South Carolina Supreme Court Breathes New Life Into Old Execution Techniques

South Carolina had an execution problem. Although the state’s laws allow the death penalty for capital crimes, the government has not been able to actually execute any prisoners because, like many other states, it could not obtain the drugs used for lethal injections. With a majority of Americans opposed to capital punishment, drug manufacturers have been reluctant to be associated with the practice and have refused to sell the compounds to prisons. Resultingly, the last lethal injection performed in South Carolina was in 2011.

In 2021, a new state law changed the primary method of execution to electrocution and permitted the option of a firing squad. Lethal injection remained an option in the new scheme, but it was subject to the availability of the necessary drugs. In April, the state’s first scheduled execution by firing squad was halted by the South Carolina Supreme Court while it considered challenges to the new law brought by death row inmates who had been informed that lethal injection drugs were not available.

State Supreme Court Dismisses Concerns about Painful Executions

The legal challenges brought against the electric chair and the firing squad were grounded in Article 1, Section 15 of the South Carolina Constitution, which reads, in part, “nor shall cruel, nor corporal, nor unusual punishment be inflicted…” This provision, a cousin of the Cruel and Unusual Punishment Clause of the Eighth Amendment to the U.S. Constitution, was argued to offer a higher level of protection than that of the federal Bill of Rights.

The majority opinion surmised that because capital punishment was allowed by the state’s constitution, there must be a constitutional method of performing executions. Using this logic, it concluded that the prohibition against “corporal” punishment was inapplicable to executions by selecting a definition of corporal from 1769 treatise that included the intent to correct the behavior of the punished.

The majority also determined that neither the firing squad nor the electric chair could be classified as “unusual” punishments, despite the great infrequency of their use. Only seven electrocutions had been performed in South Carolina since 1976, and only thirty-four firing squad executions had been conducted nationwide since 1900. However, rarity alone would not suffice to establish a punishment as unusual; instead, the majority held that a punishment must also be rejected by the populace in order to meet the legal definition of unusual. The court cited hanging as an example of a rejected punishment.

Turning to the third prong of Article 1, Section 15, the Supreme Court reviewed factual submissions from experts who detailed the intensity and duration of pain that might be experienced by humans who are subjected to a lethal electrical current or multiple gunshots. The evidence included medical opinions that those who are executed by either a firing squad or an electric chair may suffer up to fifteen seconds of excruciating pain before death. Of course, the limitation to fifteen seconds assumes that the execution occurs without a hitch; either method could be far more painful if the process is botched.

Concerns about painful execution processes did not deter the Court from stamping constitutional approval on both methods of execution. Content in its reasoning that a painless death is not required by Article 1, Section 15, the Court upheld the new statute in its entirety.  

South Carolina Refuses to Pull the Plug Like Other States

In upholding the statute’s mandate for electrocution, the South Carolina Supreme Court declined to follow the examples of two other states that had ruled the process was unconstitutional when compared with the more humane means of lethal injection.

In neighboring Georgia, the electric chair was found unconstitutional in 2001. After reviewing similar medical evidence in Dawson v. State, the Georgia Supreme Court found that electrocution was unconstitutionally cruel because it “inflicts purposeless physical violence and needless mutilation that makes no measurable contribution to the accepted goals of punishment.”

A similar constitutional challenge to electrocution succeeded in Nebraska. In the 2008 case State v. Mata, that state’s highest court rejected the premise that fifteen to thirty seconds of “gruesome” pain would not be unconstitutionally cruel. The majority opinion compared the use of the electric chair to burning an inmate at the stake, calling the pain inflicted “intolerable” and “wanton.”

“Shield Laws” Put Drug Manufacturers Back in the Death Penalty Business

Although the legislature and courts in South Carolina paved the way for executions to occur using the newly approved methods of firing squad and electrocution, the shortage of lethal injection drugs that prompted the change to the law also came to an end. In a recent statement, the director of South Carolina’s prisons asserted that all three methods of execution were tested and ready, as the state moves forward with scheduling executions of prisoners.

While searching for a solution to the drug shortage, legislators passed a “Shield Law” to prohibit the release of the identity of any manufacturer who provides drugs used for lethal injections in the state. That statute seems to have worked, as the drugs are back in stock. As it turns out, the drug companies did not have a moral objection to the death penalty; they simply objected to the bad publicity.

Related Resources:

• Cruel and Unusual Punishment (FindLaw's Learn About the Law)
• Biden Proposes Term Limits for SCOTUS (FindLaw’s Federal Courts)
• Death Penalty Sought for Buffalo Mass Shooter (FindLaw's Courtside)