SC justices ask why state can’t get lethal drugs as court mulls electric chair, firing squad

The South Carolina Supreme Court could decide this year whether the state’s two execution methods of electrocution and the newly installed firing squad are unconstitutional, or they could decide to send the entire debate back to the lower courts.

On Thursday, five S.C. Supreme Court justices heard opposing arguments over whether the firing squad and the electric chair are lawful methods under South Carolina’s Constitution to put condemned killers to death.

But by the end of a three-hour hearing, a majority of the justices appeared inclined to consider sending the case back to trial court to explore in detail a third issue: Why the S.C. Department of Corrections has for years been unable to obtain the toxic chemicals needed to carry out a third approved method of execution, lethal injection.

“One of the great mysteries in this case is why is South Carolina, the only state in the country that wants to execute people, ... can’t get the execution drugs,” said John Blume, a lawyer for four condemned death row inmates who are suing Gov. Henry McMaster and S.C. Department of Corrections Director Bryan Stirling.

Blume attacked the electric chair and the firing squad as unconstitutional, describing the latter as fragmented bullets hitting the chest, then mutilating the body. The electric chair, he said, is like “cooking” someone to death.

The ability for the state to offer lethal injection is central to the case because the four condemned inmates Blume represents — Freddie Owens, Brad Sigmon, Gary DuBose and Richard Moore — want to be executed that way, and not by the state’s two alternate methods of electric chair or firing squad.

South Carolina has not carried out an execution since 2011 because the state says drug companies are unwilling to be disclosed publicly as having given the drugs used for the deadly cocktail.

Stirling and the governor have both pushed the state Legislature to pass what’s called a “shield law,” giving cover to drug companies from having to disclose their name. Lawmakers’ efforts, however, have so far been unsuccessful.

Hoping to move executions along, lawmakers in 2021 passed legislation that says if lethal injection is not available, inmates can choose to die by either the electric chair or firing squad. If the inmate does not choose, the electric chair is the default method.

South Carolina is only one of four states that allow executions by firing squad. The others are Oklahoma, Utah and Mississippi.

South Carolina’s Constitution says “nor shall cruel, nor corporal, nor unusual punishment be inflicted.”

The state Constitution’s limits on punishments go further than limits imposed by the Eighth Amendment in the U.S. Constitution, which only prohibits “cruel and unusual” punishments.

Last September, state Judge Jocelyn Newman ruled that the firing squad and the electric chair execution methods are unconstitutional, stopping the state from moving forward on any executions. McMaster and Stirling then appealed to the state Supreme Court.

Associate Justice Kaye Hearn on Thursday agreed with Blume that the state’s inability to get the toxic chemicals for lethal injection is a major question surrounding the four inmates’ upcoming executions.

“It’s certainly a question that this court has,” Hearn told Blume. “Do you have an explanation?”

“I don’t,” Blume replied.

Daniel Plyler, a lawyer representing the state Department of Corrections, referred to that dilemma, telling the justices, “It’s not like these (drugs) can be bought on a shelf in a store somewhere.”

Efforts to get lethal injection cocktail

Blume conceded Thursday that he had no legal objection to lethal injection because the U.S. Supreme Court has upheld that method as constitutional and humane.

A relatively painless way of putting inmates to death, lethal injection is the primary method of execution in 28 of 29 states that authorize executions, according to the National Conference of State Legislatures.

But as Thursday’s hearing wore on, other justices indicated they wanted to know why the state Department of Corrections has been unable to get the toxic chemicals.

“The elephant in the room is why can’t we do what every other state does and give the drugs and not have these battles?” Associate Justice John Kittredge said. “If we are going to have a death penalty, we want to do it in a way that is the most painless and not the way that is the most gruesome, or the most horrific. It’s beyond me why so many states can find the drugs and we can’t.”

Associate Justice John Cannon Few suggested there is little excuse for the corrections department not to have the drugs on hand for executions.

“We see it (an execution) coming for years. We know when it’s going to come about,” he said. “There is a lengthy period of time in which the Department of Corrections can make itself ready to have the drugs available.”

“If other states are carrying out executions by lethal injection, obviously it (toxic chemicals) is available,” Chief Justice Donald Beatty told Grayson Lambert, an attorney for McMaster.

Before Lambert could answer, Few interjected.

“Why shouldn’t the director of the prisons in South Carolina not have to pick up the phone and call the director of prisons in Oklahoma and say, ‘Hey, do you have any extra phenobarbital that you can sell us?’” Few said.

Phenobarbital, a sedative, is one widely used drug in lethal injection executions.

Lambert agreed it would be reasonable for South Carolina to try to get lethal drugs from other prison systems.

That prompted Kittredge to speculate whether the justices might consider sending the whole issue back to a lower court to explore whether the state had done everything possible to secure lethal injection drugs.

Lambert opposed that move, saying that just because the firing squad and electrocution might be more painful than lethal injection, that doesn’t mean they are unconstitutional methods. He described Blume, a law professor from Cornell Law School who grew up in South Carolina, as part of what has been called “a guerrilla war on capital punishment,” where someone attacks each method one by one, so there’s no way to carry out a death sentence.

Hearn told Lambert that South Carolina is the only state that can’t get lethal drugs, but Lambert replied that other states could run into similar problems in the future.

“Just because other states have them now doesn’t mean they are going to keep being able to get them,” Lambert said.

“It seems to me, and maybe I’m being too practical — go get the drugs,” Associate Justice George “Buck” James told Lambert.