Here’s what SC doesn’t want the public to know about firing squads and executions

For the first time in state history, South Carolina could soon execute people on death row by firing squad. Though the S.C. Department of Corrections has already bought the squad more than $53,000 in equipment, it’s hiding key details.

The state bought rifles, but won’t reveal what type. It purchased bullets, but won’t say how many. It bought a blanket that stops projectiles, but won’t disclose from whom.

The secrecy extends beyond the firing squad. While South Carolina has executed more than 200 people in the electric chair and 35 with lethal injection, and both methods could be used by the state again, Corrections won’t share the rules for how it would kill with those methods, though more than half of the other states that allow the death penalty make their execution processes transparent to the public.

The agency started preparing to hide execution information at least months ago. Shortly before state lawmakers approved the firing squad in May, Corrections created confidentiality agreements that suppress information from execution workers. Since then, the agency has concealed documents and particulars that explain the state’s execution plans, regardless of method, an investigation by The State Media Co. shows. That violates state law, media attorneys agree. It could also be a human rights violation.

In October, the United Nations’ Human Rights Council called upon all states that have not abolished the death penalty to “make available systematically and publicly full, accurate and relevant information” about their execution processes, since doing so allows national and international stakeholders to understand and assess them.

The cloaked facts are urgent not just for the 35 men waiting to die on South Carolina’s death row, but for the state employees who will carry out the executions — and the South Carolinians who will fund the work.

One of those people is Jery Anderson. Corrections ought to share more about executions, the Beaufort resident said as he waited to buy a rifle at a Midlands gun store on Thursday. Three men browsing for bullets in the hunting section earlier agreed. If the state believes what it’s doing is right, it should put the execution information out there, they said.

Corrections officials defend the secrecy.

“The Department recognizes that information regarding execution methods is of public interest but must also balance that interest with the unique and very real security concerns that are associated with that process,” said Chrysti Shain, a spokesperson for the agency. Keeping certain details under wraps is also required by law, said Bryan Stirling, the agency’s director.

Media lawyers disagree the law allows that, and maintain that hiding the truth risks freedoms South Carolinians enjoy.

“Democracy dies in darkness,” said Taylor Smith, an attorney who represents the S.C. Press Association and its member newspapers, including The State. “When the government tells you, ‘You don’t need to know this information,’ bad things are usually hiding behind that curtain.”

While the agency lifted the curtain briefly to show some firing squad receipts earlier this month, it still concealed much of the details.

New firing squad orders show what agency is hiding

South Carolina is the only state in the country whose primary — and only — method of execution is the electric chair, a device that has led to dozens of botched killings nationwide. All other states that once used the chair have switched to offering alternative methods first, like lethal injection, or have banned executions entirely.

S.C. Supreme Court justices decided the situation was unacceptable in June. Until the state could ready the firing squad as an alternative to electrocution, no one could be executed, the court ordered. Since then, the Department of Corrections has been preparing the squad and the rules for how it will function. That work is still ongoing, said an agency spokesperson.

But when a reporter for The State requested in August to see what the agency had bought thus far for the firing squad, and from whom, officials initially declined to share any page of the purchase orders. They were entirely off limits to the public because they were “security plans and devices,” an official said.

Only after the reporter reminded the agency that state law required it to share at least the dollar amount spent did it release that information. Corrections had spent just over $29,500, an official responded in late September. By the end of October, the sum expended on “ensuring the safety of the participants and witnesses, and ensuring the security of the process” had almost doubled to more than $53,000.

What exactly was purchased for the squad with the money was unclear until the newspaper spoke with the agency and published two widely read articles on S.C. executions, one of which mentioned lawyers agreed the agency was violating the law by not giving more information.

Shortly after the articles were published, the agency provided a six-page document that indicated almost $30,000 had been spent on a ballistic blanket, a partition, four locking swivel casters, at least one rifle and bullets. The document and its contents are reported here for the first time.

Missing from the files was the type and quantity of rifle and bullets purchased, the name of the companies that sold the government the items and the products bought with the rest of the more than $20,000. The pages were heavily redacted with thick black bars that concealed a significant amount of information. Without those details, it’s impossible to tell whether the state is doing business with reputable companies, overpaying for supplies or adequately preparing to protect the safety of the government workers tasked with shooting people to death.

