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Death penalty process will become secret if South Carolina’s governor gets his way

If South Carolina doesn’t pass a law to keep the drugs it uses for lethal injections a secret, the state won’t be able to carry out its first execution in six years on Dec. 1, according to Gov. Henry McMaster.

by Taylor Dolven
Nov 24 2017, 9:50am

If South Carolina doesn’t pass a law to keep the drugs it uses for lethal injections a secret, the state won’t be able to carry out its first execution in six years on Dec. 1. Or at least that’s what South Carolina Gov. Henry McMaster spent the week telling state lawmakers.

“Here we are at a dead stop and we can’t do anything about it unless and until our legislature enacts the shield law,” McMaster said at an emergency press conference with Department of Corrections Director Bryan Stirling on Monday.

There’s just one problem: The scheduled execution of Bobby Stone, 52, on Dec. 1 was never going to happen because a federal court hasn’t reviewed his case yet. McMaster and Sterling created a false sense of urgency to publicly call for a law that would make much of the death penalty procedure in South Carolina a secret. Stone’s execution was stayed — as expected — on Tuesday.

“From where I sit, this looks like political opportunism and an attempt to take advantage of the public’s lack of knowledge about how this works,” said Kier Weyble, Cornell Law School’s director of death penalty litigation, who represents several South Carolina death row inmates. “If the legislature had acted today and passed a secrecy bill and the governor picked up the phone to his favorite compounding pharmacy, Stone’s execution was still not going to happen. There was always going to be a stay entered because of where he is in the road of state and federal review.”

READ: Some of the most important details of Arkansas’ execution spree will remain unknown

Bobby Stone was convicted of killing a police officer in 1997. He has exhausted his state court appeals, so the state set his Dec. 1 execution date last week. But he’s still entitled to the federal review process, so a federal judge stayed his case on Nov. 21, as everyone involved, including the state, expected.

“Bryan Stirling knew a stay would be issued by the court,” Lindsey Vann, executive director of Justice 360, a nonprofit law firm representing Stone, said in a statement. “[Stirling] nevertheless chose to make public statements implying otherwise in an attempt to force the General Assembly to pass a ‘secrecy’ bill that would allow the state to purchase unsafe drugs for execution and shield their source from the public.”

Robert Kittle, a spokesman for the state attorney general’s office, confirmed to VICE News that the stay was “expected.”

South Carolina — along with many other states that still enforce the death penalty — hasn’t been able to secure the lethal injection drugs necessary to carry out executions, largely because of the stigma surrounding how they’re used. In an attempt to free up pharmacists and drug manufacturers to sell drugs to the state without fear of retribution, fifteen states have passed shield laws similar to the one that McMaster and Stirling are pushing for to keep the names of people involved in the process a secret. Secrecy laws also make information like the execution team’s training, the origin of the drugs being used, and the lethal injection procedure private.

South Carolina lawmakers did not pass two proposed death penalty secrecy bills in 2015 and 2016.

READ: The first execution under Virginia’s new drug secrecy laws didn’t go as planned

At the press conference on Monday, McMaster and Stirling said that without the shield law, they would not be able to follow through with Stone’s execution.

“The execution date has now been set by the courts for Dec. 1, but we’re unable to do it because we don’t have the drugs that are called for in the law to do a lethal injection,” McMaster said.

“We’ve got a week and a half to come up with the drugs, and right now, we do not have the drugs,” Stirling said. “We’re unable to get the drugs, and we’re in an interesting place right now. If the general assembly will pass the law we believe strongly like other states, Texas, Oklahoma, Arkansas …. We will be able to carry out this execution, but right now we are unable to.”

By concealing details about the execution process, secrecy laws also make it more difficult for death row inmates to challenge their sentences in court. Weyble, the Cornell professor, called the process an “unfair fight.”

“It’s more difficult to mount a challenge to the method of execution when you can’t find out exactly what kind of method is being used,” he said. “They have to go to the underworld for the tools of their trade because legitimate providers aren’t willing to do business with them. That should bother a person of conscience.”

Gov. McMaster and Stirling did not respond to requests for comment.

Cover image: South Carolina Corrections Director Bryan Stirling and Gov. Henry McMaster standing outside the state’s death row at Broad River Correctional Institution in Columbia. (AP/Meg Kinnard)