Last week, the South Carolina Supreme Court gave the green light for the state to carry out executions using the electric chair, the firing squad, or lethal injection. But it did not gild the lily about any of them
Justice John Few, writing for a majority of the five-member court, put it this way. “The reality,” he said, is “that there is simply no elegant way to kill a man.” He also cited Supreme Court Justice William Brennan, who opposed all forms of capital punishment, for the proposition that “‘arguments about the ‘humanity’ and ‘dignity’ of any method of officially sponsored executions are constitutional contradiction in terms.’”
But Few found that nothing contemplated under South Carolina’s death penalty statute violated its constitutional prohibition of corporal, cruel, or unusual punishment. That statute provides that “a person convicted of a capital crime and having imposed upon him the sentence of death shall suffer the penalty by electrocution or, at the election of the convicted person by firing squad or lethal injection, if it is available at the time of election….”
To reach his conclusion, Few had to do some legal gymnastics that, ultimately, make the state constitutional prohibition of cruel punishment an empty shell. And now, with the blessing of its highest court, South Carolina can carry out executions that are neither humane nor dignified.
The people of South Carolina, only 45% of whom support the death penalty as a punishment for murder, should not put up with the use of brutal methods in executions that will be carried out in their name. They should oppose South Carolina becoming, as an article in Justice 360 puts it, “an outlier, reverting from…lethal injection—to two antiquated, barbarous methods.”
That article explains that the Palmetto State “has never carried out an execution by firing squad and now proposes to use only three volunteer shooters with an undisclosed caliber rifle, thus increasing the risk of error. Alternately, SCDC intends to use the state’s over 100-year-old electric chair, a method with more than a century-long record of horrifically botched executions.”
The 35 people on the state’s death row now will have to contemplate making a truly horrible choice and, in so doing, becoming complicit in their own deaths.
In last week’s opinion, Justice Few ignored that horror. In fact, he praised the fact that death row inmates are allowed to choose how they will die.
He noted that the “element of choice in our statutory scheme for carrying out the death penalty significantly changes the constitutional analysis from the analysis of a statutory scheme in which the state makes the choice.” Few reasoned that the element of choice distinguished South Carolina’s death penalty statute from those previously found unconstitutional by the supreme courts in Georgia and Nebraska.
In “all the litigation that is taking place over whether a particular method of execution is constitutional, the state made the choice as to which method to employ–giving no choice to the condemned inmate, and the question for the courts was whether the state’s one chosen method is constitutional. In any of those cases, the element of choice that South Carolina provides would have changed the constitutional analysis.”
This means Few wrote, that “If any condemned inmate in this state believes that any one of the three methods of execution… is unconstitutional, he has two other constitutional choices.”
There is something deeply troubling about Few’s reasoning. Surely, a state should not be allowed to get away with authorizing a cruel punishment simply because it allows inmates to elect a different mode of punishment.
Few acknowledged what he called the uncertainty that now exists about “the least inhumane method of killing another man.” But he was undeterred by that uncertainty because, after all, any death row inmate can choose a method of execution that “he and his lawyers believe will cause the least pain.”
As to the particulars of the electric chair and the firing squad, Few reminded his readers that “an inmate challenging his impending method of execution as cruel… must prove there is a substantial risk that the state’s use of the method to execute him will inflict unnecessary and excessive pain that goes well beyond what is reasonably necessary to carry out a death sentence.”
In this case, he said the petitioners had not done so. He characterized the expert testimony they presented about the cruelty of death by electrocution as “inconclusive.”
In his view, since the current statute was enacted just three years ago, the state legislature must have been aware of the debate about the pain caused during electrocution and concluded that this method of execution would not cause “unnecessary or excessive pain.” That was good enough for him.
Here again, it is very odd that a court asked to determine whether or not a punishment is cruel would say that because the legislature has authorized it, the punishment can’t be considered cruel. Doing so makes the state’s constitutional protection against cruel punishment an unkept and unkeepable promise.
Turning to the firing squad, Few conceded that “an inmate executed via the firing squad is likely to feel pain, perhaps excruciating pain,…[but] the pain will last only 10 to 15 seconds.” Nonetheless, there is, he said, an emerging “national consensus” that the firing squad may be the best method of execution.
Again, he referenced the opinion of a death penalty opponent, this time Supreme Court Justice Sonia Sotomayor. In 2017, Sotomayor wrote that “the available evidence suggests ‘that a competently performed shooting may cause nearly instant death.’ In addition to being near instant, death by shooting may also be comparatively painless.”
Few concluded that the “10 to 15 second period in which the firing squad might cause an inmate pain comes as close to ‘painless death’…as any method of execution is likely to come.”
The South Carolina Supreme Court could reach this conclusion only by ignoring evidence of the brutality of being shot by high-powered rifles at close range that it dismissively characterized as “dramatic imagery.” That evidence included “blood soaked in the inmate’s clothing, spattered on the walls, and pooling on the floor or other physical violence to the body that occurs simultaneously with or subsequent to the secession of pain.”
The brutality suggested by that evidence explains why the firing squad has been used so rarely in this country, only three times in the last fifty years, with the last use being in 2010 when Utah executed Ronnie Lee Gardner.
The electric chair is no less brutal and inhumane.
As Justice Brennan once described it, during an execution by electric chair: “[T]he prisoner’s eyeballs sometimes pop out and rest on [his] cheeks. The prisoner often defecates, urinates, and vomits blood and drool. The body turns bright red as its temperature rises, and the prisoner’s flesh swells and his skin stretches to the point of breaking. Sometimes the prisoner catches fire…. Witnesses hear a loud and sustained sound like bacon frying, and the sickly-sweet smell of burning flesh permeates the chamber.”
Today, the electric chair is an authorized method of execution in eight states, with South Carolina being the only one where it is the default method. The last time anyone was put to death by electrocution was in 2020 when Nicholas Todd Sutton was executed in Tennessee.
At the end of the day, the South Carolina Supreme Court may have done us all a favor by being candid about the death penalty and executions. But it did the citizens of that state no favor in its use of some strange legal reasoning and in condoning executions using methods which, even it concedes, are not humane.
