State has lethal injection drug but justices want more info before restarting executions Four death row inmates can argue legality of new shield law

By Jeffrey Collins
Associated Press

COLUMBIA, S.C. (AP) — South Carolina’s highest court apparently is not ready to allow the state to restart executions after more than 12 years until they hear more arguments about newly obtained lethal injection drugs as well as a recently added firing squad and the old electric chair.

The state Supreme Court set a Feb. 6 date for a hearing over a lawsuit by four death row inmates out of appeals who initially argued dying by electrocution or bullets to the heart is cruel and unusual punishment.

South Carolina has not carried out an execution since 2011 after the state’s supply of lethal injection drugs expired and companies refused to sell them more unless the transaction could be kept secret.

The state passed a shield law earlier this year to hide the identities of drug companies, the names of anyone helping with an execution and the exact procedure followed. In September, prison officials announced they now have the sedative pentobarbital and changed the method of execution from using three drugs to just one.

Tuesday’s order from the Supreme Court allows lawyers for the inmates to argue parts of the shield law are not constitutional as well.

Four inmates initially sued, but since then two more of the 33 prisoners on South Carolina’s death row have run out of normal appeals and have their lives in the balance, according to Justice 360, a group fighting for the inmates and for fairness and transparency in death penalty and other major criminal cases.

South Carolina used to carry out an average of three executions a year. But just 33 inmates are awaiting a death sentence and only three have been sent to death row since the last execution in 2011 as prosecutors face rising costs and more vigorous defenses, choosing to accept guilty pleas and life in prison without parole.

The state asked the Supreme Court to toss out a lower court ruling after a 2022 trial that the electric chair and the firing squad are cruel and unusual punishments. That would allow executions to restart now that an inmate could choose lethal injection since the drugs were available.

Circuit Judge Jocelyn Newman sided with the inmates whose experts testified prisoners would feel terrible pain whether their bodies were “cooking” by 2,000 volts of electricity in the chair built in 1912 or if their hearts were stopped by bullets — assuming the shooters were on target — from the yet to be used firing squad.

South Carolina’s current execution law requires inmates to be sent to the electric chair unless they choose a different method.

The justices in February will allow lawyers for the inmates to make new arguments, including their assertion that pentobarbital compounded and mixed has a shelf life of about 45 days. They want to know if there is a regular supplier for the drug and what guidelines are in place to make sure the 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.

Lawyers for the state had their own experts at the 2022 trial who argued death by firing squad or the electric chair likely would be instantaneous and the condemned would feel no pain.

The state’s attorney also said the inmates agreed at the trial that lethal injection was legally allowed and now are just grasping at flimsy arguments to keep delaying executions.