Flawless execution: examining ways to reduce South Dakota's lethal injection risks.

• Author: Chicoine, Nathan R.

As the constitutional standards for the manner of execution of a death sentence are evolving, South Dakota faces potential scrutiny. Baze v. Rees, a 2008 decision by the Supreme Court of the United States, sets the standard for a lethal injection protocol that aligns with the Eighth Amendment's Cruel and Unusual Punishment Clause. This decision provides an opportunity for states to revise their protocol to satisfy constitutional standards through the proper administration of lethal injection. Although South Dakota's manner of execution is facially constitutional it lacks safeguards to protect against the risk of administering cruel and unusual punishment. The lethal injection protocol reviewed by the Supreme Court of the United States and those of other states in the Eighth Circuit Court of Appeals can serve as models for revision. South Dakota, by statute and administrative rule, should establish lethal injection protocol that identifies the substances, specifies intravenous (IV) team experience and training, provides for inmate observation and examination, and describes backup IV procedures with the goal of reducing discretion and ensuring consistently humane executions.

1. INTRODUCTION

   One currently popular challenge to lethal injection is that it lacks safeguards to prevent cruel and unusual punishment as prohibited by the Eighth Amendment to the Constitution of the United States. (1) The predominant and nearly universal manner of execution in the United States uses a three-drug lethal injection to implement the death penalty. (2) South Dakota does not specify its protocol for the administration of lethal injection. (3) While South Dakota and other states continue to rely on vague or outdated statutory schemes, litigation over execution protocol consumes Judicial resources, delays justice, and may result in stays of execution. (4)

   This comment will analyze South Dakota's manner of execution set forth in S.D.C.L. section 23A-27A-32 and its lethal injection policy. (5) First, it will outline the history of capital punishment in the United States, the challenges to capital punishment in the Supreme Court of the United States, and the lethal injection standards provided by the Court in Baze v. Rees. (6) This comment will also summarize lethal injection law in the Eighth Circuit Court of Appeals. (7) Then, it will review the history of capital punishment in South Dakota, the State's statutory history, and its lethal injection policy. (8) Next, this comment will discuss the standards of both Baze and of the Eighth Circuit Court of Appeals and their effects on South Dakota. (9) Lastly, this comment will analyze the safeguards of South Dakota's capital punishment scheme compared to those of other states and propose that South Dakota codify the lethal injection substances and revise its protocol by administrative rule to reduce the risk of cruel and unusual punishment. (l0)

2. BACKGROUND

   When colonists arrived in the New World, they brought with them the common-law imposition of capital punishment. (11) With the birth of the Nation, capital punishment remained a widespread practice with continued acceptance. (12) When the Bill of Rights was ratified, capital punishment was common in every state. (13) The Fifth Amendment's reference to capital crimes indicates contemplation of capital punishment. (14) At the same time, the Eighth Amendment prohibits "cruel and unusual punishment." (15) Over three quarters of a century later, the Fourteenth Amendment reaffirmed the endorsement of capital punishment in its language. (16) Most states continued to punish by death into the 20th century but began to limit the application of capital punishment by narrowing the class of capital crimes and then by implementing laws that expressly granted sentencing discretion to juries. (17)

   The judiciary undertakes the duty to assess the constitutionality of punishment. (18) It also determines whether state legislative measures under the Fourteenth Amendment (19) or federal legislation overstep the bounds of the Eighth Amendment. (20) Consequently, courts have adjudicated an abundance of cases concerning the constitutionality of capital punishment under the Eighth Amendment. (21) The Supreme Court of the United States has ruled periodically that capital punishment was neither per se "cruel and unusual" nor was the manner in which it was applied unconstitutional. (22) The history of death penalty litigation provides insight into the current views of the Supreme Court of the United States on the constitutionality of capital punishment and lethal injection. (23)

