Could South Carolina’s corrections director revise the drugs used in a lethal injection protocol?

Plain-English summary

In 2011, the South Carolina Attorney General concluded that the Director of the Department of Corrections had authority to establish reasonable rules for lethal injection and revise the drugs or amounts used in the execution protocol. The legislature had authorized lethal injection under the director's direction without prescribing a particular drug formula.

The AG said the then-applicable statutory notice to an inmate did not require disclosure of particular execution procedures or drug changes. It nevertheless called notice of a revised drug protocol to the inmate or counsel prudent. The opinion treated the selection of a specific protocol as a policy decision for the director and mentioned consultation with experts or other corrections officials as possible inputs.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Could the director change the lethal-injection drug protocol? A: The AG said yes, within the director's authority to make reasonable rules for managing executions.

Did the statute specify a fixed lethal-injection drug formula? A: The opinion said the legislature had not prescribed a particular formula or method in the statute it reviewed.

Was specific notice of a drug change legally required?
A: The AG said the statutory execution notice did not require those details, although it considered sharing the change with the inmate or counsel prudent.

Did the AG select a particular drug protocol?
A: No. It said that policy decision belonged to the director and did not itself approve a named formula.

Background and statutory framework

The corrections director asked about revising lethal-injection procedures and providing notice of changes. The AG read S.C. Code Ann. § 24-3-530 as placing executions under the director's direction and considered the director's broader prison-management authority. It distinguished statutory notice obligations from the director's discretionary management of drug protocols.

Citations and references

The opinion quotes S.C. Code Ann. § 24-3-530 and cites related corrections-management and execution-notice provisions. It references Pavatt v. Jones in a question about protocol changes without adopting a specific drug choice.

Official title

Concerning the authority of the Director of the Department of Corrections to establish and revise the procedures and protocols concerning the management of lethal injection executions pursuant to S.C. Code Ann. § 24-3-530.

Requester

Mr. William R. Byars, Jr., Director, S.C. Carolina Department of Corrections

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-21-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/byars-tatarsky-os-9251-scdc-execution-protocol.pdf

Original opinion text

ALAN W ILSON
ATIORNEY G ENERAL

April 21, 2011

Mr. William R. Byars, Jr.
Director
South Carolina Department of Corrections
P. 0 . Box 21787
Columbia, S.C. 29221
Re: Execution Protocol
Dear Judge Byars:
I am in receipt of your request to this office concerning the authority of the Director of the Department of Corrections to establish and revise the procedures and protocols concerning the management of lethal injection executions pursuant to S.C. Code Ann. § 24-3-530. Particularly, your question concerns whether you have the authority to revise the particular drugs and /or amounts of the particular drugs to be used in the procedures oflethal injection. A review of the South Carolina Code reveals that the General Assembly has not established any particular statutory formula or method oflethal injection. The legislature did determine that lethal injection is a form of execution for death sentences in South Carolina S.C. Code Ann. § 24-3-530. Rather, it appears that the management oflethal injection executions rests upon the direction of the Department and its Director. The pertinent part reads: (A)

A person convicted of a capital crime and having imposed upon him the sentence of death shall suffer the penalty by electrocution or, at the election of the person, lethal injection under the direction of the Director of the Department of Corrections. ...

§ 24-3-530 (emphasis added). Further, "[T]he Department of Corrections shall provide a death chamber and all necessary appliances for inflicting this penalty and pay the costs thereof out of any funds in its hands." S.C. Code Ann. § 24-3-540. The Director of the South Carolina Department of Corrections has broad authority in this area of the governance of the prison system. "The director shall have authority to make and

REMBERT c. DENNIS Bun.DING • POST OFFICE Box 11549 • COLUMBIA, SC 29211-1549 • TEi..EPHONE 803-734-3970 • FACSJMILB 803-253-6283

Mr. William R. Byars, Jr.
April 21, 2011
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promulgate rules and regulations necessary for the proper performance of the department's functions." S.C. Code Ann.§ 24-1-90. More particularly: The director shall be vested with the exclusive management and control of the prison system, and all properties belonging thereto, subject to the limitations of Sections 24-1-20 to 24-1-230 and 24-1-260 and shall be responsible for the management of the affairs of the prison system and for the proper care, treatment, feeding, clothing, and management of the prisoners confined therein. The director shall manage and control the prison system. S.C. Code Ann.§ 24-1-130. See also, S.C. Code Ann. § 24-1-40 ("The director shall have power to prescribe reasonable rules and regulations governing the humane treatment, training, and discipline of prisoners").

It is our opinion that the Director has the authority to establish reasonable rules and regulations, including the authority to revise existing drug protocols, for the management of lethal injection procedures and protocols.

In addition to inquiring about the authority oflethal injection procedure revisions, you also ask whether notice of the revisions of the lethal injection protocol must be provided to the inmate and/or his counsel. The only required notice to an inmate prior to execution is the statutory notice that is served upon the inmate after the conclusion .of his appeal pursuant to S.C. Code§§ 17-25-370-390. This notice does not require or include any specificity about the particular procedures involved in either lethal injection or electrocution that will be used by the Department. As noted above, the S.C.D.C. Director has the authority to make rules and regulations. See S.C. Code Ann. 24-1-90. But, in our opinion, although not legally required, we find it prudent for S.C.D.C. to provide information about the particular change in the prior procedures involving the drug protocol, if revised, to the inmate and/or his counsel. Finally, you have inquired regarding a change in the drug protocol as to whether you can solely rely upon a decision from the 10th Circuit, in Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010) which denied a stay of preliminary injection and stay of execution to challenge a revision in Oklahoma's execution procedures when it planned to substitute pentobarbital for sodium thiopental. The revision or establishment of any lethal injection protocol is a policy decision that rests with the Director. In making the decision, the Director is empowered to make "reasonable rules and regulations governing the humane treatment. .. of prisoners."§ 24-1-90. Also§§ 24-1130, 24-3-530. In making such decisions concerning lethal injection procedures under his direction, it would be appropriate to take reasonable steps which may include consultation with

Mr. William R. Byars, Jr.
April 21, 2011
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experts and other present or past correctional officials in South Carolina and other states, reviewing prior expert testimony and prior litigation as the Director deems necessary in his discretion. CONCLUSION It is our opinion that the Director has the authority to establish reasonable rules and regulations, including the authority to revise existing drug protocols, for the management of lethal injection procedures and protocols.

Very Truly Yours,
Alan Wilson

Robert D. Cook
Deputy Attorney General