By Skylar Laird
SCDailtGazette.com
COLUMBIA — The state’s law keeping information about lethal injection drugs secret violates constitutional rights to free speech, a civil rights group claimed in a lawsuit filed Wednesday, Jan. 29.
The challenge in federal court comes a day after a federal judge decided the law does not give a death row inmate the right to know more about the drugs set to execute him. The state American Civil Liberties Union asked a judge to stop the state attorney general from enforcing the law while the court hears out the case.
The ACLU claims it has “identifying information” despite the secrecy law but can’t give any details on what that is because it’s illegal to distribute.
State Attorney General Alan Wilson and Department of Corrections Director Bryan Stirling, who are named in the lawsuit, have not yet filed a response.
The 2023 law, which expanded an existing rule to make secret nearly everything about the drugs used in executions, keeps the public from learning important information that should be public knowledge, the ACLU argued in its complaint filed in Columbia.
Legislators passed the law to encourage pharmaceutical companies afraid of pushback to sell their drugs to the state for executions. The law worked as intended, and state corrections officials restocked their supply soon after it went into effect.
Executions resumed in September, following a state Supreme Court ruling that found electrocution and firing squad constitutional methods of death.
Not knowing where the drugs come from makes it possible for the state corrections department to buy drugs that are not safe or effective, with no public oversight to determine otherwise, the ACLU argues.
“In the lethal injection era, advocacy organizations, journalists, scientists, attorneys, activists, and other citizens have relied on this information to scrutinize the safety, quality, efficacy, legality, and morality of lethal injection drugs and protocols,” the lawsuit reads.
As far back as the late 1800s, when counties conducted executions by hanging, the details were “widely available,” such as where the supplies to construct the gallows came from, the lawsuit claims.
When the state began carrying out executions using the electric chair in 1912, the public was told how the chair was constructed and the wattage used to execute condemned inmates. And ahead of the state’s first execution by lethal injection in 1995, the state released information on the drugs used and the qualifications of the executioners, according to the lawsuit.
“This ban not only departs from the state’s history of making execution-related information publicly available but criminalizes the disclosure of this information by anyone for any reason,” the lawsuit reads.
Death row inmates facing execution have asked for more information about the drugs used to kill them, arguing that even under the secrecy law, corrections officials can disclose how and where the drugs are tested, the results of the tests and how the drugs are stored. A federal judge has twice turned down those requests.
South Carolina is one of about a dozen states that protects information about drug manufacturers, according to the Death Penalty Information Center. The ACLU contends that the Palmetto State’s law is among the most wide-reaching and harsh on offenders, who can face up to three years in prison for violating it.
Lawsuits in other states have challenged those laws, “with mixed success,” said ACLU attorney Meredith McPhail.
The ACLU is taking a different approach from many of those lawsuits, which often point to alleged violations of state freedom of information laws, by arguing that the law instead violates the First Amendment, McPhail said.
“Our lawsuit is unique in part because the scope and severity of South Carolina’s secrecy statute make it uniquely problematic and because we’re taking a novel approach,” McPhail said in a statement to the Daily Gazette.
Skylar Laird covers the South Carolina Legislature and criminal justice issues. Originally from Missouri, she previously worked for The Post and Courier’s Columbia bureau. S.C. Daily Gazette is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
