Charleston, S.C. (CN) — The South Carolina Supreme Court heard arguments Tuesday over the constitutionality of using the firing squad or electrocution to execute death row inmates amid a national shortage of lethal injection drugs.
The justices weighed whether the grisly execution methods violated the South Carolina Constitution, which affords unique protections for condemned inmates. They also considered whether confidentiality around the state’s process for obtaining and testing lethal drugs may increase the risk of a botched execution.
South Carolina passed a law in 2021 permitting the use of firing squads after prison officials announced they did not have access to the drugs needed to carry out lethal injections.
The shortage has impacted capital punishment across the country as drug manufacturers refuse to sell their products for executions. Some states have turned to new methods in response, including nitrogen gas, which Alabama used to execute a 58-year-old inmate in January.
In South Carolina, the electric chair has been a form of capital punishment for decades, but rarely is it used; inmates have chosen to die by electrocution only seven times since 1976.
The 2021 law prompted attorneys for four death row inmates to sue Governor Henry McMasters and the Department of Corrections, arguing the methods were cruel, unusual or corporal.
Richland County Circuit Court Judge Jocelyn Newman ruled in favor of the inmates, determining that electrocution was inconsistent with “evolving standards of decency,” while a fatal shooting amounted to “torture.”
While the case was under appeal, legislators amended the 2021 law to make it easier for the Department of Corrections to obtain lethal drugs. After an extensive search, prison officials announced they secured enough pentobarbital, a sedative, to execute the condemned inmates who had exhausted their appeals.
The development prompted the Supreme Court to remand the case to the lower court so the inmate’s attorneys could investigate the state’s methods for procuring the pentobarbital. But the legislature passed a law last year to protect the state’s lethal drug suppliers from scrutiny.
Attorney John Blume from Cornell Law School’s Death Penalty Project represented the inmates at Tuesday’s hearing. He argued that the state’s new “shield law” meant no one outside of the prison knew if the pentobarbital was procured from a reputable source. The drugs need to be tested for potency, purity and stability — essential elements for conducting a safe execution, Blume said.
“What you want to know, right, is are the drugs going to do the job? And are they going to do the job without some horrible event like Clayton Lockett,” Blume said, referring to a 38-year-old Oklahoma inmate who remained alive for 43 minutes after being administered an untested drug cocktail.
Blume did not dispute that lethal injection was a constitutional method of execution. Electrocution and firing squad, he argued, were a different story.
The state constitution is unique in the protection it affords defendants. It prohibits cruel, corporal or unusual punishments — each a distinct category. Therefore, a punishment needs to meet only a single criteria to be considered unconstitutional in South Carolina.
Blume argued electrocution was a cruel punishment while the firing squad was unusual and corporal.
In the livestock industry, he said, the primary rule for slaughtering animals is not to shock the beast “from head to hoof," because electricity follows the path of least resistance and the skull’s dense bone is difficult to penetrate. The evidence suggests the voltage from an electric chair often bypasses the skull and instead travels through the face and neck, causing agonizing pain, Blume said.
The firing squad was a form of corporal punishment, Blume argued, because it mutilates the body.
The state’s firing squad protocol was developed by the security director for the South Carolina Department of Corrections based on “internet research” and conversations with an official in Utah, where firing squads are legal, according to a brief from the inmates' attorneys.
The protocol requires that a hood be placed over the condemned inmate’s head before he is strapped into a metal chair. Three people armed with rifles would shoot the inmate in the heart with bullets that fragment on impact. They would reload and fire again every ten minutes until the inmate was dead, filings state.
An injection was a “minimally invasive procedure,” Blume said, but shooting someone with meant broken bones and damage to soft tissue.
A firing squad was also unusual, the attorney said. Utah is the only state that permits the method and it has only been used three times since 1976.
Blume pointed out that many states have struggled to obtain lethal drugs, but “they’re not electrocuting people and they’re not shooting people,” again suggesting the methods are unusual.
“It’s your job, in this court, to decide what you are going to tolerate in South Carolina,” Blume said.
Grayson Lambert, senior litigation counsel for the governor’s office, argued corporal punishment was a category for punishments that maim the prisoner but leaves him alive, such as castration. Cruel punishments are ones that unduly add “terror, pain or disgrace” or seek to intensify the death sentence.
The firing squad is a long-used method for performing executions because it is an effective means to bring about a “swift death,” Lambert said.
“Yes, it is bloody,” he said. “That’s the result of a gunshot.”
He said using non-fragmentary rounds would cause less damage to the body, but it would slow the death.
As to electrocution, Lambert argued even the inmate’s expert could not say what impact it has on the brain.
“You cannot attack method after method, where the state is unable to carry out a lawfully imposed death sentence after trial and appeal," Lambert said.
Follow @SteveGarrisonPC
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
California certifies March 5 primary election results April 12, 2024 -
-
Hunter Biden appeals April 12, 2024 -
