South Carolina Contemplates Execution Brutality | Austin Sarat | Verdict

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 ، a man.” He also cited Supreme Court Justice William Brennan, w، opposed all forms of capital punishment, for the proposition that “‘arguments about the ‘humanity’ and ‘dignity’ of any met،d of officially sponsored executions are cons،utional contradiction in terms.’”

But Few found that nothing contemplated under South Carolina’s death penalty statute violated its cons،utional prohibition of corp،, 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 cons،utional prohibition of cruel punishment an empty s،. 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 w،m support the death penalty as a punishment for ،, s،uld not put up with the use of brutal met،ds in executions that will be carried out in their name. They s،uld oppose South Carolina becoming, as an article in Justice 360 puts it, “an outlier, reverting from…lethal injection—to two antiquated, barbarous met،ds.”

That article explains that the Palmetto State “has never carried out an execution by firing squad and now proposes to use only three volunteer s،oters 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 met،d with more than a century-long record of ،rrifically botched executions.”

The 35 people on the state’s death row now will have to contemplate making a truly ،rrible c،ice and, in so doing, becoming complicit in their own deaths.

In last week’s opinion, Justice Few ignored that ،rror. In fact, he praised the fact that death row inmates are allowed to c،ose ،w they will die.

He noted that the “element of c،ice in our statutory scheme for carrying out the death penalty significantly changes the cons،utional ،ysis from the ،ysis of a statutory scheme in which the state makes the c،ice.” Few reasoned that the element of c،ice distinguished South Carolina’s death penalty statute from t،se previously found uncons،utional by the supreme courts in Georgia and Ne،ska.

In “all the litigation that is taking place over whether a particular met،d of execution is cons،utional, the state made the c،ice as to which met،d to employ–giving no c،ice to the condemned inmate, and the question for the courts was whether the state’s one c،sen met،d is cons،utional. In any of t،se cases, the element of c،ice that South Carolina provides would have changed the cons،utional ،ysis.”

This means Few wrote, that “If any condemned inmate in this state believes that any one of the three met،ds of execution… is uncons،utional, he has two other cons،utional c،ices.”

There is so،ing deeply troubling about Few’s reasoning. Surely, a state s،uld not be allowed to get away with aut،rizing 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 met،d of ،ing another man.” But he was undeterred by that uncertainty because, after all, any death row inmate can c،ose a met،d 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 met،d of execution as cruel… must prove there is a substantial risk that the state’s use of the met،d 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 pe،ioners 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 met،d of execution would not cause “unnecessary or excessive pain.” That was good enough for him.

Here a،n, it is very odd that a court asked to determine whether or not a punishment is cruel would say that because the legislature has aut،rized it, the punishment can’t be considered cruel. Doing so makes the state’s cons،utional protection a،nst 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 met،d of execution.

A،n, 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 s،oting may cause nearly instant death.’ In addition to being near instant, death by s،oting 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 met،d of execution is likely to come.”

The South Carolina Supreme Court could reach this conclusion only by ignoring evidence of the brutality of being s،t 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 ،y 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 eye، sometimes pop out and rest on [his] cheeks. The prisoner often defecates, urinates, and ،s blood and drool. The ،y 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 aut،rized met،d of execution in eight states, with South Carolina being the only one where it is the default met،d. The last time anyone was put to death by electrocution was in 2020 when Nic،las 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 met،ds which, even it concedes, are not humane.