   1. CAPITAL PUNISHMENT CHALLENGES IN THE SUPREME COURT OF THE UNITED STATES

      In 1972, the Supreme Court of the United States decided in Furman v. Georgia that the death penalty was cruel and unusual punishment under state schemes in place at that time. The Court held that the imposition of the death penalty, as applied, was discriminatory, arbitrary, excessive, and thus, unconstitutional. (25) The separate opinions in Furman agreed that juror discretion should have been limited, (26) Four years later, in the landmark decision of Gregg v. Georgia, the Court revisited its ruling in Furman and held that the death penalty was not per se unconstitutional. (27)

      The Court held in Gregg that a punishment must comport with objective, contemporary values of the public. (28) One indication of public support for capital is legislation. (29) Another indication of contemporary, public values is jury decisions. (30) Not only must the public support the punishment, but the punishment must also accord with human dignity, (31) which means that "the punishment must not be 'excessive."' (32) A punishment's excessiveness depends partly on a determination of whether it involves the "unnecessary and wanton infliction of pain." (33) This requires that the punishment have penological justification. (34) The two penological justifications for capital punishment are retribution and deterrence. (35) The Court found that capital punishment has a retributive justification. (36) However, it assigned the duty of determining the death penalty's deterrence justification to the states because "[t]he value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions...." (37) The other aspect of excessiveness is whether the punishment is "grossly out of proportion to the severity of the crime." (38) The Court found that the death penalty is not always disproportionate to murder and that its severity is appropriate for the most heinous crimes. (39)

      Recently, the Court acknowledged that because the death penalty is constitutional, it must be implemented in a constitutional manner. (40) In Baze, the Court adjudicated the issue of whether the risk that Kentucky's lethal injection protocol would not be properly followed was cruel and unusual punishment. (41) The protocol that was challenged in Baze used three drugs in succession. (42) The first drug that would have been administered was sodium thiopental (also known as Pentothol), which is a fast-acting barbiturate sedative. (43) In specified amounts, it induces unconsciousness. (44) Pancuronium bromide (also known as Pavulon), which is a paralytic agent, would have followed the sodium thiopental injection. (45) It inhibits movement and paralyzes the diaphragm, stopping respiration and facilitating death. (46) The inhibition of movement from the injection of pancuronium bromide also prevents execution witnesses from perceiving involuntary muscle spasms, which may occur with the third drug. (47) These spasms, if pancuronium bromide did not prevent them, could appear to witnesses as signs of consciousness and agony. (48) Potassium chloride, which induces cardiac arrest by interfering with the electrical stimulation of the heart's contractions, would have been the last drug administered. (49) Between injections of each drug, the IV team would have flushed the lines with a saline solution to prevent clogging. (50) The Court found that if properly administered, sodium thiopental ensures that the prisoner does not experience any pain from the paralysis caused by pancuronium bromide and from the cardiac arrest caused by potassium chloride. (51)

      The Court held that although all execution methods involve an inherent risk of pain, even if only from the possibility of failure to follow procedure, the Eighth Amendment does not require the implementation of risk-free execution. (52) However, under some circumstances, a risk of pain, as opposed to the actual infliction of pain, may be unconstitutional. (53) The conditions that create the risk must be "'sure or very likely to cause serious illness and needless suffering,' and give rise to 'sufficiently imminent dangers.'" (54) A constitutional violation requires a "substantial" or "objectively intolerable" risk of serious harm "that prevents prison officials from pleading that they were 'subjectively blameless.'" (55) For example, an execution that repeatedly failed, as opposed to an isolated accident, "would demonstrate an 'objectively intolerable risk of harm' that officials may not ignore." (56) The Court found that failure to administer sodium thiopental and induce unconsciousness properly would create a substantial risk of pain that would be unconstitutional. (57) However, the challenged protocol in Baze included safeguards that eliminated any substantial or imminent risk of improper administration and was constitutional. (58) The most significant of the safeguards was the written protocol's requirement that IV team members have one year of professional experience and participate in practice sessions. (59) Other safeguards included primary and backup IV lines as well as observation for signs of IV problems by the warden or deputy who would initiate...