Press "Enter" to skip to content

Should Condemned Criminals Get to Choose Their Poison?

In the latest effort to delay his execution, death row inmate Charles Russell Rhines is asking the court to let him choose the drug that the state will use to kill him as retribution for killing a man in a Rapid City doughnut shop in 1992.

Hmm… Rhines already got to choose a knife to kill one defenseless man; does he really deserve to choose the instrument of death for another?

I know, I know, the argument is moot. I maintain that we shouldn’t be killing anyone. When we strap Rhines down and inject him with poison next week, we (all of us, the entire statewide community that allows killing in our name) will commit our 21st such grave moral error.

But let us for a moment assume that the state has adopted just punishments. Do convicted criminals retain any right to choose their punishment, or the means by which that punishment will be carried out? If the law, created by political deliberation, applied and scrutinized by due process, deems the administration of a certain drug to be the proper punishment for a certain crime, does any individual retain a right to choose a punishment different from that prescribed by law?

Perhaps the answer lies in the sort of case-by-case justice we trust judges to apply. But before you get to the specifics of this punishment for this convict for this really heinous crime, consider the question in general: what rights do convicts retain in choosing their punishment?

31 Comments

  1. Porter Lansing 2019-10-30 16:43

    Prison Without Punishment
    Germany allows inmates to wear their own clothes, cook their own meals, and have romantic visits. Could that work in the United States? In many states prison seems to be more about citizens getting revenge against lawbreakers and making them suffer, than about anything else.
    https://www.themarshallproject.org/2015/09/25/prison-without-punishment

  2. John Dale 2019-10-30 17:02

    Interestingly, killing is biblically moral if you can avoid false positives.

    Killing an innocent man, however, represents the destructive power of a black hole with respect to morality.

    Therefore, since it is too risky, the state should not use the death penalty.

  3. John Dale 2019-10-30 17:03

    Assuming that the state could have 100% accuracy in determining who deserves the death penalty, the criminal should not be able to choose the method.

  4. mike from iowa 2019-10-30 18:04

    Being forced to be in South Dakota should be punishment enough for anyone, especially with the condition of the state and environment under 40 years of wingnuttery.

    I doubt anyone ever comes up with a completely safe, humane death for death row inmates. And with drug cocktails , using inmates as guinea pigs sounds cruel. OTOH, law enforcement made a drug bust and took in enough fentanyl to kill everyone in Ohio. Yikes.

  5. grudznick 2019-10-30 18:11

    I thought fellows and gals on the row of death got to pick the method, like hanging, electrolysis, beheading or firing squad, in addition to the leaching of poison into their bodies.

    grudznick would add “goon squad” to the options, and have that be the default option if the criminal doesn’t choose when offered the menu.

  6. Old Spec.5 2019-10-30 18:21

    From what I have gathered this pending death is wrong as is abortion. Both is the loss of a soul. Next time anyone belles up with God tell us what that deity thinks

  7. Cory Allen Heidelberger Post author | 2019-10-30 19:02

    Interesting example from Germany, Porter… but even there, the law sets the parameters for the punishment, not the convicts, right?

  8. Porter Lansing 2019-10-30 19:12

    Yes.

  9. Clyde 2019-10-30 20:46

    Cory, you picked an appropriate macabre subject for Halloween!

  10. Debbo 2019-10-30 21:37

    If the state had a list of medically approved (yikes!) fatal drugs for inmates to choose from, I’d say yes. SD has no such arrangement so no, he cannot choose.

    Best option? Life in prison. We wouldn’t be hearing about this murderer any longer, the state wouldn’t be spending all this money in court, it would be all over and done with 20 years ago and the victim’s family wouldn’t have to keep hearing about this guy.

  11. Robert Kolbe 2019-10-30 23:33

    Yes Death row inmates should have a choice of their death.
    Electric chair
    Firing squad
    Lethal injection
    Or
    Parachute drop sans parachute

  12. bearcreekbat 2019-10-31 01:54

    If the question is whether Rhines should have the benefit of a statutory right, then the answer is yes.

