South Carolina Secures Drugs To Reinstate Lethal Injections

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The state of South Carolina has secured the drugs necessary to carry out lethal injections – meaning it can resume the execution of condemned inmates under the one method currently prescribed by law and upheld by courts.

The Palmetto State has not carried out an execution in more than a dozen years due to the unavailability of these drugs– and due to recent changes to its capital punishment laws providing for electrocution or death by firing squad are currently tied up in court challenges.

Governor Henry McMaster and S.C. Department of Corrections (SCDC) director Bryan Stirling informed the state supreme court of this development earlier this week, according to a news release (.pdf) from the agency.

“Justice has been delayed for too long in South Carolina,” McMaster said in a statement accompanying the release. “This filing brings our state one step closer to being able to once again carry out the rule of law and bring grieving families and loved ones the closure they are rightfully owed.”

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McMaster is a former prosecutor. He served as U.S. attorney for the state of South Carolina under former president Ronald Reagan and spent two terms as the state’s attorney general from 2003-2011.

Capital punishment in the Palmetto State has been an on-again, off-again proposition for decades. In 1976, a national moratorium on the death penalty was lifted via the U.S. supreme court’s decision in the case of Gregg v. Georgia. Since that time, South Carolina has put 43 convicted killers to death – including the notorious Donald Henry “Pee Wee” Gaskins. Seven of those sentences (including Gaskins’ sentence) were carried out via electrocution. The other thirty-seven were carried out via lethal injection – including the May 6, 2011 execution of 36-year-old Jeffrey Brian Motts.

South Carolina currently has 34 inmates on its “Death Row,” which is located at the Broad River secure facility just north of the state capital in Columbia, S.C.

State law provides for the death penalty in murder cases provided a “statutory aggravating circumstance is found beyond a reasonable doubt.” These aggravating circumstances are specifically enumerated in the S.C. Code of Laws (§ 16-3-20) – and are determined on a case-by-case basis in proceedings which are held separately from the murder trial once a guilty plea or verdict has been entered into the record.

If a defendant in a capital case pleads guilty before trial, the sentencing decision falls to a circuit court judge. If a defendant is found guilty by a jury of his or her peers during a public trial, the decision is made by the same trial jury which heard the original case. Like the determination of a defendant’s guilt, any aggravating factors must be proven “beyond a reasonable doubt” for the death penalty to be imposed.

What are those factors?

There are twelve aggravating factors listed under the law – although the first factor encapsulates eleven separate crimes which, if committed alongside murder, would elevate the latter charge to a capital case. Those crimes include criminal sexual conduct, kidnapping, human trafficking, burglary, robbery, larceny, drug trafficking, poisoning, torturing, dismemberment and arson.

The other aggravating factors deal specifically with the defendant, his or her victims, the crime itself and the motive for committing it. For example, “receiving money or a thing of monetary value” via the commission of a murder is considered an aggravating circumstance. So is murdering “a witness or potential witness … for the purpose of impeding or deterring prosecution of any crime.”

The death penalty could also apply in the event “two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct.”

Last year, a pair of scheduled executions were halted after death row inmates successfully challenged the new capital punishment law – which permitted executions by electrocution (or firing squad) in the event lethal injection was unavailable. According to S.C. circuit court judge Jocelyn Newman, these two methods “ignored advances in scientific research and evolving standards of humanity and decency.”

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The state appealed Newman's ruling - and oral arguments in those cases were heard in January of this year.

Meanwhile, in May of this year the S.C. General Assembly passed - and McMaster signed - Act 16 of 2023, a shield law which provided for the "nondisclosure of (the) identity of members of an execution team and the acquisition of drugs to administer a death sentence."

"After McMaster signed the shield statute into law on May 12, (SCDC) continued its previous efforts to secure the drugs with the new shield provision," the agency's release noted. "In doing so, SCDC made more than 1,300 contacts in search of lethal injection drugs. Those inquiries included drug manufacturers, suppliers, compounding pharmacies and other potential sources. As a result of those efforts and the Shield Statute, SCDC was eventually able to secure pentobarbital for carrying out an execution by lethal injection under a one-drug protocol."

Lethal injections typically involve a three-drug cocktail: Pentobarbital (which sedates an inmate and acts as a painkiller), pancuronium bromide (which inhibits muscular function) and potassium chloride (which produces cardiac arrest). The companies which manufacture these drugs aren’t selling them due to philosophical objections to the death penalty, however. Also, due to issues with this “cocktail” approach, several states have opted to use high doses of sodium thiopental – a barbiturate – to execute inmates via a one-drug method. Meanwhile, the federal government executed eight people in 2020 using pentobarbital exclusively.

"The department’s lethal injection policy has been revised to provide for the use of a one-drug protocol," SCDC noted. "The new protocol is essentially identical to protocols used by the Federal Bureau of Prisons and at least six other states. Courts have upheld the use of this drug against constitutional challenges."

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The conversation regarding the death penalty reached a fever pitch in the months leading up to the Palmetto State's 'Trial of the Century,' the double homicide trial of convicted killer Alex Murdaugh.

Wilson ultimately decided against seeking the death penalty for Murdaugh - who was found guilty by a Colleton County jury of murdering his wife and youngest son.

Murdaugh is currently seeking a new trial based on allegations of jury tampering. Should he receive a new trial, Wilson's office would have the option of revisiting that decision - however sources familiar with his thinking have indicated he would be unlikely to pursue the death penalty in such a situation.

My news outlet has consistently argued on behalf of capital punishment being "broadly implemented" in response to especially heinous cases – like the brutal kidnapping and murder of 21-year-old University of South Carolina student Samantha Lee Josephson in March of 2019.

"State lawmakers must take decisive action in 2021 – first to ensure SCDC is supplied with the drugs it needs to carry out lethal injections, and then to ensure the availability of other methods of execution in the event circumstances warrant," I wrote in the fall of 2020.

For once, lawmakers listened.

What do you think? Vote in our poll and post your thoughts in our always-engaging comments section below ...

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ABOUT THE AUTHOR ...

Will Folks is the founding editor of the news outlet you are currently reading. Prior to founding FITSNews, he served as press secretary to the governor of South Carolina. He lives in the Midlands region of the state with his wife and seven (soon to be eight) children.

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