South Carolina Tries to Ramp Up Secrecy in a Frantic Effort to Restart Executions

Posted in: Criminal Procedure

The state of South Carolina really wants to get back in the execution business, and it seems prepared to go to almost any lengths to do so.

Over the course of the last half-century, it has executed 43 people. Today there are 37 people on South Carolina’s death row. In a state with a long history of racial discrimination, it is not surprising that nineteen of them are Black.

From 1996 to 2009, South Carolina averaged about three executions per year, making it one of the most active death penalty states on a per capita basis. But since 2011, when it put Jeffrey Motts to death for a murder committed in the prison where he was serving two life sentences, no one has been executed in the state.

Motts also was the first person executed after the state made pentobarbital a part of its three-drug execution protocol.

Over the last decade and more, South Carolina, which in 1985 became the 25th state to adopt lethal injection, has been hamstrung in its effort to restart executions> It has faced difficulties in securing supplies the three drugs, pentobarbital, pancuronium bromide, and potassium chloride, needed to carry out executions.

Pentobarbital puts the prisoner to sleep. Pancuronium bromide paralyzes them, and potassium chloride stops the heart.

The state’s supply of those drugs expired in 2013. As Bryan Stirling, director of the Department of Corrections, told CNN, “All of those drugs are expired or we’re unable to get them and we’ve returned them to the manufacturer because they have been expired.”

South Carolina’s Governor Henry McMaster, claimed that “The reason we don’t have the drugs, despite intense efforts to get them is because the companies that make them, the distributors who distribute them and the pharmacists that may have to compound them don’t want to be identified.”

Like other death penalty states, South Carolina now wants to shroud its execution process in secrecy.

Last week, a bill was reported out of committee in the South Carolina State Senate that would prohibit disclosure of the identities of drug manufacturers and pharmacies if they sell the state lethal-injection drugs.

But this is not just the latest step in South Carolina’s frantic effort to get back in the execution business.

Before looking more closely at the pending secrecy bill and its impact on transparency and accountability in the death penalty process, let’s look at what else the state has done.

The saga started in 2017 when McMaster and Stirling held a press conference outside the state’s Broad River Capital Punishment Facility. They claimed that the lack of lethal-injection drugs was preventing the state from executing Bobby Wayne Stone, who had been convicted of murdering a county sheriff.

They urged the legislature to adopt a secrecy statute in the hope it would reassure suppliers of lethal injection drugs.

In January 2018, such a statute, as well as a bill to make the electric chair the state’s primary execution method, was introduced in the state legislature. Another secrecy bill was introduced in the 2019-20 legislative session. Neither bill passed.

Another effort to restart executions occurred in the late fall of 2020 when the state hoped to execute Richard Moore for the 1999 murder of a convenience store clerk.

Moore, who did not want to die by lethal injection and refused to elect any other execution method, sought access to the state’s execution protocols. The state Department of Corrections denied his request.

Moore’s lawyers claimed that the denial was unprecedented and illegal. They sought a stay of execution from the South Carolina Supreme Court.

“Never before,” they told the court, “has [the Department of Corrections] denied a condemned inmate and his counsel access to the execution protocols in advance of an imminent execution. Indeed, no other state in the country has executed someone under such an extreme veil of secrecy.”

The South Carolina Supreme Court stayed Moore’s execution.

It said that it had “been advised the South Carolina Department of Corrections does not have, and will not be able to obtain, the drugs required for execution by lethal injection.” It ruled that the stay would remain in effect “until the South Carolina Department of Corrections advises the Court it has the ability to perform the execution as required by the law.”

In May 2021, the state again tried to restart executions. It did so by changing its death penalty law to get around the problems of getting lethal injection drugs.

The change specified that, if the state could not carry out lethal injections, the electric chair would become its default method and would be used unless an inmate elected to die by the firing squad.

It took the state almost a year to make the preparations necessary to carry out executions by the firing squad.

In March 2022 the Department of Corrections announced that “The Capital Punishment Facility at Broad River Correctional Institution has been renovated to include the capacity to perform an execution by firing squad. Protocols have been written, and the department is ready to carry out an order of execution by firing squad if the inmate chooses this method.”

One month later, death row inmates filed suit challenging the constitutionality of the electric chair and the firing squad.

In January 2023, after hearing oral arguments, the state supreme court put the case on hold. It remanded it to the trial court so it could conduct additional discovery into the state’s efforts to obtain drugs for lethal injection.

The decision threw another monkey wrench into South Carolina’s years-long effort to resume executions.

It came one day after Gov. McMaster used his 2023 State of the State address to push for the secrecy law that will soon be taken up by the state Senate. “Ladies and gentlemen,” he said “we cannot keep waiting. We must give these grieving families and loved ones the justice and closure they are owed by law and tell the people of South Carolina that their government believes in the rule of law—just like they do.”

What McMaster didn’t say was that the legislation he supports would, as similar legislation has done elsewhere, impose unprecedented levels of secrecy in the state’s execution process.

It would also throw up a roadblock for death row inmates, at a time when executions are being botched at record rates. Understandably those facing death, want to ensure that lethal injection drugs are safe and that their executions won’t devolve into unconstitutional, gruesome spectacles.

Moreover, the veil of secrecy that South Carolina hopes will allow it to resume executions is incompatible with the public’s legitimate interest in democratic accountability. The citizens of South Carolina, like citizens everywhere, have a right to know about every step that the government takes when it carries out executions on their behalf and in their name.

In the death penalty business, it turns out that secrecy, not patriotism, is the last resort of scoundrels.

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