Jurisprudence

South Carolina Judge Bars State Executions Method Similar to “Being Burned Alive” and “Torture”

A wooden chair with straps and electric devices, looks very much like an old torture implement.
The decommissioned electric chair in which 361 prisoners were executed between 1924 and 1964, is pictured 05 November 2007 at the Texas Prison Museum in Huntsville, Texas. Fanny Carrier/AFP/Getty Images

Death in the electric chair is like “being burned alive.” The firing squad is like “torture.”

Those were the conclusions of a truly unprecedented judicial “two-for.” On Wednesday, a South Carolina state judge, Jocelyn Newman, relying in large part on that state’s constitution, struck down two methods of execution at once. Unless it is reversed on appeal, her decision brings that state’s death penalty apparatus to a halt.

Judge Newman’s ruling is a welcome recognition of America’s current methods of execution mess and the folly of trying to solve it by resurrecting previously discredited ways of putting condemned inmates to death. The mess has been caused by drug shortages due to suppliers that don’t want to be involved with capital punishment, and it has led to experimentation with new drugs and drug combinations. The mess has sometimes halted lethal injection executions entirely, or more often made this already unreliable method even more error-prone. It has also led to experimentation with previously abandoned methods of execution, like the ones that were struck down in South Carolina this week.

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Judge Newman’s ruling is also a clear break with a long history in which courts have, with a few notable exceptions, generally deferred to legislative decisions about execution methods.

In fact, more than a century ago, the United States Supreme Court gave its blessing to both the firing squad and the electric chair.

In 1878, the court reviewed the firing squad’s history and extensive use in military executions. It determined that, even though “[c]ruel and unusual punishments are forbidden by the Constitution”:

the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category within the meaning of the Eighth Amendment.    

Twelve years later, the court upheld New York’s decision to replace hanging with the electric chair, calling the latter a “humane method” even though such an electrocution had never been carried out.

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In the more recent past, other courts have given the green light to hanging. Almost 30 years ago, the U.S. Court of Appeals for the 9th Circuit found that hanging, the method then used in the state of Washington, did not violate the United States constitutional prohibition of cruel and unusual punishment. The court concluded that hanging does not involve “the wanton and unnecessary infliction of pain.”

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However, since the start of this century, the electric chair has not fared quite as well when it has had its day in court. Two state supreme courts, one in Georgia in 2001 and one in Nebraska seven years later, have declared it illegal in their states.

The Georgia Supreme Court, hardly a citadel of judicial liberalism and activism, called attention to what it called the “specter of excruciating pain and… certainty of cooked brains and blistered bodies” associated with electrocution. The Nebraska Supreme Court said that “electrocution has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber of state prisons.”

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That brings us back to South Carolina.

In 2021 South Carolina, which has been unable to get the drugs needed for its lethal injection protocol for a long time, added electrocution and the firing squad to its roster of execution methods. Other death penalty states authorize them but still use lethal injection as the default method. South Carolina now requires death inmates to choose between being shot and electrocuted as their method of execution, but is the only state to use the electric chair if the condemned inmate refuses to make a choice.

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Responding to this legislative change, several death row inmates brought suit, and offered a long list of alleged violations of law. Key to their suit was their contention that “both electrocution and the firing squad are prohibited by the South Carolina constitution” and that their “right to elect their manner of execution is rendered meaningless by the lack of constitutional choices….”

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Judge Newman found in their favor on all counts.

After undertaking a detailed and careful evaluation of the conflicting expert testimony about each execution method, she found both the firing squad and the electric chair to be wanting and, as applied by the South Carolina legislature, to violate the South Carolina and the U.S. constitutions.

First, the firing squad: Being put to death by a firing squad is the rarest of all the methods of execution (the others being hanging, the electric chair, the gas chamber, lethal injection) used in the United States since 1900. During that period, it has only been the method of choice in 34 executions, all but one of which were in Utah.

Judge Newman described the firing squad as a “reversion to a historic method of execution that has never before been used by our State….” She concluded that it would be “unusual” and for that reason unconstitutional.

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But her indictment of the firing squad did not stop there. Someone subject to execution by firing squad, she added “will feel excruciating pain resulting from the gunshot wounds and broken bones…. The firing squad mutilates the human body.”

She likened it to “torture.” And, borrowing a phrase from the U.S. Supreme Court’s definition of what would make an execution cruel, Judge Newman said that the firing squad causes “pain beyond that necessary for the mere extinguishment of ….(life).”

The judge was also unsparing in her treatment of the electric chair. Unlike the firing squad, South Carolina has had some experience with the electric chair. Since 1976, the state has electrocuted seven people. Judge Newman found from each of these cases that “South Carolina’s electric chair causes severe damage to the inmate’s body.”

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“There is evidence,” she continued, that “inmates executed by electrocution continue to move, breathe and even scream after the shock is administered…(and) would suffer the experience of being burned alive.”

Finally, noting the important role of social progress in constitutional interpretation, the judge concluded that using the electric chair is “inconsistent with both the concepts of evolving standards of decency and the dignity of man….” It is time, she said, “to retire South Carolina’s electric chair as a violation of… the South Carolina Constitution.”

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Judge Newman’s unusual ruling punctures the long-held belief that this country could find a way of putting people to death that would be safe, reliable, and humane. Over the course of the last century and more, that belief has led us to try one method after another.

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As each new method was rolled out, their proponents made the same claims, namely that the proposed method—whether the firing squad, the electric chair, or most recently lethal injection—would ensure that executions would neither be torturous nor be like being burned alive.

None has filled the bill or lived up to the hype.

Judge Newman’s two-for-one ruling reminds us that turning back the clock to previously discredited methods is a sign of desperation not of progress. We would do well to heed her descriptions of these brutal means of carrying out executions, and better still to realize that there is no method that can make it acceptable for the state to kill its citizens.

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