After a reporter asked why the information was concealed, an agency spokesperson said the number of rifles purchased had been redacted by mistake — four had actually been bought. Another employee said the state planned to soon provide the purchase orders for the remaining thousands, but at the time of publication, it had not yet done so. Neither representative clarified the rifle type nor the number or type of bullets bought, and “the vendor’s identity is protected by law,” one stated.

Residents of the state deserve to know that, experts said.

“The public has a right to engage in oversight,” said Robert Dunham, the executive director of the Death Penalty Information Center, a nonprofit that collects and provides facts about capital punishment online. “It is not legitimate to conceal from the public the companies with whom the government is doing business.”

As The State requested more information about executions, more of the agency’s pattern of secrecy was unveiled.

Repressive confidentiality contracts signed by execution workers

Employees at large technology companies sign confidentiality agreements all the time. The forms are meant to prevent staff from running with secrets from one business to the next and making competition among companies more difficult.

Corrections has no competition when it comes to executions. But in April, two months before the state’s first two executions in a decade would be scheduled to occur, the agency created a confidentiality agreement for employees involved with capital punishment. That could include workers tasked with escorting the condemned to the death chamber, strapping them to the chair and performing executions.

“They’ve never done that before,” said John Blume, a lawyer who has worked as an advocate for people convicted of crimes in South Carolina for over 30 years and directs the Death Penalty Project at Cornell University.

Without proper authorization, those employees could not disclose policies, procedures or discussions about issues related to executions with anyone outside their group, the agreement specified. If workers did reveal that information, some of their privileges would be terminated immediately and their actions could be reported to management. The existence and use of the confidentiality agreements by Corrections has never before been reported.

While the imposed agreements appear to protect the identity of executioners, which is mandated by law, they also seem to inhibit workers from seeking help and alerting others to improper execution activities.

Former execution workers recently interviewed by The State said they suffered long-term mental harm as a result of their jobs, including post-traumatic stress disorder and depression. One considered committing suicide several times because of his service as an executioner in South Carolina.

Corrections has long offered three, free optional counseling sessions to all its employees. Under Stirling, it started providing an additional, optional peer support program for workers in crisis. Over 50 prison workers are certified to provide crisis assistance to other employees through it. The program could be used by executioners in the future, Stirling told a reporter, and the agency could tap into a counseling service for first responders, too, if they needed it.

But the confidentiality contracts seem to intimidate execution workers from participating in the government programs — and from obtaining support outside the agency — since they hinder discussion about executions.

That could make a tough situation tougher, experts indicated. Even without the existence of confidentiality agreements, those who most need mental health and moral support because of workplace issues are often the least likely to get it from employers, said Dr. Rita Nakashima Brock, a theologian based in Virginia who coordinates peer support programs for veterans through Volunteers for America, a nonprofit.

“People don’t want to seek help because they don’t want to seem like a weak link,” she said. “The harder your work is in terms of being morally challenged, the less likely you’re willing to talk about it.”

When asked for comment, Shain, the agency spokesperson, said the newspaper had misunderstood the form. “The agency has taken steps to ensure that people can get the support they need,” she said.

As the forms prohibited the free speech of rank-and-file execution workers, the agency’s director was also tight-lipped about their existence. In June, when a reporter asked him whether death row employees had signed any confidentiality agreements, Stirling didn’t answer the question.

Weeks later, a Corrections employee did. Yes, death row officers had recently been made to sign the forms, the official told the reporter in an email after she submitted an open records request for the files. But the documents could not be provided to the public since those were, again, “security plans or devices.”

“I don’t think any of that is a security plan or device,” countered Jay Bender, an attorney considered the foremost authority on S.C. laws pertaining to freedom of speech and another lawyer for the S.C. Press Association.

As this article went to press, Corrections still had not provided the signed confidentiality agreements that were initially requested, which media lawyers agree is a violation of the state’s open records law. But the agency emailed the reporter a blank version of the form in October. After reviewing it, Bender indicated the contract appeared to be unjustified, and in some instances, unenforceable.

“I don’t think anything in state law authorizes the department to impose this requirement on employees,” he said, noting that the files cite a law that restricts only the names of executioners from being revealed, not other execution information, as well as an opinion from the S.C. Attorney General’s office that addressed questions about lethal injections that he saw as unrelated. A third policy was referenced, but Shain, the agency’s spokesperson, said it was restricted and did not share it with the newspaper.

