Tuesday, November 17, 2020
A number of states with the death penalty have enacted death penalty secrecy statutes. According to the Death Penalty Information Center,
As far as I can tell, however, South Dakota is the only state with an evidentiary privilege connected to executions.
Section 19-19-516 of the South Dakota Codified Laws states that
The secretary of corrections, the warden of the penitentiary, penitentiary staff, and Department of Corrections staff may not be examined as to communications made to them concerning an execution of an inmate under chapter 23A-27A. The privilege described in this section may be claimed by the secretary of corrections, the warden of the penitentiary, penitentiary staff, Department of Corrections staff, or by any representative of any of the foregoing to be examined and is binding on all of them. However, the secretary of corrections and the warden of the penitentiary may personally waive the privilege described in this section.
I haven't been able to find any legislative history connected to this privilege. That said, the seeming practical import of this privilege would be that the warden, etc. could invoke this privilege if being questioned about what went wrong during a botched execution. And, unfortunately, that makes executions even more of a black box.