Shield laws haven’t stopped problems with executions, but they have kept them hidden
Kathryn Casteel
South Carolina’s attempts to resume executions continue as state legislation to enact a shield law to hide the identities of pharmaceutical companies that provide drugs for lethal injection moves from the state Senate to the House.
During debate on the Senate floor in February, some lawmakers took issue with language in the bill that would make companies and individuals involved with the process so secret that information would not even be available to obtain during discovery or any other legal process.
However, little is known about South Carolina’s execution protocols to begin with.
According to the Death Penalty Information Center, the state is one of the only ones that doesn’t make its protocols publicly available. The only information available about what is said to be the current three-drug cocktail used in lethal injection executions was made publicly accessible through court documents in a federal lawsuit.
Even the highest court in the state is in the dark about SCDC's lethal injection procedures. Earlier this year, the state Supreme Court remanded the case against the state’s alternative execution methods, the firing squad and electric chair, to find out what exactly SCDC is doing to obtain drugs for lethal injection.
Still, state Senator Greg Hembree (R-Horry), who introduced the shield law legislation, was adamant during debate that full confidentiality is needed to move forward with state executions.
“If we adopt this amendment, we need to not adopt the bill,” Hembree said last month about adding in an exemption to obtain the information on legal measures. “Because it will not lead to the availability of the drugs necessary to carry out the executions.”
But examples from other states show that while secrecy laws don’t fix problems with executions, they do make them harder to find.
“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, said in an interview. “Especially when you’ve taken out any means of accountability for that execution.”
Prior botched executions lead to discoveries of protocol problems
Over the past decade, as drugs for lethal injection executions became harder to obtain, several states introduced shield laws.
As domestic pharmaceutical companies began withholding their products for executions, state officials had to get creative by trying new drug cocktails or using compounding pharmacies, or a pharmacy that customizes drugs that are not mass manufactured, to get what they needed.
Although those efforts created new problems for states carrying out the death penalty, shield laws allowed those issues to become easier to withhold from the public, often only bringing them to light when things go disastrously wrong.
According to a report on secrecy laws from DPIC, Oklahoma enacted a law to hide the identity of anyone who participated in the execution process, including those who supplied drugs, medical supplies or equipment, in 2011.
Three years later, the state botched the execution of Clayton Lockett. During Lockett’s execution, the phlebotomist failed to administer an IV line directly into the man’s vein. Though Lockett was declared unconscious within 10 minutes after the first drug was used, he was observed writhing and clenching his teeth moments later. Lockett eventually died of a heart attack after 43 minutes in the death chamber.
More:South Carolina revisits shield law as Supreme Court debates firing squad, electrocution
The next year, the state faced multiple blunders while carrying out executions. In the case of Charles Warner, a man executed in January 2015, the Oklahoma Department of Corrections used the wrong drug during his execution. The drug misuse was only discovered after his autopsy became public nine months later in October.
Corrections employees used potassium acetate instead of potassium chloride, the final authorized drug in its three-drug cocktail, to stop Warner’s heart. When the discovery was made, the state halted all executions, despite plans to move forward with executing another man, Richard Glossip. Glossip’s execution was stayed only minutes before it was scheduled in September 2015 when officials noticed the pharmacist ordered the wrong drugs again.
In South Carolina, what’s currently known about the drugs used in lethal injection executions was only made available in a letter written in 2020 to attorneys representing death row inmates.
According to a letter sent from an SCDC attorney, the protocol was described as “a three-drug protocol, which begins with an injection of pentobarbital, followed at an appropriate time internal by Pavulon (Pancuronium Bromide) and then followed at an appropriate time internal by potassium chloride.”
But the letter continued to state the department could change drugs if needed.
“SCDC reserves the right to amend its lethal injection protocol and if it is unable to secure sufficient quantities of each of the three drugs listed above, it is prepared to enact a one-drug protocol which would consist of Pentobarbital Sodium,” it said.
