Examining SD's Lethal Injection Method

Oct 11, 2012

A longtime death row inmate has ended his court battle to delay his execution. Wednesday a federal judge accepted Donald Moeller’s request to throw out his challenge to South Dakota’s lethal injection protocol. That leaves him no options to appeal his death sentence. That’s scheduled for sometime during the week of October 28th.

It’s been more than 22 years since Donald Moeller raped and killed a 9-year-old girl. In October’s federal court hearing, the death row inmate admitted his guilt. 

"I killed the little girl," Moeller said. "It is just that the punishment needs to be concluded."

Moeller appears staunch in his choice to end the court proceedings and face his sentence, but even his attorneys didn’t agree. A South Dakota lawyer filed the dismissal on Moeller’s behalf; however, federal public defenders argued in court that the convicted killer isn’t competent to make a decision that ends his fight against the state’s lethal injection method. Judge Lawrence Piersol questioned Moeller about his death sentence.

Judge Piersol: You could be subject to more than a little pain. You understand?
Moeller: Yes.
Judge Piersol: You still want the case dismissed?
Moeller: Yes, I do.
Judge Piersol: Why?
Moeller: Because it’s right.

Donald Moeller may accept his death sentence by South Dakota’s means, but the battle over a one-drug lethal injection method is far from finished. If Moeller’s attorney hadn’t requested the dismissal, lawyers would have sparred over whether using pentobarbital alone is a constitutional method of death.

South Dakota Attorney General Marty Jackley prepared arguments the judge requested. First attorneys were to discuss whether it’s cruel or constitutional to inject a singular chemical into a person’s body.
 
"The second part of that was, if they’re facially constitutional, is the way that South Dakota’s applying them unconstitutional?" Jackley says. "And if it is, we call that an as-applied attack. Then if it is unconstitutional, what does South Dakota need to do so that it can apply them constitutionally?"

Those arguments never made it into federal court, though. Another South Dakota death row inmate, Charles Russell Rhines, argues the same drug protocol challenge in federal court. His hearing isn’t until November. Two South Dakota inmates face death by lethal injection sometime this month, before those arguments air. In fact, convicted murderer Eric Robert could die as early as Sunday.

Attorney General Marty Jackley says the state has “safeguards in place to assure a humane and dignified execution process.” Not everyone is confident in the one-drug method for execution.

"If you’ve never done a single-drug execution in the state, it’s hard to prove that it would be painful or prove that it would be very lengthy and drawn-out and somewhat torturous," Richard Dieter says. "There’s no way to experiment – at least on humans – for this exact scenario."

Dieter is the executive director of the Death Penalty Information Center in Washington, D.C. He says a handful of other states have carried out lethal injections using only pentobarbital. That’s the drug South Dakota plans to use. Other inmates across the country have challenged the method in federal court, and judges have offered decisions. 

"Well, they have ruled in the sense of not finding enough to stop it, which isn’t to say they’ve had the kind of hearing that I describe where you would invite in medical experts on different sides of the question," Dieter says. "The states that have gone forward have used the standard that the Supreme Court said when it looked at the three drugs."

Dieter says most states have used a three-drug cocktail for the last couple of decades, but new regulations and availability issues have pushed states – including South Dakota – away from a multi-drug lethal injection method.

"It has been raised in a number of states that if this were a new drug or a new procedure in the medical field in hospitals, there would be all kinds of controls over doing this on especially unwilling human subjects. It would be unethical, and there would have to be periods of testing. Now the death penalty is unique," Dieter says.

Dieter says that to explain that gathering data is far more challenging when it’s impossible to ask the person experiencing the procedure what they felt. It’s the death penalty. He says guards and wardens are experts in their field, but they’re not anesthesiologists. Dieter argues it makes sense for people tasked with such a serious burden of carrying out a sentence of death to hear from experts about the potential risks of the most recent method.

"Boy, there’s a lot, and to just go forward and say, well, he’s going to die anyhow I think is too outside of our ethical and even legal norms," Dieter says. "So some states have put a hold on executions for just the reasons of being very careful with lethal injections. Other states – include Texas since they do the most executions – have been able to go forward despite the challenges."

South Dakota officials plan to do the same. Attorney General Marty Jackley says the state’s methods are sound and authorities are prepared for the executions.

"Those protocols are in place. They’re in writing. They set forth, again, what the drug protocols are with respect to what drug is to be used, including the one-drug protocol, as well as the necessary training of several weeks that are being put in place for both the anticipated Robert as well as Moeller executions," Jackley says.

With one execution set for the week of October 14th and another slated two weeks later, state officials say they’re confident the one-drug method of lethal injection is safe.

Donald Moeller is out of legal options to stay his execution. Only an appropriate court or the Governor of South Dakota can step in and halt the execution scheduled for this month. Eric Robert’s execution is set for next week; although he has appeal available, Robert’s attorney has repeatedly indicated the death row inmate plans to accept the lethal injection as it’s scheduled.