Lawyers for six death row inmates out of appeals in South Carolina are asking the state Supreme Court to give full consideration to the state's new lethal injection rules as well as the electric chair and firing squad before restarting executions after an unintended 12-year pause.
The inmates said judges should decide now if the state's new lethal injection protocol using just the sedative pentobarbital as well as killing prisoners by electrocution or shots fired into the heart do not violate the Constitution's ban on cruel and unusual punishments.
“The next set of potential plaintiffs are already in line, and more will follow. Now is the time to finally resolve these questions,” attorneys for the condemned inmates wrote in court papers filed Friday.
Lawyers for the prisons and Gov. Henry McMaster asked the Supreme Court on Sept. 19, the same day they announced the lethal injection drugs were available, to toss out a lower court ruling that the electric chair and firing squad were cruel and let executions start as soon as possible.
Prison officials said they were able to obtain the lethal injection drug because the General Assembly passing a shield law in May allowing the state to keep secret the procedure for executions and the suppliers of drugs or other items used.
South Carolina had previously used a three-drug combination and couldn't obtain any more after the last batch expired 10 years ago without keeping the supplier secret, halting executions in a state that once had one of the busiest death chambers in the country.
The shield law means South Carolina doesn’t have to reveal its protocols for lethal injection, but Corrections Director Bryan Stirling said it is essentially identical to how the federal government and several other states use pentobarbital alone to kill inmates.
But the lawyers for the South Carolina prisoners said both the inmates waiting to die and the justices can't just take Stirling's word and need to be able to see and review the new rules so they can decide if lethal injections are reliable and effective.
Pentobarbital compounded and mixed has a shelf life of about 45 days, so the lawyers for the inmates want to know if there is a regular supplier and what guidelines are in place to make sure the drug's potency is right.
Too weak, and inmates may suffer without dying. Too strong, and the drug molecules can form tiny clumps that would cause intense pain when injected, according to court papers.
In his sworn statement after obtaining the sedative, Stirling said he and his employees made more than 1,300 contacts to buy or obtain lethal injection drugs.
Having to search so hard and so long “necessarily raises concerns about the quality and efficacy of the drugs,” the inmates' argument said.
Also in question is a lower court ruling after a summer 2022 trial that the electric chair and lethal injection are cruel and unusual punishments.
The judge sided with the inmates' attorneys who said prisoners would feel terrible pain whether their bodies were “cooking” by electricity or had their hearts stopped by marksman’s bullet — assuming they are on target.
Attorneys for the state countered with their own experts who said death by the yet-to-be-used firing squad or the rarely-used-this-century electric chair would be instantaneous and the condemned would not feeling any pain.
"Respondents face selecting blindly between a method of execution of uncertain efficacy (lethal injection) and two antiquated methods that the circuit court has deemed unconstitutional due to the pain and damage each method is certain to cause," the lawyers for the inmates wrote Friday.
South Carolina has 34 inmates on its death row. The state last killed someone on death row in May 2011.
