South Dakota's new capitol punishment laws went into effect July 1. The legislation lets the warden decide how to carry out a lethal injection and how many drugs are used. The new laws also prohibit physicians from witnessing executions. Post-mortem examinations are no longer required on the body.
State Rep. Bill Thompson (D-Sioux Falls) says he opposed the changes in law.
"The state has not dictated to any degree how the execution will be carried out. I know that makes it easier in dealing with the number of chemicals and lethal injection and so on, and who's responsible for doing what," says Thompson. "But it seems to me it also introduces a complexity because it becomes capricious and arbitrary the execution itself because of a lack of stated protocol."
There are four men on South Dakota's death row including Elijah Page. Page and two other men beat, stabbed and tortured Chester Allen Poage. Page was convicted seven years ago for the brutal murder of Poage in Spearfish. Page pleaded guilty and a judge sentenced him to die. John Fitzgerald was the prosecutor in that case and he asked for the death penalty.
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"There are just some crimes that are so over the top that the death penalty is the only punishment that fits the crime. It's the only punishment that society can feel that justice is served," Fitzgerald says.
Elijah Page has stopped his appeals and has asked to die. He won't challenge the state's execution laws.
But that doesn't mean the three other men on South Dakota's death row won't. Donald Moeller is one of those men. Moeller's attorney says in court documents the governor essentially declared the old death penalty laws unconstitutional, therefore Donald Moeller should have his death sentence reduced to life without parole.
For others, the real debate isn't how death row inmates should die, but whether they should die. Gregory Joseph, state policy director with the National Coalition to Abolish the Death Penalty, doubts the new South Dakota laws will stand up in court. Joseph says South Dakota lawmakers copied laws already being challenged in Florida and California.
Questions about the constitutionality of lethal injection have been raised in nine states, including Florida and California. Those states have put all executions on hold until the matter is resolved. Gregory Joseph says the new South Dakota laws create a veil of secrecy around the execution chamber.
"The fact that you will not be able to know or learn from your mistakes by having a postmortem autopsy and measuring the levels of drugs in the individual's system to know what levels for the right body rate, they have done none of this," Joseph says. "They have actually passed laws that make it illegal for a physician to be in the room."
Prosecutor John Fitzgerald will witness Elijah Page's execution. He says people should be thinking of the victim, not the convicted criminal. Fitzgerald argues the details of this murder are so heinous, death should be the only punishment. Fitzgerald is frustrated some of those details are starting to fade when he retells the story of the murder.
"I forgot to mention how they mutilated his body," Fitzgerald says. "That basically, they kicked him so many times they kicked his ears off his head. That Elijah Page had at one point, he said, 'I got to quit now because my foot hurts.' Some of those details start to go away and the best thing is to remember the innocent life that was taken and the circumstances of the innocent life that was taken and focus on that."
Elijah Page is scheduled to die the week of July 9. The warden will give at least 48 hours notice for the date and time of the execution. Department of Correction documents list the three drugs that will be used in the execution.