The South Carolina Supreme Court ruled Wednesday that the state’s death penalty, which now includes a firing squad as well as lethal injection and the electric chair, is legal.
All five justices agreed with at least part of the ruling, opening the door to restart executions in a state that hasn’t put an inmate to death since 2011. But two of the justices said they felt the firing squad was not a legal way to kill an inmate and one of them felt the electric chair is a cruel and unusual punishment.
The death penalty law is legal because instead of seeking to inflict pain, the choice between the three execution methods makes it appear that lawmakers are genuinely against inflicting pain and making the death penalty as humane as possible, Associate Justice John Few wrote in the majority opinion.
As many as eight inmates may be out of traditional appeals. It is unclear when executions could restart or whether lawyers for death row inmates can appeal the ruling.
South Carolina has executed 43 inmates since the death penalty was restarted in the US in 1976. Nearly all inmates have chosen lethal injection.
“Choice cannot be considered cruel because the condemned inmate may elect to have the State employ the method he and his lawyers believe will cause him the least pain,” Few wrote.
South Carolina hasn’t performed an execution since 2011. The state’s supplies of drugs for lethal injections expired and no pharmaceutical companies would sell more if they could be publicly identified.
Lawmakers authorized the state to create a firing squad in 2021 to give inmates a choice between it and the old electric chair. The inmates sued, saying either choice was cruel and unusual punishment prohibited by the Constitution.
In spring 2023, the Legislature passed a shield law to keep lethal injection drug suppliers secret and the state announced in September it had the sedative pentobarbital and changed the method of lethal injection execution from using three drugs to just one.
The Supreme Court allowed the inmates to add arguments that the shield law was too secret by not releasing the potency, purity and stabilization of lethal injection drugs.
South Carolina has 32 inmates on its death row. Four prisoners are suing, but four more have also run out of appeals, although two of them face a competency hearing before they could be executed, according to Justice 360, a group that describes itself as fighting for the inmates and for fairness and transparency in death penalty and other major criminal cases.
The state said in its argument before the state Supreme Court in February that lethal injection, electrocution and firing squad all fit existing death penalty protocols. “Courts have never held the death has to be instantaneous or painless,” wrote Grayson Lambert, a lawyer for Gov. Henry McMaster’s office.
But lawyers for the inmates asked the justices to agree with Circuit Judge Jocelyn Newman who stopped executions with the electric chair or firing squad.
She cited the inmates’ experts, who testified at a trial that prisoners would feel terrible pain whether their bodies were “cooking” by 2,000 volts of electricity in the chair, built in 1912, or if their hearts were stopped by bullets — assuming the three shooters were on target — from the yet-to-be used firing squad.
On the shield law, the attorneys for the inmate said they need to know if there is a regular supplier for the drug since it typically only has a shelf life of 45 days and what guidelines are in place to test the drug and make sure it is what the seller claims.
Too weak, and inmates may suffer without dying. Too strong, and the drug molecules can form tiny clumps that would cause intense pain when injected, according to court papers.
“No inmate in the country has ever been put to death with such little transparency about how he or she would be executed,” Justice 360 lawyer Lindsey Vann wrote.
Lawyers for the inmates did tell the justices in February that lethal injection appears to be legal when it follows proper protocols, with information about the drug given to the condemned in a manner that matches what other states and the federal government use.
South Carolina used to carry out an average of three executions a year and had more than 60 inmates on death row when the last execution was carried out. Since then, successful appeals and natural deaths have lowered the number to 32.
Prosecutors have sent only three new prisoners to death row in the past 13 years. Facing rising costs, the lack of lethal injection drugs and more vigorous defenses, they are choosing to accept guilty pleas and life in prison without parole.
