National leader critical of how South Dakota handles death penalty cases

WASHINGTON, D.C. (KELO) — The executive director of the Death Penalty Information Center has two issues with the Charles Rhines execution and South Dakota’s death penalty process.

Robert Dunham leads the organization that provides information and analysis on death penalty issues. He said his group doesn’t take a position for or against the death penalty, but they are critical of the way it’s sometimes administered.

“If you’re going to have a death penalty, it’s absolutely critical that it be imposed and carried out in a manner that’s transparent and in a matter that’s fair,” Dunham said.

Fairness at sentencing

The first issue Dunham raised is fairness in sentencing.

“The law has been clear for decades that you can’t sentence somebody to death for who they are. You can sentence somebody to death for what they’ve done,” Dunham said.

Rhines is gay, and his legal team argues there is evidence that the jury may have sentenced him to death because of that. Dunman asks if it’s fair for somebody to be sentenced to death when one or more jurors may have done so because he’s gay.

“That doesn’t mean ultimately he should or shouldn’t be sentenced to death,” Dunham said. “It means he should be getting a fair trial and a fair sentencing to decide whether he does get sentenced to death.”

This issue is part of the case currently in the Supreme Court of the United States, ahead of next week’s scheduled execution.

Rhines wasn’t able to bring up this issue until recently, according to Dunham, because SCOTUS only issued opinions on it two years ago.

“I don’t think there’s any real question when you look at the issues in the case that Charles Rhines was unconstitutionally sentenced to death,” Dunham said. “You cannot sentence somebody based on stereotypes about who they are.”

Dunham will be watching to see if the court looks at the issue based on the law and not procedural technicalities.

Transparency in South Dakota

“The second question is one of transparency with a policy that’s this important and this final, we want to be able to have meaningful public oversight,” Dunham said.

He says South Dakota and other states are very secretive about the process.

“We don’t know whether they legally got the drugs,” Dunham said. “We don’t know whether the manufacturer is a reliable manufacturer.”

According to court documents, Rhines is going to be executed with a two-drug cocktail: pentobarbital and pancuronium bromide.

Pentobarbital is the drug at the center of a second appeal now in the South Dakota Supreme Court.

Dunham said it is believed that South Dakota may have gotten the pentobarbital from the State of Texas, but it’s unclear.

The only manufacturer of the drug that is FDA-approved in the U.S. is Akorn. The pharmaceutical company announced in 2015 that it would stop selling the drugs to prisons.

The other way to get it is from a compounding pharmacy. Dunham said that could open up problems too because it’s so secret.

In South Dakota, it is a misdemeanor to disclose the “name, address, qualifications, and other identifying information relating to the identity of any person or entity supplying or administering.”

“There are a whole range of things about this execution that we just don’t know,” Dunham said.

Dunham points to last year’s execution of Rodney Berget where his last words were, “Is it supposed to feel like that?” according to a transcript from the South Dakota Department of Corrections.  

“When you have a government that’s for the people and by the people, you shouldn’t be hiding critical information from the people. And that’s something that South Dakota is doing that they ought not be doing,” Dunham said.

As Dunham and the DPIC monitor death penalty cases across the country, he said he has learned a few things from SCOTUS.

“You can’t predict what they’re going to do today based on what they did yesterday,” he said.