. "They may be surprised
to find I'm more convinced now than ever there is unfortunately a place
for the death penalty in South Dakota. I could not get past the fact
that these individuals, if they ever came off death row, would be in a
position to harm others."
(source: Argus Leader)
death penalty repeal
Executing Elijah Page last week by the method the law requires would
have been so appalling to witnesses that it could have ended capital
punishment in the state, Gov. Mike Rounds says.
"If we were to have used the 2-drug thingytail, there is a possibility,
and I believe more than a remote possibility, that the experience shared
by the observers of the execution as the individual continued to move on
the table would hasten the elimination of the death penalty in South
Dakota," Rounds said.
Page would have died promptly, but his body could have continued
twitching for a half-hour or more, the governor said.
The governor made his comments in an hour-long telephone interview
Thursday night, in which he offered a broader explanation of his reasons
for letting Page live another 10 months. In a news conference Tuesday,
he said his main concern was protecting those carrying out the execution
from participating in what might be an illegal act. On Thursday, he
spoke at length about what witnesses would see. He also defended himself
from criticism of lawmakers who said he made a needless last-minute
decision that showed a lack of leadership by transferring responsibility
to the Legislature.
Garry Moore, a Democratic state senator from Yankton, said Rounds
appeared to be locked in a stalemate with Page, a death row inmate who
had given up his right to further appeals in court.
"It distresses me," Moore said. "I don't think the death penalty law is
broken. I think somebody was looking for an out by playing a game of
chicken, and somebody blinked."
Moore said Rounds' actions appeared to be a hedge against the Nov. 6
election, when the governor is seeking a second term and state voters
will approve or reject a ban on abortion. The abortion ban ties in to
the Page case, some critics have said, arguing that if life is sacred
before birth, then that sanctity should also prevent a state from
putting a criminal to death.
"The governor knew a week ago that he had concerns with it," Moore said
of the death sentence.
"I think he was waiting for Page to ask for a stay. Page didn't ask, and
the governor was getting concerned. The governor blinks and calls a
stay. I think a lot of this is tied to the abortion issue.
"There was pressure from right-to-life groups. This was an easy out, to
not address it till after the November election."
Rounds said, "There's simply no logic to what Mr. Moore is suggesting."
Prison officials were ready to use three drugs identical to what other
states use, while South Dakota's procedure spells out a two-drug
sequence. Using 2 drugs would have been correct legally while
potentially creating another problem, Rounds said.
The full process of dying can take 3 to 5 minutes with a 3-drug thingytail,
considered a more humane way to kill a criminal, and checking all details
to confirm the execution can take 12 to 15 minutes, Rounds said.
With a 2-drug sequence, by contrast, "confirmation takes 30 to 45
minutes for the body to stop twitching," he said.
"Death actually occurs fairly rapidly," Rounds said. "But individuals
are still able to observe twitching for 30 to 45 minutes ... They are
still dead in a matter of minutes, but the body continues to have a
reflexive action for an extended period of time. It's not something
they'd be prepared to see."
That would have been intolerable, he said.
"There would have been a lot of revulsion on the part of the family -
and they don't deserve that - and on the part of the observers and on
the part of the individuals we expect to carry out the penalty who had
not been trained for a 2-drug execution," Rounds said. "We would never
have executed an individual in the future."
On the other hand, "the 3-drug thingytail leaves the impression not only
that the individual is dead but appears to be dead also," Rounds said.
Preferring delayed death over a botched one
Asked whether he thought lawmakers, responding to witnesses' revulsion,
would remove the death penalty from state law, Rounds said: "I don't
think the Legislature would. It may very well be pushed through with an
initiated measure. I could see a great public outcry."
The perception would be that something went wrong, even if death came
quickly.
"I would prefer they be concerned about a delayed execution rather than
a botched execution," he said. "I think a 2-drug would have been
considered a botched execution."
Dr. Jonathan Groner, associate professor at the Ohio State University
College of Medicine, said an execution can produce a sight that
witnesses find appalling.