    When Rhines was convicted, South Dakota law stipulated that executions be carried out with “ultra-short-acting” drugs. Legislators changed the law in 2007 but stipulated that inmates sentenced to death can choose the manner of execution in effect when they were convicted.

    http://www.startribune.com/south-dakota-inmate-seeks-delay-to-choose-own-execution-drug/564062812/

    So to rephrase Cory’s question slightly, perhaps we should be asking:

    If the law, created by political deliberation, applied and scrutinized by due process, deems the administration of a certain drug to be the proper punishment for a certain crime, does [the State] retain a right to choose a punishment different from that prescribed by law?

    If we are talking about what the statutes ought to be, however, then one has to remember the 8th Amendment’s command “nor cruel and unusual punishments inflicted” and decide whether any particular method of execution, say drawing and quartering, is “cruel and unusual.” If so, and unless we desire to repeal this part of the 8th Amendment, then it would make sense to allow the prisoner to reject that method of execution. And ultimately, the question of whether to use an “ultra-short-acting” drug is really a question of whether this method satisfies the prohibition of our 8th Amendment.

    As for Rhines, he surely should be entitled to whatever statutory options the legislature has granted someone in his circumstances. Otherwise, why not just bludgen him to death in his cell without any legal process and get it over with?

  13. Cory Allen Heidelberger Post author | 2019-10-31 05:38

    Debbo, does any other state allow such choice by death-row inmates?

    Robert, why should we allow that choice? Are there other situations in which we allow convicts such choice of punishment? What end does such choice serve?

  14. Cory Allen Heidelberger Post author | 2019-10-31 05:57

    Ah, there’s the statute—SDCL 23A-27A-32.1:

    Any person convicted of a capital offense or sentenced to death prior to July 1, 2007 may choose to be executed in the manner provided in § 23A-27A-32 or in the manner provided by South Dakota law at the time of the person’s conviction or sentence. The person shall choose by indicating in writing to the warden not less than seven days prior to the scheduled week of execution the manner of execution chosen. If the person fails or refuses to choose in the time provided under this section, then the person shall be executed as provided in § 23A-27A-32.

    I was wondering why I wasn’t hearing “cruel and unusual” arguments, and this appears to be it. If I understand from BCB’s comment correctly, the defendant isn’t really questioning whether drug X violates the 8th Amendment; the defendant is simply arguing for application of statute… at which point I’m wondering why there’s even a court challenge?

    If the state’s preferred execution drug, pentobarbital, is only a short-acting drug (and I don’t need a pharmacologist to tell me that; dumb old Google verifies that classificaiton pretty quickly) and the condemned man wants ultra-short-acting thiopental or methohexital, then there’s no debate: the law says he gets one of those ultra-short-acting drugs.

    But now that BCB has pointed out the statutory background of the argument, I wonder about the statute. The change came in 2007 HB 1175, backed by Governor Rounds and AG Larry Long. Pre-2007, the statute said, “The punishment of death shall be inflicted by the intravenous administration of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent and continuing the application thereof until the convict is pronounced dead by a licensed physician according to accepted standards of medical practice.” 2007 HB 1175 changed the method of execution to “intravenous injection of a substance or substances in a lethal quantity. 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.” HB 1175 also added the convict choice… but I wonder: was the choice given in recognition of some fundamental right of prisoners to have some say over their punishment? Was it given to prevent one avenue of appeal and allow inmates to have the execution the jury thought they’d get when they were convicted?

  15. mike from iowa 2019-10-31 07:42

    What if the makers of those other fast acting drugs refuse to allow them to be used in executions? Does the prisoner go free?

  16. grudznick 2019-10-31 07:58

    Yes, Mr. H. As grudznick pointed out at 18:11 blog time yesterday.

  17. grudznick 2019-10-31 08:02

    Mr. Mike, if he wants a drug and it’s not there then they set him loose in Iowa with a goon squad on his trail.

