by Chaz Morgan
Introduction
On May 14, 2021, South Carolina Governor Henry McMaster signed Act 43, a law setting electrocution as the default method of execution in South Carolina.[1] The act also allows inmates to alternatively select a firing squad or lethal injection—if the requisite drugs are available—as a means of execution in lieu of the electric chair.[2] Under South Carolina’s previous law, lethal injection was the default method of execution if inmates did not choose the electric chair.[3] However, the companies that produce the drugs necessary for lethal injection began refusing to sell the drugs to South Carolina to subvert its attempts to carry out death sentences.[4] Simultaneously, inmates refused to choose the electric chair, thereby preventing the state from carrying out its sentences.[5]
Act 43’s use of the electric chair as the default method of execution and the addition of the firing squad—a legal execution method in several other states—as an alternative method have raised questions as to whether these methods are cruel and unusual punishment under the United States Constitution’s Eighth Amendment.[6] If they are cruel and unusual, then these methods are prohibited forms of execution.[7] If they are not cruel and unusual, then the new law is constitutional.[8]
I. Cruel and Unusual Punishment Defined
Capital punishment, known colloquially as the death penalty, has existed in the United States since the country’s founding.[9] Once ubiquitous, the punishment evolved into a hotly disputed topic in the second half of the twentieth century and continues to ignite debates.[10] The Eighth Amendment prohibits the use of cruel and unusual punishment.[11] However, this amendment does not prohibit capital punishment itself.[12] Capital punishment is inherently constitutional by implication from the Fifth and Fourteenth Amendments’ fundamental acceptance of capital punishment.[13] For example, the Fifth Amendment creates regulations for someone being “held to answer for a capital . . . crime,” understands that individuals can “be put in jeopardy of life,” and forbids the deprivation of “life . . . without due process of law.”[14] This language means that under the Fifth Amendment, if due process is met, individuals can be deprived of life.[15] Similarly, the Fourteenth Amendment prevents states from depriving “any person of life . . . without due process of law.”[16] Pursuant to these amendments, the Supreme Court of the United States has held that “because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’”[17]
Regarding the use of the death penalty itself as viewed under the Cruel and Unusual Punishment Clause, the Supreme Court interprets the Eighth Amendment based on whether the death penalty is applied in an arbitrary and capricious manner as well as whether the penalty and its implementation comply with society’s evolving standards of decency.[18] Additionally, the Court assesses whether the death penalty comports with the dignity of man.[19] The arbitrary and capricious analysis ensures that there is genuine guidance and consistency as to who receives the death penalty.[20] The evolving standards of decency assessment determines whether the death penalty is appropriate based on objective factors such as the number of states that implement the death penalty as well as the Court’s subjective opinion about the death penalty’s propriety in society.[21] The dignity of man analysis considers whether the penalty is excessive, proportionate, and has a legitimate penological purpose in relation to deterrent and retributive principles.[22] Furthermore, analysis of execution methods includes the pain inflicted by the method.[23]
The Supreme Court has held that “some risk of pain is inherent in any method of execution.”[24] In fact, “the Eighth Amendment does not guarantee . . . a painless death.”[25] Hence, an execution does not have to be painless to be constitutional.[26] Thus, constitutional questions regarding a method’s pain analyze whether the method cruelly enhances the execution by “superadd[ing] terror, pain, or disgrace.”[27] For a successful challenge to the method—both as applied to specific individuals and in reference to a type of method in general—an inmate must demonstrate that there is “a feasible and readily implemented alternative method . . . that would significantly reduce a substantial risk of severe pain.”[28] An inmate must also prove that the state did not have a legitimate penological purpose in failing to implement this alternative method.[29] Otherwise, the method of execution does not constitute cruel and unusual punishment from a pain perspective.[30]
Additionally, states receive “deference” under the Constitution to their chosen methods of execution, and courts are not permitted to invalidate a method simply because they consider an alternative method to be the “best practice” of potentially available alternatives.[31] Instead, “traditionally accepted methods . . . such as hanging, the firing squad, electrocution, and lethal injection” are not automatically unconstitutional merely because a “more humane method” exists.[32] This includes when lethal injection is not available because a state cannot obtain the requisite drugs.[33] Hence, the Supreme Court has never held that a state’s particular execution method is cruel and unusual.[34]
II. Constitutional Assessment of Act 43
South Carolina’s law does not relate to the arbitrary and capricious question, because the law is merely about methods of carrying out capital punishment rather than whether the penalty itself is applied in an arbitrary and capricious manner.[35] Nor is the Court likely to change its ultimate view on capital punishment in relation to evolving standards of decency or its legitimate penological purpose given the consistency with which conservative justices have recognized the constitutionality of the penalty itself and its validity under retributive and deterrent principles.[36] Hence, the primary question regarding South Carolina’s provision of electrocution as the default execution method as well as the addition of the firing squad as an option hinges upon an analysis of the pain involved relative to those particular methods.
