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Ramifications of the execution decision

Okay, everybody now knows Gov. Mike Rounds temporarily delayed Elijah Page’s execution because of concerns over the execution procedure. I will leave to political pundits the impact, if any, of that decision on his re-election bid and that of Attorney General Larry Long (who, given the ballot question decisions, doesn’t seem to be having a good month). I’m more interested in the longer term ramifications.

The first thing that came to my mind when I heard the Governor say he wants the legislature to look at and perhaps change the protocol was: Can the new law apply to a case where the conviction, sentence and warrant of execution occurred before the law went into effect? The general rule in South Dakota, like other states, is that statutes and amendments are presumed not to apply retroactively. There are, however, a variety of exceptions to that rule. One is for laws that are “procedural” in nature as opposed to “substantive.” It strikes me that a statute prescribing a method of execution is far more substantive than procedural. Yet that is not the only exception to the general rule and I have not researched the application of any of the exceptions to death penalty cases, let alone the role, if any, of the constitutional prohibitions against ex post facto laws.

Second, as South Dakota Moderate notes, this brings the whole death penalty issue back into play in the legislature. The death penalty passed only by the narrowest of margins when it was reinstated in 1979. Throw in the fact the Legislature this year banned most abortions out of respect for life, legislators are in the midst of two of the most morality-based hot button issues in the entire nation. There’s s absolutely no way to predict how the death penalty debate will ultimately shake out, particularly since this is an election year and we don’t know who will be sitting during the next session.

Finally, adopting a three drug protocol doesn’t necessarily mean all is well and good. It is not immune from controversy. As the local daily noted in passing, that protocol faces various challenges, including constitutional ones, in several venues. While Page apparently waived any claim regarding use of the so-called “three drug cocktail,” that doesn’t mean a new statute allowing it will escape challenge even if not by Page.

All in all, the ripple effect of the reprieve granted by Rounds may be more significant and complex than appeared at first blush.

DISCLOSURE: One of my law partners represents the death row inmate who recently raised the issue of the execution protocol in the challenges to his death sentence. I have never participated in or looked at the files and pleadings in that case. The foregoing represents my thoughts and opinions only and is not based upon anything other than general knowledge.


Society has erected the gallows at the end of the lane instead of guideposts and direction boards at the beginning.

Edward Bulwer-Lytton

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1 comment to Ramifications of the execution decision

  • anon afpd

    Tim, as to your first point, the Eighth Amendment prohibits cruel and unusual punishments according to _contemporary_ standards of decency. Also, and this is off the top of my head, but I believe the prohibition on enforcement of ex post facto laws goes one-way (in favor of the person the state brings the punishment against).