  18. Porter Lansing 2019-10-31 08:12

    grudznick … As strange as you are, for some reason that term “goon squad” always makes me chuckle a bit. I guess I’m a little strange, too. It was a goon squad that used to chase Popeye the Sailor, until he ate his spinach and saved Olive Oyle.
    PS = the G in 5G stands for goats

  19. bearcreekbat 2019-10-31 10:21

    Cory, the change was made to avoid any ex-post-facto argument against application of the change in the manner of execution to using an “intravenous injection of a substance or substances in a lethal quantity.” To the extent that this made the punishment by death more severe, such a change could not be constitutionally applied to a person sentenced to death before the change, which is what occurred in Rhine’s case. The Ex-Post-Facto Clause prohibits increasing the punishment for a crime after the crime has been committed.

    Ex post facto law, law that retroactively makes criminal conduct that was not criminal when performed, increases the punishment for crimes already committed, or changes the rules of procedure in force at the time an alleged crime was committed in a way substantially disadvantageous to the accused.

    The Constitution of the United States forbids Congress and the states to pass any ex post facto law. . . . Implicit in the prohibition is the notion that individuals can be punished only in accordance with standards of conduct that they might have ascertained before acting. . . .

    https://www.britannica.com/topic/ex-post-facto-law#targetText=Ex%20post%20facto%20law%2C%20law,substantially%20disadvantageous%20to%20the%20accused.

    Hence, rather than acting out of sympathy or some belief that a condemned prisoner should have the right to choose the method of execution, enactment of this “choice” statute was simply facing the reality that the legislature lacked the power to force a condemned person to submit to a more severe method of execution after the crime was committed.

  20. Cory Allen Heidelberger Post author | 2019-10-31 20:11

    Interesting prospect, Mike, that the execution of a prisoner could be left in limbo by the unavailability of poison. No statute would trigger release; I assume the prisoner would just remain on death row until the state could secure a legal poison or until nature denied us the satisfaction of killing the man ourselves.

    The court ruled against Rhines today, not on the merits but on res judicata, saying the court ruled pentobarbital an ultra-short-acting in 2011 and Rhines should have appealed then.

  21. Roger Cornelius 2019-11-01 20:50

    Charles Rhines is scheduled to be executed on Monday Nov. 4 at 1:30 pm (CST).

  22. John Dale 2019-11-02 09:39

    Roger Cornelius – sad we have to go through the execution of a human being .. but sometimes I think it’s justified.

  23. Dicta 2019-11-05 09:00

    Rines was an absolute pile of garbage of a human being. He seemed without remorse and then “forgave” the parents of the boy he killed for hating him. Up until the end, he seemed incapable of showing empathy.

    That being said: god, I hope the death penalty is eliminated as an option sooner rather than later.

  24. John 2019-11-05 09:07

    Is an island available… a la Papillion style? I know Australia is off the table, but there has to be another uninhabited place we can send these people to eek out an existence without pulling the trigger ourselves. Make sure there is food and water and let them live (or die) the way God intends. We’ve spent money on dumber things.

  25. John Dale 2019-11-05 10:00

    John, We tried that. Got Australia.

    And New Jersey.

    da da CHING!

    Nyuk nyuk.

  26. mike from iowa 2019-11-05 10:04

    an absolute pile of garbage still has constitutional rights. A segment of the population has been misinformed about prison life.

  27. Dicta 2019-11-05 10:13

    I never said he didn’t, Mike. I’d prefer he not be put to death at all.

  28. mike from iowa 2019-11-05 10:56

    Dicta, I never even insinuated you said he doesn’t deserve rights. I just pointed that out. As a human with rights he should not have had his fate in the hands of prejudiced jurors.

    As for the death penalty, I usually favor abolishing t, but, then I realized it is an important tool in wiping out wingnut corruption in states and the kremlin annex in DC.

  29. Cory Allen Heidelberger Post author | 2019-11-06 12:54

    I agree with Dicta. Rhines’s vile final words are unworthy of hearing… but we still have no business killing restrained criminals, even the most vile.

  30. Robin Friday 2019-11-06 14:35

    grudzie, electrolysis rarely results in death, lol. Did you do that on purpose? :-)

Comments are closed.