More:Group of GOP lawmakers, religious leaders say poll shows Oklahomans support pause in executions
In Oklahoma, officials called for a grand jury investigation into the state’s lethal injection process following the state’s three botched incidents. The report, released in May 2016, concluded the department was “negligent” in its errors.
"It is unacceptable for the Governor's General Counsel to so flippantly and recklessly disregard the written Protocol and the rights of Richard Glossip," the grand jury report said, further noting that given national scrutiny following Lockett’s botched execution, officials “should have been unwilling to take such chances.”
The grand jury outlined several ways officials failed to perform their duties to the level death penalty cases demanded including findings that the corrections director “orally modified the execution protocol without authority,” and that multiple employees failed to notify anyone the wrong drugs were received.
“This investigation revealed that the paranoia of identifying participants clouded the Department’s judgment and caused administrators to blatantly violate their own policies,” the report continued.
Execution mistakes in Tennessee show more recent veiled protocol violations
More recently in Tennessee, an investigation by The Tennessean in May 2022 found that the state’s corrections department violated its own lethal injection policies twice during executions back in 2018.
Tennessee’s execution procedures are also shielded by state law.
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.
The court documents included testimony from people only identified by role such as “drug procurer,” “pharmacist” and “executioner.”
In one example, testimony from the “executioner” determined to be a corrections officer, found the employee had limited understanding of the department's protocols and how to handle the drugs, though he was tasked with preparing them.
The investigation came after Tennessee Governor 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.
But court documents reviewed by reporters show, again, the fluke was not an isolated incident.
The records show other occasions the department didn’t store or test drugs properly, keep accurate records or dispose of expired drugs, all violating the state’s protocols.
According to the report, Tennessee utilized a compounding pharmacy in Texas, SureCare Specialty Pharmacy, to purchase and obtain at least some of the drugs it needed for lethal injection.
Compounding pharmacies typically serve patients who need drugs that cannot be mass-manufactured. These pharmacies have been discussed as an option to remedy South Carolina’s problems obtaining lethal injection drugs.
Currently, the state’s proposed shield law legislation allows regulation and licensing exemptions for out of state drug manufacturers. Some lawmakers proposed amendments to make sure drugs purchased are approved by the Food and Drug Administration. However, compounded drugs are not FDA-approved.
In Tennessee, court documents showed the compounding pharmacy used to purchase some lethal injection drugs was previously fined $1,000 by the Texas State Board of Pharmacy “for failing to disclose a misdemeanor by one of its owners.” The pharmacy also recalled one lot of compounded drugs because they were mislabeled, according to testimony.
In 2018, Billy Ray Irick, a man condemned by Tennessee, 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.
Records showed protocol was ignored as a second dose of the drug was not prepared during Irick’s execution.
“Failure to follow the procedures in the manual indicates that the protocol is meaningless for purposes of Defendants’ carrying out an execution and therefore creates a substantial risk of severe pain and suffering for Plaintiffs," court records said.
In December 2022, months after the investigation by The Tennessean, the state’s own independent review led by a former U.S. Attorney found similar violations of execution protocol. Executions in the state remain suspended.
In South Carolina, the potential for botched executions was brought up multiple times by legislators concerned about the state’s move toward more secrecy during Senate debate in February.
“There’s nothing in this bill that would absolve the Department of Corrections from responsibility,” Hembree said. “From a legal standpoint, they have the ultimate responsibility for the execution.”
In an interview, Rev. Taylor brought up a recent report from a University of South Carolina School of Law professor detailing hundreds of deaths that occurred in SCDC facilities from 2015 to 2021, as well as the prison riot at Lee Correctional Institution in 2018 and other problems that have happened behind prison walls.
“They don’t have a good track record of being trustworthy,” she said.
Kathryn Casteel is an investigative reporter with The Greenville News and can be reached at KCasteel@gannett.com or on Twitter @kathryncasteel.