On Feb. 6, the South Carolina Supreme Court heard oral arguments in an unusual, triple-barreled challenge to that state’s execution protocol.
In South Carolina, the electric chair is the default execution method unless a condemned inmate chooses to die by lethal injection or the firing squad. The court’s five justices now have to decide whether death by electrocution and the firing squad violates the state constitutional guarantee that “cruel, nor corporal, nor unusual punishment” shall not be inflicted and “whether a 2023 law meant to allow lethal injections to restart keeps secret too many details about the new drug and protocol used to kill prisoners.”
As the Death Penalty Information Center (DPIC) explains, this case “arose when the state claimed that lethal injection was unavailable and set execution dates by electrocution and firing squad under the new protocol.”
South Carolina now faces the possibility that none of its authorized methods of execution will pass constitutional muster. This situation has significance beyond the state’s borders.
It raises the question of what would happen in a state that authorizes the death penalty but has no legal means of carrying it out. The state supreme court should answer that question by saying that unless the state’s methods of execution pass constitutional muster, the death penalty cannot be carried out.
The Palmetto State is one of 14 states that now have the death penalty on the books but have not executed anyone in more than a decade. Other states in that group include California, Kentucky, Louisiana, North Carolina and Pennsylvania.
Today there are 36 inmates South Carolina’s death row. The last execution in the state occurred in 2011, when Republican presidential candidate Nikki Haley was governor. That year, the state put Jeffrey Motts to death using lethal injection. At the time, lethal injection was America’s most popular execution method.
Motts was the first person in South Carolina to be put to death using a new drug combination. As the Post and Courrier reported, “The state had to switch the sedative used as the first drug in the three drug combination from sodium thiopental to pentobarbital because federal agents seized the state supply as part of a nationwide investigation into whether prisons obtained the drugs legally from England.”
South Carolina, PBS News notes, “used to be one of most prolific states in the nation when it came to putting inmates to death. But it has had an unintended moratorium on the death penalty ever since its lethal injection drugs passed their expiration date and pharmacies refused to sell the state more because they could be publicly identified.”
Problems obtaining drugs needed for lethal injections have not been limited to South Carolina. Even when death penalty states have been able to use this method of execution, it has proven to be unreliable. Botched lethal injections have proliferated.
Last year, South Carolina thought it solved its lethal injection problem when it obtained a new supply of pentobarbital and changed its protocol so that only one drug would be necessary for its executions. But, having made lethal injection an optional execution method, the state was not able to resume executions.
In September 2022, a trial court enjoined the state from carrying out executions using either the firing squad or the electric chair, putting forward what the DPIC labelled “a sweeping condemnation of the state’s 2021 method-of-execution statute.”
Judge Jocelyn Newman criticized the state for making a decision that “turned back the clock,” “forcing a person into the electric chair if he refuses to elect how he will die.” She found that both the electric chair and the firing squad were “unconstitutional,” and that the “General Assembly (had) ignored advances in scientific research and evolving standards of humanity and decency.”
South Carolina officials appealed her decision to the state supreme court.
During last week’s oral argument, John Blume, who is representing four death row inmates who brought the suit, defended the judge’s ruling. He told the supreme court that electrocution was “cruel” and that the firing squad was both “corporal” and “unusual,” because it mutilates the body and causes “severe and prolonged suffering.”
In response, state attorney William Grayson Lambert argued, as the DPIC says, “that the firing squad was not unusual because South Carolina and the nation had not ‘clearly moved away’ from using it.” Several justices pushed back, noting “that the firing squad is the least used execution method in American history and has also experienced a long period of disuse.” Chief Justice Donald Beatty said that the firing squad had essentially been on a “fifty-year hiatus.”
Blume urged the court to follow the examples set by state supreme courts in Georgia and Nebraska, both of which outlawed electrocution as cruel and unusual punishment. But Lambert called those cases inapplicable, saying that they “were decided when everyone assumed lethal injection was available” and “when everyone assumed lethal injection was less painful.”
On the lethal injection secrecy issue, Blume said that South Carolina should not be able to carry out any lethal injections under its state secrecy statute. The state, he argued, needs to provide information about the “potency, purity, and stability” of the drugs that would be used. He called on the court to require “testing and transparency policies similar to those in other states and the federal government.”
Lambert replied that “the lawsuit did not concern the secrecy statute directly.” But, if the court wanted to reach that issue, it should uphold the statute.
Finally, the two sides differed as to the appropriate legal standard.
Blume told the court that it should assess South Carolina’s execution methods in light of “evolving standards of decency” and pointed out that the courts in Nebraska and Georgia both used that standard when they found that the electric chair was unconstitutional.
The state argued that the court could only strike down South Carolina’s methods of execution if the plaintiffs showed that “there is an alternative and readily feasible, feasibly implemented method of execution that will significantly reduce a severe risk of substantial pain,” which, he said, they had not done.
State’s attorney Lambert asked the court to conclude that “If capital punishment is constitutional, there must be a constitutional means of carrying out that punishment.”
But that is exactly backward.
Instead, the South Carolina Supreme Court should decide that its state constitution puts the burden on the state to prove that none of its authorized execution methods is “cruel,” “corporal” or “unusual.” It should say clearly that if there is no constitutional means of carrying out a death sentence, then capital punishment itself cannot be constitutional.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.