Legislators in South Carolina, Montana Seek to Change Execution Methods to Allow Executions to Resume

Frustrated by the inabil­i­ty to put pris­on­ers to death, leg­is­la­tors in two states are seek­ing to jump­start the exe­cu­tion process by chang­ing the laws that gov­ern how exe­cu­tions may be con­duct­ed. After gain­ing lit­tle trac­tion in pri­or leg­isla­tive ses­sions, a bill to make elec­tro­cu­tion the default method of exe­cu­tion is mov­ing for­ward in South Carolina, which is approach­ing ten years since its last exe­cu­tion. In Montana, after a court ruled in 2015 that the drugs in the state’s pro­posed exe­cu­tion pro­to­col did not com­ply with Montana’s death penal­ty statute, leg­is­la­tors have pro­posed a mea­sure to broad­en the types of drugs that can be used in lethal injections.

The South Carolina bill, which has advanced out of com­mit­tee in both cham­bers of the leg­is­la­ture, would allow the state to car­ry out exe­cu­tions in the elec­tric chair if lethal-injec­tion drugs are not avail­able. South Carolina law cur­rent­ly per­mits pris­on­ers to des­ig­nate either lethal injec­tion or elec­tric chair as the man­ner of exe­cu­tion, but lethal injec­tion is the default method if a pris­on­er declines to make an elec­tion. Prisoners can­not be exe­cut­ed by elec­tro­cu­tion unless they have express­ly select­ed that method. 

The Montana leg­is­la­tion would amend the state’s exe­cu­tion law to remove the require­ment that the state car­ry out exe­cu­tions using an ​“ultra-fast-act­ing bar­bi­tu­rate.” Instead, it would per­mit exe­cu­tion by ​“an intra­venous injec­tion of a sub­stance or sub­stances in a lethal quan­ti­ty suf­fi­cient to cause death.” The pro­pos­al comes in the wake of a state court deci­sion that pen­to­bar­bi­tal, the state’s pro­posed exe­cu­tion drug, was not an ​“ultra-fast-act­ing barbiturate.”

Proponents of the South Carolina mea­sure say that the bill is nec­es­sary because two exe­cu­tions have already been delayed by the unavail­abil­i­ty of exe­cu­tion drugs. On February 4, 2021, the South Carolina Supreme Court vacat­ed the exe­cu­tion notice that had sched­uled Brad Sigmon​’s exe­cu­tion for February 12. The court’s order stat­ed that ​“the exe­cu­tion is cur­rent­ly impos­si­ble” because the Department of Corrections ​“will not be able to obtain the required drugs pri­or to the sched­uled date of exe­cu­tion.” The court direct­ed the clerk ​“not to issue anoth­er exe­cu­tion notice in this case until the State noti­fies this Court that the Department of Corrections has the abil­i­ty to car­ry out the exe­cu­tion by lethal injec­tion, that the peti­tion­er has made an elec­tion to be elec­tro­cut­ed, or that there has been some change in the law which will allow the exe­cu­tion to take place.”

“We have a law­ful statute in South Carolina that can­not be car­ried out,” said Rep. Weston Newton (R – Beaufort). Those opposed to the bill argued that South Carolina’s death penal­ty is applied unfair­ly and should not be car­ried out. Rep. Neal Collins (R – Easley), the one Republican leg­is­la­tor who vot­ed against the bill, described the racial and geo­graph­ic dis­par­i­ties in the use of the death penal­ty. ​“You just can’t get past these sta­tis­tics,” he said. ​“At best, what we’re talk­ing about is send­ing a guilty per­son (to death) that doesn’t have the same abil­i­ty, who does not have the same due process rights across the state.” 

Rep. Justin Bamberg (D – Bamberg) argued that the risk of exe­cut­ing the inno­cent is too great, pro­vid­ing the case of George Stinney as evi­dence. Stinney, a Black 14-year-old, was exe­cut­ed in 1944 on charges that he had killed two white girls. He was exon­er­at­ed 70 years lat­er. ​“It was said that the death penal­ty exists for the guilty, and in the­o­ry it’s true,” Bamberg said. ​“But we all know that the crim­i­nal jus­tice sys­tem is far too imper­fect for us to impute a death.”

Montana Attorney General Austin Knudsen, a sup­port­er of the bill, said that Montana is the only state to require exe­cu­tion with an ultra-fast-act­ing bar­bi­tu­rate. ​“This case is not about the death penal­ty,” he said. ​“We have the death penal­ty in Montana. What the bill you have in front of you today is about is fix­ing a tech­ni­cal prob­lem that has arisen.” 

Speaking in oppo­si­tion to the bill, Sam Forstag of the Montana ACLU warned about the pos­si­bil­i­ty of state over­reach. ​“It is hard to rec­on­cile grant­i­ng the state such a broad pre­rog­a­tive with what can be done to our cit­i­zens,” said Forstag. ​“The func­tion­al result of this change, if it were to pro­ceed, is state author­i­ty to inject peo­ple with what­ev­er drug hasn’t yet been pre­clud­ed in an ever-shift­ing scram­ble. This would require us to rope in civ­il ser­vants who work to keep us safe and ask them to car­ry out an act that mir­rors the more griev­ous crimes per­ceiv­able. We should not do this.”

Rep. Dennis Lenz (R – Billings), assert­ed that the state would not use inhu­mane meth­ods to exe­cute pris­on­ers sim­ply because the leg­is­la­tion was broad­ly writ­ten. ​“I don’t think any­one at the prison is going to be grab­bing a jug of anti-freeze and killing some­body with it,” he said.