SIOUX FALLS, S.D. (KELO) — The State of South Dakota argues that the execution of Charles Rhines should move forward next week, according to court papers filed Monday.
In a last-ditch effort to halt Rhines’ execution, attorneys on both sides are arguing the choice of drugs to execute the 63-year-old.
Rhines was sentenced to death on Jan. 29, 1993. Rhines was convicted for the murder of 22-year-old Donnivan Schaeffer during a burglary of a Rapid City donut shop. He is one of 2,673 prisoners total on death row.
He is scheduled to be executed between November 3 and 9.
Where the execution stands
Rhines has gone to the Supreme Court of the United States twice. Just last week, the 8th Circuit Court of Appeals dismissed his latest motion for his execution to be stayed. He could still go back to the U.S. Supreme Court in that case.
In the State of South Dakota, Rhines has had a number of cases. On Friday, the state Supreme Court denied a motion to stay his execution. However, there is still a case about the drugs being used in the execution moving through the courts.
The case in state court right now looks at the drugs that will be used to execute Rhines.
The current state law says, “the warden, subject to the approval of the secretary of corrections, shall determine the substances and the quantity of substances used for the punishment of death.”
Effectively, the state can use the drug of the warden’s choice. The last three executions used a one-drug lethal injection of pentobarbital. Before that, the state used a three-drug cocktail, but that process was ended due to supply issues.
Pentobarbital is a drug often used by veterinarians to euthanize animals. It is also used in physician-assisted suicide in Oregon, according to court documents. It has been used in the last three executions in South Dakota.
The three-drug cocktail stopped because of a shortage of sodium thiopental. The only American manufacturer for the drug announced it would no longer produce the drug. Meanwhile, European manufacturers wouldn’t supply the drug if it was for executions.
Sodium thiopental is a general anesthetic that “acts quickly, but only for a short time,” according to the American Chemical Society.
The European Union even banned the export of the drug to the United States.
Before the current state law was enacted in 2007, there was a two-drug cocktail that consisted of a lethal dose of an ultra-short acting barbiturate and a chemical paralytic.
A Barbiturate is a type of depressant drug that acts as a sedative.
EXPLORE: Lethal drugs used in South Dakota
The 2007 law opened the door to allow anyone sentenced to death before July 1, 2007, to choose between the current process to execute or the manner in South Dakota law at the time of conviction or sentence.
The inmate on death row is required, by law, to notify the warden seven days before the scheduled week of execution with his or her decision. If the person doesn’t respond, then they move forward as normal.
Rhines notified the warden on Oct. 1, 2019, saying he wanted to be executed in the manner that was in effect at the time of his sentencing.
That, according to court documents, was the two-drug cocktail:
- A lethal dose of an ultra-short acting barbiturate
- A chemical paralytic
In an October 17 letter from assistant attorney general Paul Swedlund, Rhines was notified that the state would use pentobarbital as the “ultra-short-acting barbiturate.”
Rhines’ attorneys argue that pentobarbital is not an ultra-short-acting barbiturate.
They argue that several courts have ruled that pentobarbital is not an ultra-short-acting barbiturate including in a Montana death row case.
In addition, they argue that medical journals say the same thing.
The lawyers argue also there are two ultra-short-acting barbiturates:
- Sodium methohexital
- Sodium thiopental
As explained earlier, sodium thiopental is difficult for states to get.
Sodium methohexital, otherwise known as Brevital, was recently adopted in Indiana as the choice of execution drugs. According to court filings in Indiana, no person in the U.S. has been put to death with Brevital. In addition, the manufacturer is attempting to block distribution for executions.
“As a pharmaceutical company, Par’s mission is to help improve the quality of life. The state of Indiana’s proposed use is contrary to our mission. Par is working with its distribution partners to establish distribution controls on Brevital® to preclude wholesalers from accepting orders from departments of correction,” the company said in a 2014 statement.
So, in theory, the state wouldn’t be able to carry out the execution with either of the only two ultra-short acting barbiturates, as Rhines’ legal team classifies them.
The state’s argument
The state disagrees, in court papers filed Monday. They argue two things: his request should have been brought sooner and that the research being argued against pentobarbital is flawed.
An “11th-hour motion”
The state calls this an “11th-hour motion” to stop the execution and argues that Rhines had eight years to make this decision. They argue that this was already decided in a 2008 case, where Rhines argued that the two-drug cocktail was cruel and unusual punishment, as defined in the U.S. Constitution.
“Because Rhines cannot provide an adequate explanation for why he has waited until the last minute to bring a claim he could have brought years ago… and because of the state’s and victims’ strong interest in having Rhines serve his sentence, Rhines’ motion should be denied,” the state wrote in a response to the restraining order and stay of execution.
The law didn’t specify a drug
The other arguments by the state are that Rhines couldn’t win his case by saying pentobarbital isn’t an ultra-short acting barbiturate.
The law at the time of Rhines’ conviction didn’t specify a specific drug. Instead, it said an ultra-short-acting barbiturate. According to the state, six courts have found no material difference between sodium thiopental and pentobarbital.
The drug is fast-acting
An anesthesiologist who testified on behalf of the state argues that “to a reasonable degree of medical certainty,” there is a very small chance the inmate could feel the effects of the next drug after being given pentobarbital.
The anesthesiologist also argues within 30-45 seconds after the drug reaches the brain, the person would lose consciousness and will stop breathing within 1-2 minutes of being administered.
Witness accounts of previous South Dakota executions support the belief that pentobarbital is the “same as” sodium thiopental, according to the state’s court filings.
The state also argues that the language of the term “ultra-short-acting” is confusing. They argue barbiturates are classified according to how quickly they wear off, not how long it takes for it to act on the system.
They argue the premise of picking a barbiturate based on how quickly it wears off defeats the purpose of an execution because the person shouldn’t see the effects wear off.
The Montana case is flawed
The Montana case was won on testimony from a doctor with “sweeping inconsistencies in his testimony over the years,” the state argues. That same doctor used to be an expert for Rhines.
The Montana case was also won because the law was written to consider the classification of an ultra-short-acting barbiturate “in a clinical setting.” The state argues execution is not a medical procedure and isn’t subject to clinical standards.
Rhines’ current expert is focused less on science and more on stopping the death penalty
The state says Rhines’ current expert, Dr. Craig Stevens, “does not appear to lack the zeal for distorting science in service of thwarting the implementation of the death penalty.”
They also argue two courts have dismissed his testimony.
A court hearing will be held on Tuesday.
Gov. Kristi Noem (R-SD) is aware of the litigation, according to press secretary Kristin Wileman.
“The Governor plans to move forward with the execution,” Wileman said in a statement to KELOLAND News.
In the federal case, Rhines’ attorneys could file a petition for rehearing in the Court of Appeals or file a petition for the U.S. Supreme Court to hear the case.
As of Monday afternoon, neither has happened.
KELOLAND News reached to his legal team to learn its next steps in the federal case. They have not yet responded to our request.
The execution can happen anytime between November 3 and 9. The warden will give a 48-hour notice of the execution.