Whether South Dakota death-row prisoner Charles Rhines (pictured) lives or dies may depend less on whether he was constitutionally convicted and sentenced to death and more on whether the courts value finality more than they value fairness. As Rhines filed two separate petitions in the U.S. Supreme Court and an appeal in the South Dakota Supreme Court on November 1, the South Dakota Department of Corrections announced that his execution, scheduled for the week of November 3, 2019, would be carried out shortly after noon on Monday, November 4. [UPDATE: The U.S. Supreme Court declined to intervene in Rhines’ case and he was executed.]

On November 1, Rhines’ lawyers filed a rare petition for writ of habeas corpus directly in the U.S. Supreme Court, asking it to take jurisdiction over the case and direct the lower federal courts to consider evidence that jurors had relied on anti-gay stereotypes in sentencing him to death. They also filed a petition for a writ of certiorari challenging South Dakota’s refusal to provide a defense mental health expert access to Rhines to conduct a psychological evaluation for his clemency application and procedural obstacles erected by a federal appeals court to obtaining review of that issue. At the same time, Rhines filed an appeal in the South Dakota Supreme Court challenging the trial court’s decision to permit the state to deviate from the execution protocol state law authorized for use in his case.

There is little dispute about the facts and the law that make Rhines’ death sentence constitutionally problematic. In February 2017, Supreme Court Chief Justice John Roberts declared that the “law punishes people for what they do, not who they are” and overturned a death sentence imposed based on “noxious” racial stereotypes. According to juror affidavits submitted with Rhines’ habeas petition: “One juror who had voted for death stated that ‘we also knew that [Mr. Rhines] was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.’ A second juror indicated about deliberations: ‘One juror made … a comment that if he’s gay, we’d be sending him where he wants to go if we voted for [life imprisonment without the possibility of parole].’ And a third juror noted that there had been ‘lots of discussion of homosexuality’ and ‘a lot of disgust.’” The petition notes that no court has ever reviewed the merits of Rhines’ juror-bias claim because the federal courts considered it part of “an unauthorized ‘second or successive’ petition.”

Rhines argues that he could not have raised the issue prior to 2017 because South Dakota did not permit use of juror statements to challenge the jury deliberation process. That year, the U.S. Supreme Court held in Peña-Rodriguez v. Colorado that state rules of evidence such as South Dakota’s “no-impeachment rule” cannot be interposed to exclude juror statements that provide evidence of a violation of the Sixth Amendment right to a trial by an impartial jury. In a statement, Rhines’ attorney, assistant federal defender Shawn Nolan, said, “Anti-gay prejudice should never have any role in sentencing a man to death. It is shocking that no court has ever considered the new evidence of some jurors’ anti-gay statements. The U.S. Supreme Court must intervene to make sure a court hears this evidence before Mr. Rhines is executed.”

South Dakota’s lawyers did not address the substance of Rhines’ claim in their brief to the Court, instead subjecting the federal community defender office that is representing Rhines to a broad ad hominem attack and falsely accusing them of “posing as” federal attorneys.

Rhines’ separate cert petition states, “In support of his request for gubernatorial clemency, he seeks to present psychiatric and neuropsychological experts to attest to his significant cognitive and psychiatric impairments. However, in the absence of a court order, state corrections officials have for years refused to permit his experts to evaluate Petitioner in person.” Rhines had sought orders from both the federal district court and the U.S. Court of Appeals for the Eighth Circuit to grant his expert access to Rhines for an evaluation, but both courts denied his request on procedural grounds. The cert petition challenges the federal appeals court’s procedural ruling.

In the South Dakota Supreme Court, Rhines is challenging the state’s intention to execute him with the drug pentobarbital, saying the use of the drug violates South Dakota law. Under that law, Rhines exercised an option available to prisoners sentenced to death before July 1, 2007 to be executed by a two-drug process involving an “ultra-short-acting” barbiturate and a paralytic drug. On October 29, Rhines presented testimony in a South Dakota trial court from Dr. Craig Stevens—a professor of pharmacology and physiology at Oklahoma State University—who told the court that pentobarbital is not “ultra-short-acting.” Only two drugs are classified as ultra-short-acting barbiturates, he said: sodium methohexital and sodium thiopental, which was in use at the time of Rhines’ sentencing. South Dakota prosecutors submitted a declaration from University of California Davis anesthesiologist Dr. Joseph Antognini, that at the lethal level of use proposed by the state, pentobarbital would be effectively the same as sodium thiopental. In his testimony, Stevens said the dosage of pentobarbital does not affect the chemical properties of the drug.

On October 31, South Dakota Second Circuit Court Judge Jon Sogn rejected Rhines’ suit, prompting the state supreme court appeal. Judge Sogn ruled that Rhines should have challenged the execution protocol in prior court proceedings in 2011. Sogn also credited Dr. Antognini’s declaration and attempted to distinguish a 2015 ruling by a Montana court that pentobarbital does not qualify as an ultra-fast-acting barbiturate.

The last three executions in South Dakota have been performed using a lethal dose of pentobarbital. The two drugs that Stevens identified as ultra-short-acting barbiturates are likely unavailable for use in executions. The sole U.S. manufacturer of sodium thiopental ceased production in 2011 in response to concerns about its use in executions. In 2014, Indiana announced intentions to use sodium methohexital (brand name Brevital) in executions, and Par Pharmaceuticals, the producer of Brevital, released a statement announcing that it would put distribution restrictions in place to block the use of its product in executions. Numerous pharmaceutical companies have announced their opposition to the use of their products in executions, saying it violates their mission to enhance health and save lives.


Rhines files appeals as SD sched­ules his exe­cu­tion for Monday, The Daily Republic, November 1, 2019; Michael Geheren, National leader crit­i­cal of how South Dakota han­dles death penal­ty cas­es, Keloland Media Group, November 2, 2019; Arielle Zionts, Rhines sched­uled to be exe­cut­ed Monday, Rapid City Journal, November 2, 2019; Danielle Ferguson, Charles Rhines exe­cu­tion: Court denies Rhines’ request for stay of exe­cu­tion, Argus Leader, October 31, 2019; Stephen Groves, South Dakota inmate seeks delay to choose own exe­cu­tion drug, Associated Press, October 30, 2019; Michael Geheren, Judge hears argu­ments on South Dakota exe­cu­tion, Keloland Media Group, October 29, 2019; Michael Geheren, State argues Charles Rhines’ exe­cu­tion should move for­ward amid fight over lethal drugs, Keloland Media Group, October 282019

Read Rhines’ Petition for a Writ of Habeas Corpus and Petition for a Writ of Certiorari. For addi­tion­al fil­ings in Rhines’ case, see the U.S. Supreme Court dock­et for In Re Charles Russell Rhines (anti-gay bias case) and Rhines v. Young (men­tal health expert case).