A. Bucklew Analysis
According to Lindsey Vann, a member of a nonprofit that provides legal counsel for many death row inmates, Act 43 violates the Cruel and Unusual Punishment Clause based on cruelty due to pain inflicted on inmates because the electric chair and firing squad “previously were replaced by lethal injection, which is considered more humane.”[37] However, characterizing the electric chair and firing squad as inappropriate because they are allegedly “less humane” than lethal injection distorts the issue from the actual constitutional requirements.[38] Bucklew v. Precythe explicitly details that electrocution and the firing squad can still be constitutional even if a method that may be considered more humane exists, and the majority includes the unavailability of lethal injection drugs as an example of when this is the case.[39]
Generally, claims of inhumanity for these methods derive primarily from policy positions advocating for the elimination of capital punishment itself or, in some cases, for an administration of the penalty in a pain-free manner.[40] But the standard for constitutional executions is explicitly not a pain-free death; it is the cruel superaddition of pain.[41] Although South Carolina has not executed an inmate via the electric chair in thirteen years and previously did not provide for a firing squad, this history has no bearing on whether the methods themselves cruelly superadd pain.[42]
Additionally, South Carolina passed Act 43 because lethal injection was essentially unavailable due to the market conditions surrounding the required drugs.[43] Hence, the resolution of whether Act 43 is constitutional has significant implications for other states that have also been unable to carry out their capital sentences due to an unavailability of lethal injection drugs.[44] If Act 43 is constitutional, it is possible that many of these states would adopt similar legislation. Under Bucklew, lethal injection is no longer feasible or readily implemented because pharmaceutical companies refuse to sell the necessary drugs and inmates—who know South Carolina cannot obtain the drugs—intentionally choose lethal injection as their execution method to effectively prevent South Carolina from carrying out its capital sentences.[45] Moreover, South Carolina has a legitimate penological purpose in bypassing the lethal injection method—namely, to carry out its lawfully imposed capital sentences.[46] Thus, even if lethal injection were to “significantly reduce a substantial risk of severe pain”[47]—a highly debated proposition[48]—a requirement to make states use lethal injection over electrocution or firing squads profoundly fails the Bucklew analysis.[49]
B. Justice Amy Coney Barrett’s Supreme Court Confirmation
On another note, the recent addition of Justice Amy Coney Barrett to the Supreme Court has created questions of whether her presence will shift the Court’s view of the death penalty in cases concerning issues like South Carolina’s Act 43.[50] Although Bucklew’s majority consisted of five justices, Justice Barrett replaced Justice Ginsburg, who sided with the dissent.[51] Accordingly, even if Justice Barrett ultimately opposes capital punishment while on the bench, she alone would not endanger Bucklew or prior capital punishment precedent.[52] Furthermore, based on Justice Barrett’s past statements, rulings, and legal work, even though her future rulings on capital punishment cases as a Supreme Court justice are still a mystery, it is likely that she will uphold the penalty’s constitutionality as well as Bucklew’s reasoning if a challenge arises.[53]
