By Canadian Press

Judge declines to delay South Dakota execution

Nov 2, 2019 | 2:46 PM

SIOUX FALLS, S.D. — A judge on Thursday denied a South Dakota inmate’s request to delay his execution over concerns about the drug that the state plans to use, rejecting the man’s contention that it doesn’t act quickly enough.

Charles Rhines, scheduled to die by lethal injection next week in the 1992 stabbing of a 22-year-old doughnut shop worker, had argued that pentobarbital is not an “ultra-short-acting” drug as required by state law. He had sought a full trial on his complaint.

But Second Circuit Judge Jon Sogn wrote in a 23-page order that when the drug is used in lethal doses, it operates “virtually the same” as other drugs that Rhines cited, including thiopental. In fact, Sogn said, pentobarbital in lethal doses may even be faster to induce unconsciousness.

The judge also wrote that he doubted that Rhines’ complaint was motivated by a desire to change the drug used to execute him.

“Instead, the real purpose behind his claim is likely to seek a delay of his execution,” Sogn wrote.

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Attorney General Jason Ravnsborg praised the ruling, saying justice for Rhines’ victim — Donnivan Schaeffer — is long overdue.

“Rhines has had his day in court,” Ravnsborg said. “It is now time for him to serve his sentence.”

An attorney for Rhines didn’t immediately respond to a message.

The exact date of Rhines’ execution was to be announced 48 hours in advance.

South Dakota uses a two-drug protocol in executions: A barbiturate followed by a paralytic agent. The barbiturate — in this case pentobarbital — is enough by itself to cause death, Sogn wrote, with the paralytic used to ensure death.

A Montana court ruled in 2015 that pentobarbital was not “ultra-short-acting,” but several other states, including Georgia, Missouri and Texas, use it in executions.

Pentobarbital was used last year when South Dakota executed Rodney Berget, who killed a prison guard during a 2011 escape attempt. Berget was pronounced dead 12 minutes after the lethal injection began, and a transcript released afterward said Berget asked after the injection was administered: “Is it supposed to feel like that?” That prompted a national group that studies capital punishment to call on the state to release more details about the drug used.

Sogn acknowledged the Montana decision and Rhines’ heavy reliance on it but noted it didn’t appear to have been appealed to that state’s Supreme Court. He also cited expert testimony by a state witness who said barbiturate classifications as “ultra short acting,” ”short acting” and “fast acting” are not absolute and can change depending on dosage and whether they are taken by pill or injection.

Rhines lost two other appeals to delay his execution last week. In those appeals, he argued that he should be able to meet with mental health experts to prepare a clemency application and that the state’s execution policies don’t follow the state’s rule-making requirement.

Rhines stabbed Schaeffer in the skull, stomach and back when Schaeffer interrupted him as Rhines burglarized the doughnut shop where Schaeffer worked. Rhines, who had been fired from the shop three weeks earlier, tied up Schaeffer. According to a police investigator, Rhines rejected Schaeffer’s pleas for mercy.

The Associated Press