The South Carolina Supreme Court heard arguments on Tuesday from attorneys representing four inmates sentenced to die on whether the state’s current death penalty options amount to “cruel and unusual punishment.”
South Carolina typically uses an electric chair for executions. The state’s chair was built in 1912, and attorneys argued that the old equipment might not be effective, reported The Associated Press.
State law also permits death by firing squad, though that method has never been used. Lethal injection is also an option in the state, but that process has been tied up in legal wrangling.
The state has not held an execution in 13 years as the maker of the drug cocktail used for lethal injections declined to sell the product to the state. The manufacturer had sought identity protection to prevent members of the public from knowing who made the drugs.
A 2018 court ruling initially claimed the state would need to name the pharmacy but later reversed the decision. Later that year, BuzzFeed News identified the supplier.
Last year, the legislature passed a shield law that prevents the disclosure of the names or identities of anyone involved in the planning or process of performing an execution.
South Carolina Gov. Henry McMaster signed the shield law in May 2023, after which the state was able to obtain a supply of the drug pentobarbital. The single drug replaces a three-drug cocktail that was last used in 2011.
Lawyers for the inmates argue that South Carolina is unnecessarily secretive about the drug, claiming that most of the other six states that use pentobarbital release data on its purity, potency, and stabilization. The drug has a short shelf life of just 45 days, and a weak dose may not be effective and inflict pain, according to the AP.
The plaintiffs allege in court documents that the drug may have unintended effects and could lack purity and dosage testing. Prisons primarily purchase the drug from compounding pharmacies, which are not as tightly regulated as FDA facilities. Hypothetical concerns have been raised about the use of the drug, though courts have dismissed these arguments.
In a letter to the court, attorney Grayson Lambert, who represents Gov. McMaster’s office, said, “Courts have never held the death has to be instantaneous or painless.”
According to a statement from the governor’s office, pentobarbital is approved for use by the U.S. Bureau of Prisons, and courts have upheld the use of the drug. Texas, which became the first state in the nation to use lethal injection in 1982, uses pentobarbital for executions.
In all, South Carolina has 33 inmates currently on death row. Eight of the 33 have run out of appeals, but only four are currently seeking protection through the Supreme Court. Two of the remaining four inmates await competency testing before their executions can move forward.