"There have been some executions where people gasped and tried to lift
their heads up if the drugs have not been given properly," Groner said
late Friday from Columbus. "There have been cases in other states where
witnesses have been horrified."
But he questioned the point Rounds was trying to make.
"It sounds like he's trying to say if someone is suffocated to death and
doesn't have a muscle relaxant, even if there's no heartbeat, the mouth
moves and makes motions like breathing for 30 minutes," Groner said.
However, Groner said, the two drugs used under South Dakota's law would
be a barbiturate that induces a coma, along with a muscle relaxant that
paralyzes the body. Each would be sufficient to kill, he said.
"Thus, there would be no twitching," he said.
A separate problem is the opposite of what Rounds is suggesting, Groner
said. That's the risk that the barbiturate would be an insufficient
dose, resulting in something short of a full coma. If the relaxant
followed at full dosage, witnesses would think the criminal was
unconscious or dead when in fact he was awake but unable to blink or
move any muscle to express pain.
"The greater concern is that they look serene but actually are being
tortured," Groner said.
Such possibilities are not remote, he said, noting that medical
professionals best able to attach IVs and give drugs are excused from
the process for ethical reasons.
"These are often given by people with no medical training, and they're
nervous. They push the syringes as fast as they can and get the hell
out," Groner said.
Such risks have tilted death penalty discussions back toward other means
of execution, he said.
Legislature might pitch ban, Moore says
Moore predicts that very thing when lawmakers meet next year in Pierre.
"He's going to ask for clarification in the law specifying the number of
drugs," Moore said of Rounds. "I can see two or three bills. A complete
ban on the death penalty will be part of the whole discussion. Another
would say the state could use any means appropriate - hanging, firing
squad, electric chair, lethal injection. You don't have a cop-out then."
Page was 1 of 3 men who stabbed, kicked and beat Chester Poage to
death in March 2000 in a gulch near Spearfish. Court documents said the
men taunted Poage in a crime lasting several hours before finally
crushing his head with rocks and leaving him half-dressed in the snow to
die.
"I would leave the death penalty in place particularly for hideous
crimes such as this," Moore said. "I have a great deal of faith in the
judicial system in South Dakota. South Dakota is conservative in nature
and juries don't just hand out the death sentence."
But he said nothing is sure when the Legislature reopens the subject,
especially with elections this fall.
"Something's going to pass, and it could be a repeal of the death
penalty," Moore said. "You're playing Russian roulette with this deal.
You don't know what kind of legislative body you're going to get in
there. You could have 30 % turnover."
South Dakota last executed a criminal in 1947. All states' death
penalties became invalid with a U.S. Supreme Court ruling in 1972. South
Dakota re-enacted capital punishment in 1979, on a 36-34 vote in the
House and a 19-16 vote in the Senate.
Rounds said he thinks the Legislature will update the law to specify a
3-drug sequence for a lethal injection and predicted that Page would
be put to death almost immediately after the stay of execution expires
next July 1.
"It will still be one of the quickest executions of any place in the
country, and it will be done in a time and place according to state
statutes and not simply to satisfy the desires of an individual who no
longer wishes to remain on death row," Rounds said. "I still believe the
execution will take place. I just think it will be next summer rather
than this fall."
Resolving questions in the final days
Rounds said he and Attorney General Larry Long and other state officials
dealt with a dozen issues in the final days before the Page execution,
which had been set for 10 p.m. Tuesday.
As late as Tuesday, 3 issues remained, Rounds said.
"On Tuesday afternoon, the attorney general shared with me we had an
issue to discuss. Two of the issues were resolved. The third issue
remained unresolved," Rounds said.
He would not say what the other issues were, citing what he called
"attorney-client privileges." Asked if he was the client in that
equation and thus the one who could reveal the content of those
discussions, he said "no" in that the matter concerned other state
employees as well. He referred questions to Long, who said Friday that
he would not be able to discuss those issues until cleared by Rounds.
Asked about the dozen issues, Long said, "I don't think 12's the
right number. Up to this point I have not answered any of those
questions ... but was this the only thing on the governor's radar? The
answer is no."
