Making Executioners Out of Pharmacists: Why South Carolina Should Not Adopt a Lethal Injection Secrecy Statute

South Carolina legislators are considering implementing a secrecy statute because they believe legitimate pharmaceutical companies will supply drugs for lethal injections if shielded from public scrutiny. This belief is inaccurate. Secrecy statutes produce harmful effects, which include deceiving unwilling pharmaceutical companies into supplying drugs, withholding drugs that could be used by hospitals for legitimate medical purposes, and receiving poorly prepared drugs from compounding pharmacies. If the legislature does not adopt a secrecy statute, South Carolina will likely turn to other methods of execution, such as electrocution, firing squad, or nitrogen hypoxia, ultimately leaving South Carolina with two options: (1) using a method less humane than lethal injection to continue carrying out executions or (2) completely abolishing the death penalty. Because lethal injections and alternative execution methods are inhumane, South Carolina should abolish the death penalty.

Part II of this Note discusses pharmaceutical companies’ desires not to supply lethal injection drugs; the Food and Drug Administration’s (FDA) regulation of sodium thiopental, the anesthetic traditionally used in lethal injections; states’ search for new drugs upon sodium thiopental’s unavailability; and states’ implementation of secrecy statutes. Part III considers South Carolina’s use of lethal injection as the default execution method and further evaluates legislative proposals for the state to either adopt a secrecy statute or implement electrocution as its default execution method. By asserting that lethal injection mixtures containing drugs from illegitimate sources are inhumane, Part IV argues that South Carolina should not adopt a secrecy statute and should instead abolish the death penalty. Part V concludes by reiterating the major problems surrounding secrecy statutes and the reasons why South Carolina should not implement one.