Sometimes They Come Back: Firing Squad and Electric Chair as Alternatives to Lethal Injection for the Execution of Death Sentences in the United States

On the recent Act of South Carolina Legislative Assembly

South Carolina has joined Mississippi, Oklahoma, and Utah as the fourth U.S. state to allow the execution of death sentences by firing squad. State law now also provides that prisoners can indicate which method of execution they prefer, choosing between the electric chair (the new default option), lethal injection (if available), and the firing squad.

The bill was passed last year but only in recent days the state's Corrections Department has announced that the renovations of the firing squad 'death chamber' have been completed, costing over $ 53,000. Simultaneously, as renovations were concluded, the state’s Attorney General was notified that it was now possible to carry out executions employing the ‘new’ method.

The 2021 provisions are the result of the frustration of the conservative majority in the South Carolina legislative assembly for the ten years passed without any execution of death row inmates. The long hiatus, now common in many other non-abolitionist state jurisdictions across the country, is essentially due to the great difficulties in obtaining the drugs necessary to carry out lethal injections – for decades by far the most commonly used execution method – mainly because of the reluctance of pharmaceutical companies to have some of their barbiturates used in executions.

This grim return to the past in the legislations of a growing number of American states is rooted in the position of the U.S. federal Supreme Court, which has never declared the incompatibility of the death penalty per se with the prohibition enshrined in the Eighth Amendment of the Constitution pertaining to the infliction of cruel and unusual punishments. The Court, in fact, has repeatedly prohibited specific methods of execution that, as implemented, resulted in the concrete imposition of a constitutionally prohibited punishment. The Court also specified that, because capital punishment has been held to be constitutional and some risk of pain is inherent in execution, the Eighth Amendment does not require that a constitutional method of execution be free of any risk of pain. In short, the reasoning of the Supreme Court's case-law can be summarized as follows: as long as the death penalty is constitutionally legitimate on an abstract level, a legitimate method of execution must exist.

And it is precisely because of this position that some states, in order to resume executions blocked for a long time by the impossibility to find anesthetic drugs capable of inducing a ‘merciful’ death, are sadly 'dusting off' – adapting them to the most recent technologies and latest safety protocols – methods of execution such as the firing squad and the electric chair that it was hoped belonged to the past.