South Carolina High Court Hears Challenge to Firing Squads and Electric Chair
States have increasingly turned to antiquated, painful methods of execution in response to shortages of lethal injection drugs.
The South Carolina Supreme Court will hear oral arguments Tuesday in a case arguing that execution by electrocution or firing squad both violate the state constitution.
Decades ago, South Carolina adopted lethal injection as its default method of execution because, as one lawmaker put it, that method was “more humane than dying in the electric chair.” But around 2010, the drugs used in lethal injections started becoming increasingly scarce. In response, South Carolina enacted a law in 2021 changing the default method of execution to electrocution and adding death by firing squad as a third permissible way for the state to kill people.
Four people sentenced to death in the state sued, arguing that death sentences carried out by electrocution and firing squad violated the state constitution’s prohibition against cruel, unusual, or corporal punishment. In Owens v. Stirling, the plaintiffs offer disturbing descriptions of the challenged methods. They provide grisly details about what electrocution does to the human body, describing past botched electric chair executions in which people condemned to death caught fire while still alive. And they paint a gruesome picture of South Carolina’s firing squad execution process: The protocol envisions three people standing 15 feet away from a condemned person strapped to a chair. The executioners are to shoot the condemned person every 60 seconds with a rifle loaded with ammunition “designed to fragment and cause greater damage to the chest . . . with each bullet creating a four-to-six-inch cavity.” A department of corrections employee testified that this protocol was largely informed by “internet research,” without the input of “any doctors, firearms experts, ballistics experts, or any professional who could determine the proper positioning of the target on the [person’s] body.”
The plaintiffs maintain that these methods of execution are cruel because they involve excruciating pain and, sometimes, a lingering death. They are unusual because electrocution has only been used in South Carolina seven times in the last 50 years and the firing squad has never been used, and both have fallen out of use outside the state over the last half century. And they are corporal because they destroy the human body.
But, the plaintiffs argue, “a punishment need only be cruel or unusual or corporal, not all three, to violate the constitution.” That’s because the state’s anti-punishment clause is phrased in the disjunctive — unlike the federal Eighth Amendment, which bars “cruel and unusual punishment” (emphasis added). The plaintiffs point to cases in nine other states interpreting disjunctive phrasing as more protective than the Eighth Amendment. And they rely on legislative history from states that opted to use “and” precisely because the conjunctive phrasing would make it harder for a plaintiff challenging a punishment to prevail. The plaintiffs also point out that South Carolina is the only state in the country that prohibits corporal punishment, not just cruel or unusual punishment. “The drafters of our constitution presumptively intended to give meaning to all three words,” the plaintiffs say.
The state counters that the constitutional provision barring cruel, unusual, or corporal punishment must be interpreted according to the understanding of its framers. Electrocution is constitutional, it says, because it was the only method of execution in use when the clause was ratified. Although the firing squad is a new method of execution in the state, the state looks to U.S. Supreme Court precedent from 1878 allowing death by firing squad under the federal Constitution to illustrate that it is not unusual outside the state. It is not cruel, the state says, because it leads to a quick death. Finally, it maintains that the ban on corporal punishment doesn’t apply to capital punishment at all — rather, it concerns “bodily punishments” like castration.
The plaintiffs also say that the 2021 method-of-execution law is unconstitutional in other ways, including that it is vague, delegates too much authority to the executive branch, and violates prohibitions on retroactive laws because the newly adopted execution methods constitute a greater punishment than they faced when convicted. And they challenge a separate, subsequent law providing that lethal injection drugs could be obtained from anyone — not just a licensed pharmacist — and shielding the identities of those providing the drugs. They argue that there is no way to discern whether execution by lethal injection comports with the state constitution without information about the drugs to be used.
In 2022, a lower court ruled that the method-of-execution statute was unconstitutional. It rejected the state’s claim that the state constitutional clause limiting permissible punishments is coextensive with the federal Eighth Amendment and agreed with the plaintiffs that a punishment failing any one of the clause’s prohibitions — whether cruel or unusual or corporal — was unconstitutional. It found that death by electrocution or firing squad failed all three and enjoined the state from executing the plaintiffs using either of those methods.
On appeal, the state supreme court declined to address the merits of the constitutional arguments. Instead, it directed the lower court to conduct discovery into the state’s efforts to obtain the drugs needed for lethal injection. But before that discovery could take place, the state passed the law shielding the identities of those providing the drugs. It thereafter declared that it had obtained the drugs necessary to make lethal injection available as a method of execution and attempted to dismiss the case as moot. The supreme court denied that motion. Now the case is back before the supreme court, which is expected to address the core constitutional questions this time around.
The South Carolina Supreme Court has never explicitly ruled that the state’s ban on cruel, unusual, or corporal punishment is more protective than the federal Eighth Amendment. It has, however, occasionally issued specific rulings departing from the U.S. Supreme Court’s Eighth Amendment jurisprudence. For example, after the U.S. Supreme Court ruled that mandatory life sentences without the possibility of parole were unconstitutional for people under 18, the South Carolina Supreme Court applied that principle retroactively — almost two years before the federal high court did the same. It also went further than the U.S. Supreme Court by granting resentencing hearings to every person in the state serving life-without-parole sentences for crimes committed as juveniles.
South Carolina’s supreme court will not be the first to consider whether electrocution violates the state constitution. The high courts of Georgia and Nebraska have both declared the method of execution unconstitutional. The Florida Supreme Court, meanwhile, reached the opposite conclusion. No state supreme court has ruled on the constitutionality of the firing squad.
The oral arguments in this case come at a time when states across the country face shortages of the drugs used for lethal injection. Pharmaceutical companies have blocked the sale of their products for use in executions, explaining that their drugs are meant to save lives, not end them. In response, multiple states have turned to antiquated or untested methods of execution. Eight states now allow electrocution, and five have legalized the firing squad. Some, including Alabama, Oklahoma, and Mississippi, have also authorized nitrogen hypoxia for executions, in which a person is forced to breathe pure nitrogen until they suffocate from lack of oxygen. On January 25, Alabama carried out the nation’s first-ever execution by nitrogen gas. People present at the execution said the condemned man “shook and writhed” for over two minutes and then “breathed heavily” for several more before being pronounced dead.
At a news conference following the execution by nitrogen gas, the Alabama attorney general addressed other states: “Alabama has done it, and now so can you.” Should the South Carolina Supreme Court declare electrocution and firing squad unconstitutional, South Carolina lawmakers may try.
Kathrina Szymborski Wolfkot is the managing editor of State Court Report and senior counsel in the Judiciary Program at the Brennan Center for Justice.
Jamie Muth is the special assistant to the Judiciary, Voting Rights, and Elections Programs at the Brennan Center for Justice.