And while the department said the confidentiality agreement was developed to comply with S.C. law, Bender indicated it seemed to do the opposite.

Unless there was another legal basis for them, the confidentiality agreements would not be supported by law, he said, since state agencies only have the authority given to them by the legislature. The threat of law enforcement was also unfounded, he believes, since breaking the agreement would not be a criminal offense.

It wouldn’t be the last time the Department of Corrections would try to keep execution information hidden.

Execution rules in SC concealed but shouldn’t be, experts say

In more than half of the 24 states that allow the death penalty, their correction agencies make their execution protocols public. Everything from when executioners are trained to where the bodies are placed after executions can be shared in the execution rule books, which are sometimes available online.

When a reporter from The State asked for the execution protocols from Utah — the state that last shot a man to death in 2010 by firing squad — its Department of Corrections sent the newspaper a 138-page document in a week.

The file included details such as the type of guns the firing squad uses (.30 caliber rifles), how executioners are trained for all the methods of execution the state allows (at least three practice sessions, and medical training for lethal injection), how execution workers are informed of their duties (each worker receives written instructions describing their role) and whether executioners would ever be allowed to kill someone by themselves (no).

Meanwhile, a request for S.C. execution protocols related to the electric chair and lethal injections was denied. Corrections cited at least five reasons.

Firing squad protocols could not be provided, they said, because they were still being drafted. As for the electric chair and lethal injection protocols, they were unavailable because it could be an unreasonable invasion of personal privacy, it could violate the relationship between a client and an attorney and a statute or law allowed them that right, Corrections said. When it gave that exemption, it referenced a November order from Richland County Judge Alison Renee Lee that indicated the protocols didn’t have to be shared outside the agency.

And, they were security plans or devices, the agency repeated.

But serious questions have been raised by former executioners regarding how executions have been carried out before in South Carolina. Without the current protocols, it’s impossible to assess whether the problems they said existed have been addressed.

In 2007, Terry Bracey and Craig Baxley sued then Correction officials, claiming they were never properly trained for their execution jobs nor provided with a written description of any execution policy or order. Neither of the two men who pushed drugs into the veins of the condemned during lethal injections received medical training before they killed people in the death chamber, they said. And Baxley said he performed many executions in the death chamber by himself. The lawsuits and worker’s compensation claims were eventually dismissed.

Withholding the protocols doesn’t only prevent people like Bracey and Baxley from knowing whether conditions have improved since they left the agency. Lawyers indicated the failure to share the protocols also violated the state’s open records law.

State agencies are allowed to remove information in the documents that could endanger its work or employees before providing files to the public. The names of executioners, for example, must be concealed. But after the agencies redact that information from the documents, they then have to share the rest of files with the requester. The law does not allow an agency to hold back an entire record, Bender and Smith emphasized, as the judge and Corrections indicated they believed — just the specific lines of information inside the record that cannot be released.

“It is impossible to believe that every word on every document [in the execution protocols] is exempt from disclosure as the Department of Corrections argues,” said Bender.

After the agency refused to provide the protocols, a reporter sent a list of over 40 questions to the agency regarding how the state was preparing for executions. Most of them went unanswered. A spokesperson said the agency was prohibited by law from providing them.

The refusal to share execution information is an affront to the public and to human rights, legal experts indicated.

“The global community is increasingly considering execution secrecy a human rights violation,” said Dunham.

Since any upcoming executions will be done on behalf of the state’s residents, added Frank Knaack, the executive director of the South Carolina office of the American Civil Liberties Union, “the people have an absolute right to know every detail about what’s happening in their name, so that we can make informed public policy decisions going forward.”

And in his Columbia law office, wearing a suit and bow tie to match, Bender sat at the end of a windowed conference room and offered a final opinion. At the root of the secrecy issue with Corrections is a fundamental misunderstanding about the role of government agencies in South Carolina.

The people are not their enemy, he indicated. Rather, South Carolinians are their boss, and bosses should not be kept in the dark.

Tell us your story

Reporter Chiara Eisner is still reporting about executions. Reach her at 803-814-4464 or ceisner@thestate.com. Send encrypted messages to chiarareports@protonmail.com. Your name will not be published without your consent.