Tuesday, April 12, 2011
SD official says execution drug helps in appeals
CHET BROKAW, Associated Press
Published 03:06 p.m., Tuesday, April 12, 2011
PIERRE, S.D. (AP) — South Dakota recently bought a scarce lethal injection drug partly to help fight against appeals by the state's two death row inmates, Attorney General Marty Jackley said Tuesday.
The purchase of sodium thiopental at least settles the question of whether the state would have the sedative in the event executions are set for the two men, although other issues remain in the appeals that challenge the constitutionality of the lethal injection process, Jackley said.
"One of the bases for the state to obtain the drug at this time, even though there's no execution date scheduled, is not only the existence of the shortage, but to take that issue out of the litigation," Jackley said.
The attorney general announced last week that South Dakota paid $5,000 for 500 grams of sodium thiopental, enough to carry out the execution of the two death row inmates. He has not said where the drug was obtained.
Sodium thiopental is part of a three-drug injection cocktail used by most of the 34 death penalty states. Sodium thiopental renders the condemned person unconscious, while the other two stop the breathing and heart.
The sole U.S. manufacturer of sodium thiopental stopped making the drug last year, and a pharmaceutical company in India announced last week it was no longer selling the drug to American prison officials.
Both South Dakota death penalty cases have long and complicated histories. The South Dakota Supreme Court upheld both men's convictions and sentences in their direct appeals, but both have pursued secondary appeals.
A federal court appeal by Donald Moeller argues that the state did not follow proper procedures in setting its execution method. Moeller also contends the execution method violates the constitutional ban on cruel and unusual punishment, partly because drugs obtained from foreign sources not approved by federal agencies could be flawed and cause pain during the execution.
The other death row inmate, Charles Russell Rhines, also is challenging South Dakota's method of execution. Rhines, 54, convicted of killing 22-year-old Donnivan Schaeffer during a 1992 burglary of a Rapid City doughnut shop, has appeals tied up in both state and federal court.
Moeller, 58, was sentenced to death for the 1990 rape and killing of 9-year-old Becky O'Connell of Sioux Falls.
A federal judge has rejected Moeller's arguments that mistakes were made in his trial, and that part of his case is now pending in a federal appeals court.
However, the second part of Moeller's appeal remains in federal court in South Dakota, where he has asked a judge to prevent his execution because of constitutional flaws in the state's execution scheme.
Moeller's court-appointed lawyer, Deborah Ann Czuba of the Federal Public Defender's Office in Little Rock, Ark., said Tuesday she cannot comment on pending cases.
But in a proposed amended complaint filed in federal court March 16, Czuba argues South Dakota has not followed required procedures for setting execution rules, has given prison officials too much discretion in setting the execution method, has not obtained federal Food and Drug Administration approval to use sodium thiopental, and has no federal prescription for the drug.
A sedative obtained from a foreign source might be flawed, which would leave Moeller conscious to suffer excruciating pain when the second two drugs are used to stop his breathing and heartbeat, the appeal says.
The state has asked U.S. District Judge Lawrence Piersol of Sioux Falls to throw out Moeller's challenge to the lethal injection process because state officials argue new safeguards will keep a condemned inmate from feeling any pain when the death-inducing chemicals are delivered.
"The state's position is it's constitutional," Jackley said.
The attorney general the state will make sure the sedative is effective and of high quality.
"We've obtained the drug. We'll keep legal custody of the drug. We'll appropriately test the chemical properties of the drug,'" Jackley said.
The drug also could be provided to others to conduct their own tests, he said.