South Carolina Argues Electric Chair and Firing Squads Are Constitutional

The firing squad execution chamber at the Utah State Prison in Draper, Utah, on June 18, 2010. (Trent Nelson/AP)

As states have struggled to acquire the medications used since the 1990s to put inmates to death via lethal injection, the landscape for having a method of execution that can be carried out has been complex in the United States.

This week, the South Carolina Supreme Court heard oral arguments in a case in which death-sentenced prisoners challenged the state’s electrocution and firing squad execution methods as unconstitutional, citing the Eighth Amendment of the United States Constitution and the state’s own Constitution, which prohibits cruel and unusual punishment, with the addition of corporal punishment for the latter.

Deciding how to interpret cruel, unusual, or corporal has been an issue raised to the courts before, with South Carolina Chief Justice Donald W. Beatty stating prior to the beginning of oral arguments that “this is a case we’ve had more than once, we’ll have it again today, and I think we’ll probably have it again.”

The case made its way to the court from a lower court, which previously issued an injunction against the use of those methods based on the state Constitution’s prohibition against cruel, unusual, or corporal punishment.

John Blume, attorney for the death row inmates, argued that the lower court did not err and that electrocution was “cruel,” while the firing squad is “corporal” and “unusual.”

The state argued the circuit court erred in their ruling by “applying a novel legal test that requires a method of execution to cause a painless or instantaneous death to be constitutional,” and that the inmates failed to prove beyond a reasonable doubt that the methods the state was using were cruel or unusual and therefore unconstitutional.

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Republican Gov. Henry McMaster and his office’s senior legal counsel Grayson Lambert further argued that inmates were sure to argue that any method of execution was improper and result in a litany of “endless” court proceedings.

At lesser issue was the state’s shield statute, which details the obligation it has to share information about the lethal injection drugs it uses.

Arguments Heard

The original lawsuit targeted the state’s 2021 execution protocols, allowing prisoners to choose their method of execution as electrocution, firing squad, or lethal injection—with electrocution as the default, the only such default protocol in the United States.

South Carolina, along with several other states, have not carried out executions in many years due to difficulty in obtaining injection drugs, with the Palmetto State not carrying one out since 2011. Executions were set to resume using electrocution and firing squad, arguing the third option of lethal injection was unavailable.

Last January, the state’s high court remanded the same case back to the circuit court, while ruling that the state must hand over information in discovery as to how they determined lethal injection was not available. In late 2023, the state announced it had again been able to obtain the main drug used for lethal injections.

The gurney in Huntsville, Texas, where Texas's condemned are strapped down to receive a lethal dose of drugs in this May 27, 2008 file photo. (AP Photo/Pat Sullivan)

Justice John Kittredge noted that in the last 50 years, only Utah had used a firing squad and hasn’t done so since 2010 after a “horrific episode” when that execution garnered national media attention.

Mr. Lambert disagreed with the characterization by Mr. Kittredge, stating, “we saw the pictures and the pictures were bloody, but that doesn’t mean that it was a horrific episode in that the execution was somehow botched.”

Mr. Lambert said the state defined the three criteria at hand as cruel punishment defined as superadding terror, pain, or disgrace, or seeking to intensify a death sentence; unusual punishment as being contrary to immemorial or long usage; and corporal punishment as a separate category of punishment that affects the body but leaves the prisoner alive.

The defense or court did not argue with Mr. Lambert’s definition of the three criteria for determining constitutionality of methods of execution.

Unusual Punishment

A litany of questions were asked to Mr. Lambert regarding what was considered unusual and whether firing squad could be considered so because of its lack of use.

He argued while it had not been used as frequently as other options, it was still an option in many states.

The court asked whether hanging could then be brought back as a method of execution, something Mr. Lambert said was unequivocally proven as cruel as well as unusual.

The court also asked whether evolving standards of what is decent and what is not had any impact on the argument of what was cruel or unusual.

Mr. Lambert argued that the U.S. Supreme Court does not use evolving standards of decency but rather a newer legal test in which the inmate has to prove that an alternative method of execution would cause death in a manner that was less painful does exist.

“If capital punishment is constitutional, there must be a constitutional means of carrying out that punishment,” he said. “You cannot attack, method by method, where the state is left unable to carry out a lawfully imposed death sentence after trial and after appeal.”

Transparency

Lesser an issue was the state’s shield law, which they argue allows the state to procure the medications to carry out executions if the drug companies remain exempt from any public record.

The law is written as requiring the “nondisclosure of identity of members of an execution team and the acquisition of drugs to administer a death sentence.”

Inmates and attorneys argue they have a right to more information about the drugs, such as if the supply is regular and if the drug has been compounded or mixed, or has been tested independently to prove it is what the anonymous supplier’s allege it is.

Mr. Lambert argued that even a small bit of information could allow the public to put puzzle pieces together and figure out where the drugs came from, violating their protection under the state’s shield statute.

The justices implied that the law was not broad enough, suggesting it should be up to the state’s director of prisons to release some minimum disclosure on why he thinks the drugs were okay to use and whether testing had been done independently or in-house through their own experts.