For example, Justice Barrett testified in her Seventh Circuit confirmation hearing that she would not facilitate an execution order as a trial judge but would still uphold constitutional capital sentences while sitting on an appellate court, regardless of her personal beliefs regarding capital punishment.[54] She subsequently joined a majority on the Seventh Circuit in allowing the federal government to execute Daniel Lewis Lee in July 2020.[55] She also worked on capital cases while clerking for Justice Antonin Scalia, an advocate for capital punishment, and has commented on Justice Scalia’s significant impact on her legal philosophy.[56] Justice Scalia’s textualist philosophy recognized the inherent constitutionality of capital punishment per the Constitution’s very words, even if a justice personally disagrees with the penalty’s actual use.[57] Consequently, this approach likely contributes to Justice Barrett’s willingness to uphold capital punishment’s constitutionality in theory and in practice at the appellate level.[58]
Conclusion
Act 43 has created an intriguing discussion since it has revitalized the use of the electric chair—and potentially the firing squad—in lieu of the more common lethal injection.[59] From a legal perspective, Bucklew staunchly supports capital punishment’s constitutionality in the abstract as well as in relation to specific methods of execution that states implement, including when lethal injection is unavailable due to the unobtainability of the requisite drugs.[60] Moreover, Justice Barrett’s addition to the Court will likely see future capital punishment decisions maintain the support of six rather than five justices.[61] Accordingly, South Carolina’s Act 43 is constitutional and could inspire additional states to pass similar legislation.
[1] Jeffrey Collins, South Carolina Law Makes Death Row Inmates Pick: Firing Squad or Electric Chair?, NPR (May 17, 2021), https://www.npr.org/2021/05/17/997488183/south-carolina-law-makes-death-row-inmates-pick-firing-squad-or-electric-chair [https://perma.cc/R8MC-MQFE]; S.C. Code Ann. § 24-3-530 (2021).
[2] S.C. Code Ann. § 24-3-530.
[3] Collins, supra note 1.
[4] Id.
[5] Id.
[6] See Collins, supra note 1 (Utah, Oklahoma, and Mississippi currently permit the firing squad for executions); see generally U.S. Const. amend. VIII.
[7] U.S. Const. amend. VIII.
[8] Id.
[9] See Furman v. Georgia, 408 U.S. 238, 380 (1972) (Burger, C.J., dissenting).
[10] See, e.g., Furman, 408 U.S. at 286 (Brennan, J., concurring); Bucklew v. Precythe, 139 S. Ct. 1112 (2019).
[11] U.S. Const. amend. VIII.
[12] Bucklew, 139 S. Ct. at 1125.
[13] See U.S. Const. amend. V; see id. amend. XIV; Glossip v. Gross, 576 U.S. 863, 894 (2015) (Scalia, J., concurring).
[14] U.S. Const. amend. V (emphasis added).
[15] See, e.g., Furman, 408 U.S. at 380 (Burger, C.J., dissenting).
[16] U.S. Const. amend. XIV (emphasis added).
[17] Glossip, 576 U.S. at 869 (majority opinion) (citing Baze v. Rees, 553 U.S. 35, 47 (2008)).
[18] Gregg v. Georgia, 428 U.S. 153, 173, 188–89 (1976).
[19] Id. at 173.
[20] Id. at 188–89.
[21] See id. at 173; see Furman v. Georgia, 408 U.S. 238, 327 (1972) (Marshall, J., concurring).
[22] Gregg, 428 U.S. at 173, 182–83.
[23] Bucklew v. Precythe, 139 S. Ct. 1112, 1124–25 (2019).
[24] Glossip v. Gross, 576 U.S. 863, 869 (2015).
[25] Bucklew, 139 S. Ct. at 1124.
[26] If the risk of pain is acceptable, some resulting pain is thereby acceptable. See Glossip, 576 U.S. at 869.
