Citing concern over the protocol for lethal injection, South Dakota Gov. Mike Rounds has delayed the scheduled execution of Elijah Page. Rounds announced the reprieve at a news conference approximately four hours before the 10 p.m. CDT time set for the execution.
Rounds said he was delaying the execution until at least July 1, 2007, to give the South Dakota Legislature time to review and possibly change South Dakota's capital punishment statutes. The announcement came as a surprise as Rounds had previously indicated he would not intervene. Page, who pleaded guilty to first-degree murder for the brutal March 2000 death of Chester Poage, withdrew all his appeals earlier this year and requested his death sentence be carried out. It would have been the first execution in South Dakota in 59 years.
Both Rounds and South Dakota Attorney General Larry Long, who also spoke at the press conference, said the problem is that South Dakota law calls for two drugs to be used in lethal injection. The 36 other states that use lethal injection for execution and the federal government use a three-drug protocol, Long said. South Dakota officials responsible for the execution were familiar with the latter but had not trained with the statutorily mandated approach, Round said.
Rounds said he asked Long's office to review and evaluate whether using the three drug protocol to execute Page would comply with state law. Following that review and conferences with Long, Rounds decided late Tuesday afternoon to postpone the execution for fear it might be illegal.
South Dakota law requires administering "a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent" until the convict is pronounced dead by a licensed physician. That statute was enacted in 1984 and Page's execution would have been the first since the statute was adopted.
Because the statute mandates the method of execution, Rounds and Long said there was a chance that failure to strictly follow it could render the execution illegal. Long said, however, that Page and his attorney were aware of the discrepancy between the statute and the planned method of execution but that Page made a "conscious decision" not to challenge the execution on that ground. That alone was not sufficient for Long and Rounds.
"The concern was more for the participation of South Dakota employees and South Dakota personnel in what could arguably be an illegal execution," Long said.
Rounds and Long both said the reprieve is temporary. Rounds wants the South Dakota Legislature to have the opportunity to look at the state's capital punishment statutes and determine if it wants to change them to conform with the protocol used by other states. He said the fact Page's execution would have occurred just months after his sentence was upheld by the South Dakota Supreme Court in January meant the issue had not previously been raised or brought to the legislature's attention.
The South Dakota Legislature does not convene again until January 2007. Laws enacted during a legislative session do not go into effect until July 1, leading Rounds to delay the execution until sometime after July 1, 2007.