South Carolina legislature passes ‘barbaric’ law shielding identity of lethal injection drugmakers

South Carolina lawmakers have passed a set of bills that would hide the identities of lethal injection drug suppliers and execution team members.

State officials say such “shield” legislation is the only way the state can replenish its supply of execution drugs, which expired in 2013, while critics argue that the bills will further limit transparency in the lethal injection process, in which numerous states have made lethal errors sourcing and administering the chemicals.

Republicans in the South Carolina House passed a version of the “shield law” on 19 April, while a Senate version was approved on similar party lines in February. The bills will head to reconciliation before they’re sent to the governor.

“This isn’t even about the death penalty. This is about government transparency,” Joshua Malkin of the ACLU of Southern Carolina told the Associated Press when the senate version passed. “Even folks that the state has determined are condemned to die deserve some standard of decency.”

Religious groups have also stated their opposition.

“Even the worst of the criminals, no matter what they did, we believe that there’s more for them out there,” South Carolina Catholic Conference director Michael Acquilano told WCSC when the House version was approved. “This is a form of barbarism. I’m going to hurt you because you hurt me or hurt someone else.”

Backers of the bill say it’s needed to allow the state to source execution drugs and give victims of crime relief.

“Let’s be clear when we talk about transparency and what this does,” House Judiciary Chairman Weston Newton told the Post and Courier this month. “What we know is that the Department of Corrections has been unable to carry out lawfully imposed sentences. The families of the victims cannot get closure.”

The fate of the bills will impact the larger ways capital punishment is administered in South Carolina.

In 2021, facing a shortage of execution drugs, as most mainstream pharmaceutical companies have objected to their medicines being used for capital punishment, the state approved firing squads and the electric chair as backup methods if lethal injection poisons weren’t available.

In January, the state supreme court paused litigation from death row inmates challenging the new execution methods, asking a lower court to review whether South Carolina had done enough to source the execution chemicals.

In March, that review was halted pending the outcome of the shield legislation.

State corrections officials have been “consistently and diligently searching for lethal injection drugs for the past decade, including from other states, manufacturers, and compounding pharmacies. Until the last month or so, most of these efforts never proceeded beyond an initial conversation and rejection, and the few efforts that did quickly fizzled,” state officials wrote in court documents.

Lethal injection drugs have been a consistent source of problems in capital punishment across the country. The shortages send states into the grey market to source medicines that are administered by state employees under a cloud of secrecy and sometimes with little training.

The DoJ said in 2019 it the FDA has no obligation to regulate execution chemicals, arguing that the normal criteria for evaluating medicines – whether they are safe and effective — don’t apply to chemicals being used to kill someone.

At one point, South Carolina was sourcing its drugs from an unregulated overseas pharmacy run out of a driving school in London.

In Oklahoma, state executioners carried out multiple killings with the wrong lethal injection drugs, treatment inmates bringing a lawsuit said made them fear they would be subject to “torture” in the state execution chamber.

The errors caused the state to put executions on hold for years. In the first execution after the pause, in 2021, witnesses said John Grant, who was supposed to be sedated during his execution, yelled, vomited, and convulsed repeatedly.

Two Tennessee corrections officials were fired in January following a report that found “shocking” issues with the state’s death penalty protocols.

Earlier that month, a scathing report produced by former US Attorney Edward Stanson and the law firm Butler Snow found that state’s execution process suffered from “a tunnel-vision, result-oriented lens” without “any checks and balances whatsoever.”

The probe, ordered last year by Republican Governor Bill Lee, found that the state failed to tell the pharmacy where its lethal injection drugs are manufactured to test for contaminants and didn’t give the pharmacy a copy of its execution protocols.

The shield bill also conceals the identity of the execution teams themselves, raising other privacy concerns over whether state officials will be held accountable for errors.

In Alabama, prisoner authorities called off an execution at the last minute in November, after prison staff failed for hours to find a vein to administer the lethal injection drugs to Kenneth Eugene Smith.

Smith, who is now in litigation with the state of the Alabama because of the botched execution, told The Atlantic the experience was “like a knife,” and that he told prison officials over and over again he was feeling pain, even though he was supposed to have been fully anesthetised.

The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to their Business Leaders Declaration Against the Death Penalty - with The Independent as the latest on the list. We join high-profile executives like Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.