On January 31, 2024, five manufacturers of medicines that are misused in lethal injection protocols collectively filed an amicus brief to state their deep concern about South Carolina’s secrecy law that labels them members of the “execution team”.
In the brief, Exela Pharma Sciences, Fresenius Kabi USA, Hikma Pharmaceuticals USA, Sagent Pharmaceuticals and Sandoz robustly countered the misstatement made by South Carolina officials that manufacturers want secrecy in order to sell their drugs to be used in executions:
“Manufacturers wish to emphasize that a secrecy regime is more harmful than transparency…Manufacturers have repeatedly and emphatically requested that they not be granted cover of secrecy “
They further outlined their opposition to the secrecy law on the basis that it not only compromises the safety and efficacy of drugs, including lethal injection drugs, it also threatens public health, undermines the commercial interests of manufacturers, and exposes them to financial, reputational and legal risks.
“The Manufacturers are gravely concerned by the breadth of the Secrecy Law, and by the dangerous implications of the SCDC’s interpretation of the statute. If allowed to stand, the Secrecy Law would undermine the closed control system in which the Manufacturers and members of the supply chain within the drug distribution space participate to prevent diversion, ensure quality, and provide access for patients. The Secrecy Law not only compromises the safety and quality of medicines, including drugs used in lethal injection executions; it also threatens public health, and undermines the commercial interests of Manufacturers, by exposing them to legal, fiscal, and other harms.”
In May 2023, South Carolina passed one of the most draconian secrecy laws in the US and announced in September 2023 that they procured pentobarbital to carry out executions. The amicus brief by pharmaceutical manufacturers was filed in litigation challenging the constitutionality of secrecy, lethal injection, the electric chair and firing squad.
Another, complimentary, amicus brief was filed by public health experts and outlined the significant public health (including prisoner health) risks that South Carolina has created by enacting this secrecy law. They focused on the fact that the secrecy law prevents federal drug enforcement officials and the public from understanding the sources of execution drugs and how they are acquired, safeguarded, and used. The amicus further highlights that the secrecy law has created a dangerous lack of transparency and oversight of the acquisition and transportation of dangerous drugs used in lethal injection.