On Monday, the Associated Press ran a headline that reads like something from the end of the 19th century: “New law makes inmates choose electric chair or firing squad.”
The law referenced in the headline is a bill signed by South Carolina Gov. Henry McMaster (R) on Monday, which permits the state to kill death row inmates using a firing squad. South Carolina is now one of four states, along with Mississippi, Oklahoma, and Utah, where the practice is lawful.
Previously, South Carolina law provided that all death row inmates would be executed by lethal injection unless they chose to be killed by an electric chair instead. The new law makes electrocution the default punishment, while allowing inmates to choose to be killed by lethal injection or a firing squad — although they can only choose lethal injection “if it is available at the time of election.”
It’s a brutal solution to a problem that’s faced the minority of states that still execute people for about the past decade: the increasing unavailability of the drugs used to do so.
The Supreme Court briefly abolished the death penalty in 1972. Four years later, in Gregg v. Georgia (1976), the Court allowed death sentences to resume, but only if states had very specific procedural safeguards to help ensure that only people whom the justice system considered the worst criminals were executed. (Though, in practice, courts applying Gregg’s framework are still much more likely to sentence Black defendants and people who cannot afford good legal counsel to die.)
Gregg upheld a Georgia statute allowing prosecutors to argue that a death sentence was warranted because “aggravating circumstances” were present, such as if the offender had a history of serious violent crime. Meanwhile, defense attorneys could argue that “mitigating circumstances” justify a lesser penalty, such as if the defendant was abused as a child or had a mental illness. Defendants could only be sentenced to die if a jury determined that the aggravating factors outweighed the mitigating factors.
Nevertheless, this weighing test is now a keystone of capital trials in the United States, and scholars and advocates who study the death penalty often refer to 1976 as the beginning of the modern legal regime governing death sentences.
Shortly after Gregg, the number of death sentences handed down every year by courts in the United States rose to between 250 and 300, and it hovered in that range for most of the 1980s and 1990s. Then, starting around the year 2000, the number of new death sentences handed down every year began a sharp downward trend, according to the Death Penalty Information Center.