Flawless Execution: Examining Ways to Reduce South Dakota's Lethal Injection Risks

Article excerpt

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.

I. 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 (3) While South Dakota and other states continue to rely on vague or outdated statutory schemes, litigation over execution protocol consumes Judicial resources, delays justice, and may result in stays of execution.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)

II. 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. …