[27] Bucklew, 139 S. Ct. at 1124–25.
[28] Id. at 1125–26.
[29] Id. at 1125.
[30] Id.
[31] Id. (quoting Baze v. Rees, 553 U.S. 35, 51–52, nn.2–3 (2008)).
[32] See id.
[33] Id.
[34] Id. at 1124. In spite of the Court’s consistency on this issue, there have been and likely will continue to be legal challenges to states’ execution methods. Bucklew v. Precythe itself is a recent example. See generally id. at 1126.
[35] See generally S.C. Code Ann. § 24-3-530 (2021).
[36] See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 447, 455 (2008) (Alito, J., dissenting); Enmund v. Florida, 458 U.S. 782, 798–01 (1982) (analyzing the proper application of the death penalty based on retribution and deterrence).
[37] Collins, supra note 1.
[38] Id.; see generally Bucklew, 139 S. Ct. at 1124–26.
[39] Bucklew, 139 S. Ct. at 1125.
[40] See generally The Case Against the Death Penalty, ACLU, https://www.aclu.org/other/case-against-death-penalty [https://perma.cc/D2HC-56E5] (last visited Oct. 30, 2021).
[41] Bucklew, 139 S. Ct. at 1124–25.
[42] Caitlin Herrington, What we know: History of the electric chair used for the death penalty in South Carolina, Greenville News, https://www.greenvilleonline.com/story/news/2021/06/15/history-electric-chair-use-south-carolina-executions/7622713002/ [https://perma.cc/HYB5-DGZS] (last updated June 15, 2021); Collins, supra note 1; see Bucklew, 139 S. Ct. at 1124–25.
[43] Collins, supra note 1.
[44] See generally Laurel Wamsley, With Lethal Injections Harder to Come By, Some States Are Turning to Firing Squads, NPR (May 19, 2021), https://www.npr.org/2021/05/19/997632625/with-lethal-injections-harder-to-come-by-some-states-are-turning-to-firing-squad [https://perma.cc/7KM5-NM9P].
[45] See Collins, supra note 1.
[46] See generally id.; see generally Bucklew, 139 S. Ct. at 1124–25.
[47] See Bucklew, 139 S. Ct. at 1125.
[48] See, e.g., Shannon Smith, Electric chair vs. lethal injection: Which is the better way to die?, WBIR, https://www.wbir.com/article/news/crime/51-1688180e-1f14-4ebd-a703-901b3a36daac [https://perma.cc/NW5S-S8XE] (last updated Dec. 17, 2019).
[49] See generally Bucklew, 139 S. Ct. at 1125.
[50] See Annika Russell, Supreme Court Nominee Judge Amy Coney Barrett and the Death Penalty, Am. Bar Ass’n (Oct. 11, 2020), https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/amy-coney-barrett-and-the-death-penalty/ [https://perma.cc/36F8-S5ZZ].
[51] See generally id.; Bucklew, 139 S. Ct. at 1136 (Breyer, J., dissenting).
[52] See generally Bucklew, 139 S. Ct. at 1136.
[53] See Russell, supra note 50; see Robert Barnes, Supreme Court continues capital punishment trend with Barrett on the bench, Wash. Post (Nov. 20, 2020), https://www.washingtonpost.com/politics/courts_law/amy-coney-barrett-orlando-hall-execution/2020/11/20/ba28d3c6-2b47-11eb-9b14-ad872157ebc9_story.html [https://perma.cc/XR79-5KNN].
[54] Russell, supra note 50.
[55] See id.
[56] Barnes, supra note 53; Russell, supra note 50.
[57] See Russell, supra note 50; Glossip v. Gross, 576 U.S. 863, 894 (2015) (Scalia, J., concurring) (“It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”).
[58] See Russell, supra note 50.
[59] S.C. Code Ann. § 24-3-530 (2021).
[60] Bucklew v. Precythe, 139 S. Ct. 1112, 1124–25 (2019) (majority opinion).
[61] Russell, supra note 50.