South Carolina passes shield law in effort to resume executions. Here’s what to know.

The South Carolina Senate passed legislation to hide identities of pharmaceutical companies and drug manufacturers involved with lethal injection executions Thursday in an effort to resume the state’s death penalty.

Senators concurred with amendments made by the House lawmakers and passed the legislation 32-6. The bill now will now make its way to Gov. Henry McMaster's desk.

The legislation states that any identifying information about a person or entity that participates in the planning or administration of an execution will be confidential, even through legal discovery. The law also makes disclosure of such information about a former or current member of an execution team or their immediate family subject to imprisonment for up to three years.

Proponents against the bill say the shield law blurs accountability for the state’s most critical process.

“If you don’t trust the government to deliver basic necessities and services, you shouldn’t trust the government to execute somebody,” Rev. Hillary Taylor, executive director of South Carolinians for Alternatives to the Death Penalty, told The Greenville News in March. “Especially when you’ve taken out any means of accountability for that execution.”

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South Carolina has struggled to obtain drugs for lethal injection for over a decade as pharmaceutical companies stopped selling their products for use in executions. The last execution carried out in the state was in 2011.

The passage of the legislation also comes as the state courts continue to debate SC’s other methods of execution ― the firing squad and the electric chair.

Last September, Judge Jocelyn Newman found the two methods unconstitutional, but the decision was appealed to the state Supreme Court. The high court tossed back the case to the circuit court in January to allow attorneys representing four men on death row to further inquire about what exactly the Department of Corrections is doing to obtain drugs for lethal injection.

The case was stayed until the end of the legislative session.

Death penalty cases in court for years: More than half in SC end up reversed.

The SC shield law legislation doesn’t allow for disclosure through legal measures  

South Carolina’s death penalty procedures are already effectively secret. However, the new legislation would bar disclosure of any information about manufacturers, pharmacists or compounding pharmacies that may provide lethal injection drugs to the state, even through legal discovery or under seal in litigation.

Alexandra Klein, a professor at St. Mary’s School of Law in Texas who researches capital punishment, said shield laws have created a “black hole” of information around execution protocols.

“It’s startling the lengths to which states will go to get drugs for lethal injection and escape any kind of oversight,” Klein said. “This is one of the most intense things the government can do, and they do it without such little transparency. It’s very troubling.”

The law raises concerns about accountability in the execution process. Other states with shield laws present examples where problems with execution protocols only emerged when things went wrong.

An investigation by The Tennessean in May 2022 found that the state’s corrections department violated its own lethal injection policies twice during executions in 2018.

Reporters reviewed thousands of pages of court documents filed on behalf of a death row inmate that found officials and contractors that participated in the executions “regularly deviated” the state’s lethal injection protocol which likely resulted in expired, compromised or untested drugs used.

One of the men executed in 2018, Billy Ray Irick, was observed choking, coughing and gasping for air during his execution. Lawsuits were later filed on Irick’s behalf, saying the man felt torturous pain because the drug used to sedate him, midazolam, did not work.

The investigation came after Tennessee Gov. Bill Lee ordered an independent investigation into the state’s execution protocols following a “technical oversight” that came to light in the 11th hour before the scheduled execution of Oscar Franklin Smith last April.

Shortly before Smith’s execution, it was revealed the state failed to confirm lethal injection drugs were properly tested for endotoxins, a sign of bacteria in the compound, as required. The discovery was only made after a local attorney requested the test results.

Executions in Tennessee remain stalled.

Dig deeper: SC once obtained execution drugs overseas. How would shield law impact accountability?

The legislation says SCDC must follow federal law, relaxes state regulations

Initial versions of the legislation said that drugs obtained for lethal injection executions must be approved by the Food and Drug Administration. However, the language was amended to simply say DOC “shall comply with federal regulations.”

“SCDC will be obtaining drugs from a legitimate source and will follow federal regulations and laws for controlled substances,” said the department spokesperson, Chrysti Shain, in an email.

In 2019, the U.S. Department of Justice issued an opinion stating that the FDA is not subject to regulate “drugs” or “devices” intended for use for capital punishment under the Federal Food, Drug, and Cosmetic Act.

“Congress has repeatedly authorized the death penalty on the assumption that there are lawful means to carry it out, but the regulation of such articles under the FDCA would effectively require their prohibition because they could hardly be found “safe and effective” for such an intended use,” the opinion said.

South Carolina officials also have proposed the use of compounding pharmacies, or a pharmacy that customizes drugs that are not mass manufactured. However, these pharmacies are also not FDA approved. In some cases, the use of compounding pharmacies has already created concerns around expired products.

While the legislation calls for federal regulation, it removes essentially any state regulations for a pharmacy or pharmacist involved with supplying or manufacturing any drug used in executions. This includes “all licensing, dispensing and possession laws, processes, regulations, and requirements of or administered by the Department of Labor, Licensing and Regulation, the Board of Pharmacy, or any other state agency or entity, found anywhere in the South Carolina Code of Laws or South Carolina Code of Regulation."

This exemption is does not apply for “any other legend drug or pharmaceutical device,” however there are not specific drugs listed that would fall under the exemption.

State Comptroller, Treasurer to hide identifying information from financial records

The legislation also creates secrecy surrounding financial records for the purchase of drugs and medical supplies used in executions.

The bill states that the Office of the Comptroller General and the Office of the State Treasurer will work with DOC to ensure the “State’s accounting and financial records related to any transaction for the purchase, delivery, invoice, etc. of or for supplies, compounds, drugs medical supplies or medical equipment” used in an execution are kept in a “deidentified condition.”

When asked if the legislation would allow the public to have any way to know what the department spends on lethal injection executions, Shain clarified to The Greenville News that all information regarding the purchase would be confidential.

A report from The Guardian in 2021 found death penalty states have spent a significant amount of taxpayer money to obtain drugs for lethal injection. According to the report, in 2020, Arizona Department of Corrections spent $1.5 million on 1,000 vials of pentobarbital sodium salt, a sedative often used in executions. Arizona has executed just 3 people since 2014.

Other documents retained for the report showed Tennessee spent $190,000 between 2017 and 2020 on execution drugs, while Missouri spent $160,000 between 2015 and 2020.

South Carolina spent around $56,000 in renovations to establish the firing squad last year, according to the Department of Corrections.

Kathryn Casteel is an investigative reporter with The Greenville News and can be reached at KCasteel@gannett.com or on Twitter @kathryncasteel

This article originally appeared on Greenville News: SC passes shield law in effort to resume executions. What to know.