South Carolina, known as a tough-on-crime state, cannot put a condemned inmate to death nowadays – unless that inmate agrees to be executed using the electric chair.
And the chances are slim to none that a death row inmate will chose the electric chair.
After all, since 1996, only three of 38 S.C. death row inmates who were executed have chosen the electric chair. Under state law, an inmate must be put to death by lethal injection unless he chooses the electric chair, according to the S.C. Department of Corrections.
And for now, lethal injections aren’t possible.
That’s because under state law, the DOC must use fresh drugs when executing killers. But all the expiration dates have passed on the toxic drugs the department uses to execute the condemned. And there’s no easy way of getting new drugs. Drug companies are refusing to sell the state those chemicals.
A bill proposed in the General Assembly could help get executions back on track, advocates say. But like the death penalty itself, it is not without controversy.
The situation is well known to DOC director Bryan Stirling, who has been trying to buy the lethal drugs so the department can carry out an execution if ordered to by the S.C. Supreme Court.
“When I took over the Department of Corrections in October 2013, I was briefed on many things I’d be doing, and one of those was executions,” Stirling said in an interview. “I was told our drugs had expired, and we were going to have a hard time obtaining the drug.”
Since then, Stirling’s department has been trying to – even by going through compounding pharmacies.
“Once we state what we want the drugs for, that we are the Department of Corrections, the conversation quickly ends,” Stirling said.
“We even considered becoming a compounding pharmacy ourselves, but it just didn’t make a lot of sense to use tax dollars to buy something we could get for a lot less on the open market,” Stirling said.
Legal challenges, protests and fear of bad publicity are the reason that pharmaceutical companies won’t sell the drugs, Stirling said.
“Death penalty activists have been very good at stopping departments of corrections in states that have the death penalty from obtaining these drugs,” Stirling said.
Since last year, Stirling has been working to get the chemicals. In 2015, he:
▪ Asked for and got an opinion from Attorney General Alan Wilson that said current state law already prohibits revealing the identity of an individual or company that provides the DOC with drugs. Still, Stirling said, no company will sell drugs to the DOC.
▪ Appeared before committees in the S.C. House and state Senate to inform them that the Department of Corrections is unable to carry out executions.
▪ Supported the introduction of bills introduced in the House and Senate that would shield the identities of companies that sell drugs to the DOC. If the bills were to become law, that extra layer of privacy assurance might help convince companies to sell lethal drugs to DOC, Stirling said.
Georgia, Oklahoma and some other states have strong shield laws, and those states are carrying out lethal injection executions, Stirling said.
Stirling calls the proposed law now in the Senate that would keep secret the identity of a company that sells lethal injection drugs to South Carolina a “shield” law. Death penalty foes calls it a “secrecy” law and say it goes against American traditions of open government.
Currently, the bill – along with an amendment that would allow the state to use some kind of poisonous gas to put an inmate to death – is on the Senate floor.
“We oppose this bill because if the State is going to carry out the ultimate punishment and take the life of one of its citizens, it should do so with transparency and accountability,” said Lindsey Vann, staff attorney with Justice 360, a Columbia-based non-profit that tracks and defends S.C. death penalty cases.
Vann described the bill as “special-interest legislation designed to shield private sector drug companies from lawful criticism and to stifle public debate.”
Such a law would also mean that any botched drug execution would effectively be a state secret, she said, because neither Gov. Haley nor the Legislature – not to mention the press and public – could investigate what happened in a botched drug execution.
“The public could not even learn the cost of the drugs under this bill,” Vann said.
Highly publicized botched executions in some other states are but one factor that have put America’s death penalty under increasing scrutiny. Meanwhile, according to polls, public support of the death penalty – especially when life in prison without parole is an alternative – has dropped.
Nationwide, in 2015, there were only 29 executions – the lowest number since 1991, according to the national Death Penalty Information Center. In South Carolina, courts have only imposed the death penalty twice in the last five years, according to Justice 360.
Since Stirling took office three years ago, his department has received no orders to execute an inmate.
Currently, there are 42 inmates on South Carolina’s death row, all of whose cases are in various stages of appeal.
Death penalty appeals are complex and time-consuming. An inmate’s appeals can last years and even decades. Four inmates have been on S.C.’s death row since the 1980s.
According to the S.C. Attorney General’s office, which handles death penalty appeals, a number of the state’s 42 death row inmates have appeals that are well along. The earliest an execution could take place – if everything fell into place – would be this summer, spokesman J. Mark Powell said.
However, it is common for judicial orders to derail upcoming executions, even in the final weeks or months of an inmate’s appeal.
Justice 360 estimates it might be five years before South Carolina is able to execute a death row inmate.
“The Attorney General’s office doesn’t set the timetable in these cases. We are moving as swiftly as the legal process allows,” Powell said.
Once an inmate’s appeals are exhausted, the Attorney General’s office notifies the clerk of the state Supreme Court. That court then notifies DOC, which serves the inmate with the execution notice. Under state law, the inmate is put to death on the fourth Friday after being served.
Stirling said, “It’s not my job to be either for or against the death penalty. I am simply the conduit to carry out the court’s order.”