South Carolina Seeks Drug-Secrecy Law to Carry Out Execution that was Never Going to Happen

Claiming that a lack of lethal-injec­tion drugs was pre­vent­ing the state from exe­cut­ing Bobby Wayne Stone (pic­tured, right) on December 1, South Carolina Governor Henry McMaster (pic­tured, left) urged state leg­is­la­tors to act quick­ly to enact an exe­cu­tion-drug secre­cy law. But as McMaster and Department of Corrections Director Bryan Stirling held a press con­fer­ence out­side barbed-wire fences at the Broad River Capital Punishment Facility in Columbia, South Carolina on November 20, they knew, crit­ics say, that there was no lethal-drug emer­gency and that the death war­rant against Stone was nev­er going to be carried out. 

Since his con­vic­tion and death sen­tence in 1997, Stone has been active­ly pur­su­ing the court review of his case to which he is enti­tled as a mat­ter of state and fed­er­al law. The South Carolina Supreme Court over­turned Stone’s death sen­tence in 2002, but he was resen­tenced to death in 2006. In February 2017, after com­plet­ing the state direct appeal and post-con­vic­tion appeal process­es, the South Carolina Supreme Court affirmed Stone’s death sen­tence. In April, he asked the fed­er­al court to appoint coun­sel to rep­re­sent him in fed­er­al habeas cor­pus pro­ceed­ings chal­leng­ing his con­vic­tion and death sentence. 

At a tele­phone con­fer­ence with a fed­er­al dis­trict court judge one week pri­or to the press con­fer­ence, lawyers for Stone and the state attor­ney gen­er­al’s office agreed to a pro­ce­dure by which the court would stay Stone’s exe­cu­tion to per­mit his lawyers to file his habeas peti­tion. The par­ties agreed to a November 21 dead­line for Stone to file his stay motion, and he filed the motion on November 20. The state attor­ney gen­er­al’s reponse, also filed November 20, ​“agree[d] that the issuance of a stay of exe­cu­tion [was] war­rant­ed.” The fed­er­al court grant­ed the stay of exe­cu­tion on November 21. 

Justice 360, a non-prof­it legal ser­vices orga­ni­za­tion that tracks death-penal­ty issues in South Carolina, crit­i­cized the press con­fer­ence at the prison as a pub­lic rela­tions ploy. In a news release, its exec­u­tive direc­tor, Lindsey Vann said: ​“The Director of the South Carolina Department of Corrections … knew a stay would be issued by the court. He 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.” 

In its dai­ly newslet­ter, the ​“Opening Statement,” The Marshall Project sum­ma­rized the issue, ​“Officials in South Carolina ginned up a death penal­ty dead­line — a death war­rant that a judge prompt­ly declared pre­ma­ture — to press state law­mak­ers for new injec­tion secrecy rules.” 

Governor McMaster said at the press con­fer­ence that exe­cu­tions in South Carolina were ​“at a dead stop” because the state lacked exe­cu­tion drugs. He said “[t]he rea­son we don’t have the drugs despite intense efforts to get them is because the com­pa­nies that make them, the dis­trib­u­tors who dis­trib­ute them and the phar­ma­cies who may have to com­pound them don’t want to be identified.” 

All of the FDA-reg­u­lat­ed phar­ma­ceu­ti­cal man­u­fac­tur­ers in the U.S. that pro­duce drugs used in exe­cu­tions oppose the use of their prod­ucts for cap­i­tal pun­ish­ment and have dis­tri­b­u­tion agree­ments with drug sup­pli­ers that pro­hib­it the sale of their med­i­cines to states for use in exe­cu­tions. Governor McMaster said a secre­cy law was nec­es­sary because poten­tial sup­pli­ers are ​“afraid that their names will be made known and they don’t want to have any­thing to do with it for fear of ret­ri­bu­tion or exposure.” 

The South Carolina leg­is­la­ture has twice in the past reject­ed exe­cu­tion secre­cy bills. Vann said Justice 360 was ​“dis­ap­point­ed” that the Department of Corrections was ​“attempt­ing to mis­lead the press and the pub­lic, espe­cial­ly if [Stirling] led the victim’s fam­i­ly to believe that an exe­cu­tion was imminent.”