CHARLESTON, S.C. (CN) — The South Carolina Supreme Court ruled Wednesday the electric chair and firing squad were constitutional methods for executing death row inmates amid a national shortage of lethal injection drugs.
Noting the state had not executed an inmate for more than 10 years, Justice John Cannon Few wrote in a 40-page opinion for the majority that state lawmakers have made a “sincere effort” to make the death penalty less inhumane while permitting the state to do its duty.
Few rejected arguments from four death row inmates who challenged the methods as corporal, cruel or unusual punishments — all prohibited under the state constitution.
“Because the death penalty is constitutional, there is necessarily a constitutional method of carrying it out,” Few wrote. “Stating this constitutional principle differently, the constitution will never prohibit all methods of execution; or, at least one available method is necessarily constitutional.”
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 four death row inmates to sue Governor Henry McMasters and the Department of Corrections, arguing the methods were cruel, unusual or corporal.
A Richland County judge ruled in favor of the inmates before the issue was appealed to the State Supreme Court, which heard oral arguments in February.
Relying on a definition of “corporal punishment” provided by Sir William Blackstone in a 1769 commentary on English laws, Few determined the methods did not constitute corporal punishment.
Blackstone wrote corporal punishment was inflicted to reform an offender or discourage him from committing future crimes. But reform is obviously unnecessary if the defendant is dead, Few observed.
Few wrote the electric chair and firing squads were not cruel methods, either.
Attorney John Blume from Cornell Law School’s Death Penalty Project represented the death row inmates during February’s arguments. He told the justices voltage from an electric chair often bypasses the skull and instead travels through the face and neck, causing agonizing pain.
But Few wrote experts gave mixed opinions on whether electrocution posed a substantial risk of unnecessary and excessive pain. In regards to the firing squad, experts said an inmate shot in the heart may feel pain, even excruciating pain, but the suffering would be brief before the inmate loses consciousness.
“Other evidence indicates that unless the shots each miss their mark, the inmate will be unconscious — and therefore insensate to pain — very soon after ten seconds have elapsed,” Few wrote.
Few also said the methods were uncommon, but not unusual forms of punishment.
Since 1976, only seven men have chosen to die by the electric chair in South Carolina, one of only a handful of states that still permits the method of execution.
Electrocution is uncommon, but in the 1990s, Few noted, so was lethal injection. Instead, an unusual punishment is defined as method rejected by the public, such as public hanging, which was outlawed in South Carolina in 1912.
“The simple statistical fact a method of execution has never been used, or has not been commonly used in recent years, cannot render the method 'unusual' in its constitutional sense,” he wrote.
No inmate has been executed by firing squad in South Carolina, and it remained extremely rare nationally, but has not been outlawed and “there is a serious discussion developing in this country as to whether the firing squad is a less inhumane method of execution than even lethal injection,” Few wrote.
He pointed to a federal case involving Alabama inmate Anthony Boyd, who sued state officials in 2015 for denying his request to be executed by firing squad or hanging. The case reached the 11th Circuit Court of Appeals, which decided in a divided opinion that a federal judge correctly ruled Alabama prison officials sufficiently determined that lethal injection was less painful than the firing squad.
The 11th Circuit also ruled last year that inmate Michael Wade Nance could pursue a similar lawsuit in Georgia, Few wrote.
Justices Donald W. Beatty and John W. Kittredge wrote separate opinions offering partial dissents.
Both justices criticized the majority’s claim that a punishment must be rejected by the public to be considered unusual.
“A thorough historical review of the firing squad reveals its centuries-long, complete disuse in South Carolina may be fairly attributed to our state's rejection of the firing squad as a method of execution, just as we may say about a number of centuries-old methods of execution,” Kittredge wrote.
Beatty further argued electrocution was unconstitutionally cruel, comparing the method to burning a person at the stake.
“In my view, electrocution, which experts have stated routinely results in flames and plumes of smoke, the charring of the prisoner, and other evidence of burning, is essentially another form of setting prisoners on fire,” Beatty wrote.
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