Long said Rounds had many questions.
"He wanted copies of lots of documents and transcripts and those sorts
of things. A few days before the scheduled execution, there were 2 or
3 of my lawyers pulling together documents for 3 or 4 hours in the
conference room. It was a pretty good-sized stack of material."
Long said Rounds' consideration of a 2- or 3-drug protocol for killing
Page "was not a last-minute thing. He had been trying to educate himself
for several weeks.
He was getting information from the Department of Corrections and other
sources."
Long said he and Rounds talked several times Tuesday.
"He calls me on Tuesday morning, the day of the execution," Long said.
"I sort it out and say, 'Governor, as this relates to Mr. Page, this
issue is resolved.' ... The governor says, 'I want the statutes complied
with. I want to do this by the numbers, by the books. I don't care what
Elijah Page thinks.'"
The chain of events gave the impression of a last-minute scramble, and
that puts undue pressure on the Legislature, Moore said.
'De facto repeal' of corporal punishment
"If we do nothing at all, somebody's got a good argument in the Supreme
Court based on comments from the attorney general's office and the
governor's office," he said. "They've got a good basis for saying you
don't even have a death penalty. You yourselves are questioning your own
law. Defense attorneys would have a heyday with this."
Lee Schoenbeck, a Watertown senator who is not seeking re-election,
thinks last week's events put capital punishment on hold.
"This was a de facto repeal of the death penalty," said Schoenbeck, who
opposes capital punishment. "I think that this next session when the
legislation is proposed to change the procedure, you're going to be
looking at the debate as to whether we should have the death penalty in
South Dakota. If we don't change the procedures, there won't be any
executions."
Long said inaction by lawmakers would return the issue to where it is
now, though with a different ending.
"If the Legislature does nothing, then come July 1, there will be a
circuit judge who will set an execution date for Mr. Page again and
we'll see what happens," the attorney general said.
Asked how the execution could be carried out, given what happened last
week, Long said: "The state could proceed with two chemicals rather than
three, in strict compliance with the statute. That's what could happen."
Separating policy, law from precedent
Chris Hutton, law professor at the University of South Dakota, said
Rounds was using his constitutional power in issuing a stay of
execution. But neither that action nor the reasoning behind it binds a
future governor, she said. Nor would it bind Rounds if he is re-elected.
If the Legislature does not change the law as Rounds hopes, he would be
free to allow the execution to continue with a two-drug sequence, Hutton
said.
"A governor might feel constrained, just to be consistent, but that's a
matter of the governor's choice, not a legal requirement," Hutton said.
Discussion will center on whether to amend or update the state code.
Moore said the law already allows for a three-drug sequence by referring
to "a substance or substances" used in an execution. That wording is
open-ended, he said. But an earlier segment of the law, SDCL 23a-27a-32,
makes note of 2 steps, though the word "two" does not appear.
A government's leeway in executing a criminal has been disputed in many
states. Many have laws virtually identical to South Dakota's yet use a
3-drug sequence, Long said.
In North Carolina, a condemned inmate said it was illegal for a state to
use 3 drugs if the law indicated using two.
"The North Carolina Supreme Court said, 'We don't care. The statute
cannot be fairly read to limit the warden to 2,'" Long said. "Is that
binding on the South Dakota Supreme Court? I don't know the answer to
that. You might find three justices on the South Dakota Supreme Court
who don't agree with that analysis."
The governor compared his decision on Page to his veto in 2004 of a bill
designed to ban abortion. He subsequently signed a ban in 2006 that's on
the fall ballot. He said the 2004 version was flawed because of
unintended legal consequences and thought the same last week in trying
to protect state employees from executing a criminal in a manner outside
the bounds of state law.
Asked whether death penalty opponents had thanked him last week for
sparing Page, he said his office had received calls.
"There may have been some phone calls," he said. "They may be surprised
to find I'm more convinced now than ever there is unfortunately a place
for the death penalty in South Dakota. I could not get past the fact
that these individuals, if they ever came off death row, would be in a
position to harm others."
(source: Argus Leader)