Is death for inmates by a firing squad or electric chair a form of “cruel and unusual punishment”? 

That’s the question before South Carolina’s Supreme Court as it is set to hear arguments on February 6, in a case that will shape the future of the death penalty in the state. 

It comes following an uptick of legal and ethical questions surrounding the death penalty following Alabama’s first-ever execution by nitrogen gas of a convicted murderer, 58-year-old Kenneth Eugene Smith, last week. 

The execution generated widespread press attention and made its way to the United States Supreme Court, as the Sun reported. The high court gave the green light to the execution despite lawyers and death penalty opponents’ arguments that the new method of execution was a form of cruel and unusual punishment under the Eighth Amendment. 

The execution received backlash after an eyewitness reporter with the Montgomery Advertiser, Marty Roney, said Smith was “shaking violently with his eyes rolling in the back of his head.” Other journalist witnesses, along with the condemned man’s pastor, offered similar observations of a disturbing and drawn out death marked by convulsions and struggling against restraints.

Alabama’s corrections commissioner, John Hamm, said Smith’s reaction was “expected” and that he appeared to be “holding his breath as long as he could.”

In South Carolina, it’s been more than 12 years since the death penalty was used in the state, after pharmaceutical companies refused to sell the state more of the drugs that were used in lethal injections.

For years, a widely used three-drug combination for executions included a barbiturate to put the inmate to sleep, pancuronium bromide to paralyze the individual, and potassium chloride to stop the heart. 

This combination of drugs had been considered by many to be a humane way to execute convicted criminals, and for similar reasons, barbiturates are the drugs used in veterinary medicine to euthanize animals. Texas, which has the nation’s busiest death chamber, now uses only one massive dose of the barbiturate pentobarbital, and has found a compounding pharmacy to supply it with enough of the drug that it doesn’t need to suspend executions. 

Other states have not, however, been able to procure pentobarbital, and have instead resorted to other sedatives that are less effective, leading to unpleasant scenes at executions.

The debate over the use of the lethal drugs — prompted by death penalty opponents — was what led American and European companies to bar the use of their drugs for executions. 

Oklahoma became the first state to adopt lethal injection as a form of execution in 1977, and in subsequent years the method was adopted as the primary means of execution by all states with the death penalty, and by the federal government, according to the Death Penalty Information Center, which notes that the various methods can use one, two, or three drugs at a time. 

As pharmaceutical companies have restricted drugs used for executions, the center adds, states have resorted to bringing back electrocution, as well as experimenting with new drugs that critics contend have resulted in longer and more painful executions. Some states even bought execution drugs in India, Buzzfeed reported.

Last year, the Palmetto State passed a shield law to hide information and identities of companies or individuals providing the drugs or otherwise involved in the planning of a death sentence, which enabled the state to once again obtain lethal injection drugs. 

In September, South Carolina’s governor, Henry McMaster, announced that the corrections department was prepared to carry out executions again. 

While the state previously used a three-drug method, it revised its policy to the one-drug protocol also used in Texas, the governor’s office said. Following the passage of the shield law, the state was able to secure pentobarbital.

“Justice has been delayed for too long in South Carolina,” Mr. McMaster said. “This filing brings our state one step closer to being able to once again carry out the rule of law and bring grieving families and loved ones the closure they are rightfully owed.”

South Carolina law “specifies the electric chair as the default method of execution,” the governor’s office said, but it gives inmates the options of firing squad or lethal injection. “All three methods outlined in law are now available to carry out a death sentence,” the governor’s statement said in September. 

Yet, after legal challenges to the constitutionality of those methods, a court order put the death penalty on hold in the state, pending review by the South Carolina Supreme Court. 

Mr. McMaster’s office declined to respond to questions from the Sun, but notes that the governor contended in a court filing this month that electrocution and the firing squad are constitutional methods of execution.

“No court has ever required an instant death (or a painless one) for a method to be constitutional,” the governor said. “The method must only not be intended to superadd pain to the death sentence.”

Of the firing squad, the governor’s brief says while “it may not be used as often as other methods,” it has been “a consistently authorized method in various American jurisdictions, so it is not contrary to immemorial usage.”

The United States Supreme Court held in 2019 in Bucklew v. Precythe that while the Eighth Amendment forbids cruel and unusual executions, it “does not guarantee a prisoner a painless death — something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.”

Yet, concerns persist that the firing squad and electric chair methods signal a “return to the brutality of the days of old.”  That’s a warning from a professor of human rights at Birmingham City University, who tells the Sun, “Both of these methods are cruel and will leave significant visible bodily trauma.”

Some groups in South Carolina are campaigning against any form of the death penalty, arguing that any form of execution is “cruel and unusual.” 

The death penalty is “not given to the worst of the worst people,” the executive director of South Carolinians for Alternatives to the Death Penalty, the Reverend Hillary Taylor, tells the Sun. 

Rather, she says, it’s given to people who “cannot afford quality legal representation” and disproportionately affects groups including African Americans, Hispanics, and people with mental illness and learning disabilities.   

“If we want to deter people from murder, from causing violent harm, we would do better at trying to prevent that harm in the first place,” she says, including by investing in secure housing, mental health services, and rehabilitation programs. 

The death penalty “traumatizes victims” of crimes as well, she says.

“The average person on South Carolina’s death row has been on death row for more than 20 years, and I can only imagine what that has been like for people who are promised that this is the way that you will get justice, if you kill this one person,” she says.

Yet, others say that while there are “perfectly good” religious and moral objections to the death penalty, it is both constitutional and backed by the Supreme Court, and when it’s applied appropriately, it acts as a deterrent and form of retribution. 

The death penalty “is the ultimate deterrence for the person who’s executed, because they’re never going to commit another crime,” a senior legal fellow at the Heritage Foundation, Charles Stimson, tells the Sun, adding that those on death row are kept away from society where they could further hurt people.

“When you’ve been a criminal defense attorney, like I have been, and a prosecutor like I have been, and you’re around criminals, and you hear them in interrogation rooms and the rest of it, you know, because they tell you, that they don’t want to do certain crimes and they’re dissuaded from doing certain crimes in states that have the death penalty, because they don’t want to get the needle,” he says. 

As death penalty opponents have worked to limit ways in which states can carry out executions, including campaigns to stop drug companies from sending lethal drugs, they’ve been successful at it, Mr. Stimson says.“The irony is that that has caused states who still want to implement the ultimate punishment, to find alternative methods,” he adds, including last week’s execution in Alabama. 

That battle is likely to persist long after the South Carolina Supreme Court decision, regardless of the outcome, he says of “the long running and continuous struggle” between death penalty opponents and states that will find alternative methods to carry out executions. 

“States are free to take the ultimate punishment off the table,” he says, as some states have done. “Other states have the death penalty authorized under their state law and the governor has followed the will of the people and used the death penalty in appropriate circumstances.”

As long as some states — backed by the will of the people — authorize the death penalty, it will be carried out, and opponents of it will keep fighting to limit it, Mr. Stimson says. “This is an ongoing battle.”