A little-known S.C. law, on the books for nearly a decade, exempts the state from performing an autopsy on a death-row inmate who has been executed.

That means if a lethal-injection execution doesn’t go according to plan, the state is not required to conduct an autopsy, a procedure that could shed light on what went wrong.

However, the state’s corrections chief says nothing in state law prevents others from pursuing an autopsy. “The body is immediately turned over to the funeral home,” where the family or lawyers of the inmate could decide to have an autopsy done, said Corrections Department director Bryan Stirling.

But the autopsy waiver for executed inmates is troubling to some lawmakers and prisoner advocates as the Legislature debates another controversial proposal aimed at putting parts of the execution process deeper into the shadows.

S.C. lawmakers are debating whether to shield – as a state secret – the identity of companies and pharmacies that sell the state drugs that are used in lethal-injection executions. Without that so-called “shield law,” the lethal-injection drugs will be impossible to buy because suppliers fear the backlash of being identified as the source of the drugs, Stirling says.

And that’s an issue for the state.

Now, the state is out of stock of the three drugs used first to knock unconscious an inmate; then, to cause paralysis and respiratory arrest; and finally, cause cardiac arrest, stopping the heart.

Pressure is mounting for a solution.

Stirling said he has received three execution orders in recent months. But, he added, “When we are calling folks to ask for the drugs, and we inform them of who we are, the conversations stop."

Exemption long on the books

The law to waive the state’s autopsy requirement for an executed inmate has been on the books since the 2009-2010 fiscal year, when all state agencies were reeling from massive Great Recession-era cuts.

Then-S.C. Corrections Director Jon Ozmint, who oversaw 15 executions, said he asked legislators to adopt the waiver for autopsies, adding they were a waste of money.

“I just remember thinking: ‘This is insanity. We had 10 witnesses to the fact that the overwhelming amount of drugs that we pumped into (the inmate’s) veins ... killed him instantly.’ It just seemed to me like taking money out into the yard and burning it.”

Had there been any indication that an execution did not happen as planned — taking too long for the inmate to die, for instance — Ozmint says he would have ordered an autopsy.

Despite the waiver being in place, an autopsy was performed on Jeffrey Motts after his 2011 execution, according to the state Corrections Department. The department could not say Friday why the autopsy was ordered. However, it used a new combination of lethal-injection drugs in Motts’ execution, the last one the state has performed.

Questions about transparency

The autopsy waiver raises concerns for some lawmakers and prisoner advocates.

Already hesitant about making secret the source of lethal-injection drugs, state Sen. Marlon Kimpson, D-Charleston, said the autopsy waiver gives him further pause.

“If we did not have transparency, and there was a problem (with the execution) for whatever reason, we don't even know where to start our investigation because the identities of the material parties to the execution aren't traceable,” Kimpson said of the proposed “shield law.”

“In addition to the shield law, now that we don't have the autopsy, then it makes it more problematic that we would never get to the bottom of what happened during the execution,” he said.

“It just shrouds so much of the execution in secrecy,” said Lindsey Vann with Justice 360, a group that is fighting the shield law. “We won't know where the drugs are coming from or who's testing them. Won't know if they're being effective. ... If something goes wrong, I don't know how we would be able to figure out what happened to prevent it from happening again in the future.”

Stirling said he will conduct autopsies after executions if lawmakers decide to change the law, but he sees no reason to spend the money.

“It doesn't really make much sense to me to have the state pay for an autopsy when you have medical professionals” and other witnesses to the execution, he said.

State House Speaker Pro Tempore Tommy Pope, R-York, said he never would oppose an autopsy being performed if there was some question about whether an execution went according to plan.

However, Pope, a former solicitor who prosecuted Susan Smith in a high-profile death-penalty case, questioned the motivations of critics who call into question the effectiveness of lethal-injection drugs. Their “real push has been to not have the death penalty,” he said.

Still, Kimpson said he would prefer the state perform an autopsy after a lethal-injection execution to ensure the drugs were effective.

“That makes good sense, albeit at some expense to the state,” he said. “The safeguard is the Constitution which is even applicable to prisoners. No person should be subject to cruel and unusual punishment.”