South Carolina Gov. Henry McMaster signed a bill into law Friday officially bringing back the electric chair and introducing the firing squad to perform executions of death row inmates.
McMaster signed the bill into law two days after the Senate voted to agree on small changes the House made to the legislation.
Conservative lawmakers pushed the execution legislation forward this year in response to a years-long nationwide reluctance on the part of drug companies to sell their products to states looking to use them in executions. As a result, South Carolina has not been able to obtain the drugs to administer a lethal injection in years.
Under previous South Carolina law, the lethal injection was the default mode of execution, and if an inmate selected to die via the drug cocktail, the state could not kill them using another method. That caused three inmates to apply for and receive stays of execution.
Under the new law, death row inmates will be asked to choose whether they want to die by electric chair, firing squad or lethal injection. However, if the drugs needed for a lethal injection execution are unavailable, the inmates would be asked to choose another method. If they choose none, they would be executed by electrocution.
There are a few things South Carolina will need to sort out before executions can resume.
While the S.C. Department of Corrections is wholly prepared to carry out an execution by electric chair, it would still need to determine how executions by firing squad would work in South Carolina, according to department spokesperson Chrysti Shain.
With the electric chair, Shain said the department has a team that “continually trains to perform these duties,” and the chair is routinely checked to make sure it’s operational.
South Carolina has never used the firing squad as a method of execution and, therefore, has no system in place for carrying out such executions.
Now that the bill has been signed into law, the Department of Corrections will write a policy and create protocols for how to carry out an execution by firing squad, Shain said.
“We would look for guidance from other states and the courts as to what has been deemed constitutional,” Shain said.
Shain said there is currently not a timeline for when the department expects to be able to carry out an execution using this method.
The Attorney General’s Office anticipates needing to issue new notices of executions to the inmates, spokesperson Robert Kittle said. Those notices will set the executions back into motion.
After the notices are received, the executions must be scheduled for the fourth Friday after receipt, Kittle said.
That timeline could change, though, if the bill is challenged on its constitutional merits in the courts.
During debate over the bill on the House floor, S.C. Rep. Bamberg, an attorney, questioned whether changing the penalties someone could face after they have already been sentenced is constitutional.
“With the law as it was written at the time, these individuals made a decision: do I plead guilty or take, maybe, a life sentence ... or do I go to trial and risk death?” Bamberg, D-Bamberg, said on the floor. “And if I do go to trial, what kind of death am I facing?”
Bamberg argued that lawyers and the inmates may have made different decisions at trial had they known the only methods of execution that would be available to them would have been the electric chair and the firing squad. He added that he anticipates constitutional litigation over the bill.
“It’s not right,” said Bamberg, who fought and ultimately failed to remove the retroactive nature of the bill. “It’s not constitutional. We don’t need to do it.”
“We cannot change the rules of the game after the game has been played and their is a winner and a loser,” he added.
In the Senate, Republican S.C. Sen. Greg Hembree, of Horry County, conceded that the bill will likely draw lawsuits.
“If we pass the bill, the very first execution we have is going to be litigated probably to the United States Supreme Court,” Hembree said on the floor Wednesday.