The government of South Carolina told the state's top court Tuesday that executing death row prisoners by electrocution or firing squad does not violate the state's constitution because there isn't sufficient evidence that those methods are either too painful, gruesome or out of step with what society at large accepts.

The attorney for the state, Grayson Lambert, told the South Carolina Supreme Court's five justices that the plaintiffs — four inmates condemned to die in the state — did not meet their burden of proof in showing those execution methods violate the state's constitution prohibition against "cruel or unusual or corporal punishment."

Arguing on behalf of the South Carolina Department of Corrections and Gov. Henry McMaster, Lambert said even the expert witnesses who testified for the four inmates at a nonjury trial held in August 2022 could not say with certainty whether a person who's electrocuted is rendered unconscious by the first discharges of electric current in the body, or whether a person dies instantly after bullets pierce the heart.

"Does the current immediately render you unconscious or not? … We simply don't know," Lambert quoted Dr. Jonathan Arden, a witness called by the prisoners, as saying. Meanwhile, Lambert said, the firing squad is an effective method to bring about a person's "swift death."

"Yes, it is bloody — that's the result of a gunshot," he said.

Lambert asked the high court to reverse a September 2022 ruling by a state trial court that found electrocution and a firing squad impermissible, arguing the lower court "applied the wrong legal framework."

Lambert said the state trial court — the South Carolina Court of Common Pleas in Richland County — erred in using a novel legal test that requires a method of execution to cause a painless or instantaneous death to be constitutional.

"I am not aware of a single court across the country that has ever held such," he said, adding that even the U.S. Supreme Court has held that the U.S. Constitution does not guarantee a painless death. Lambert also said the state trial court was wrong in shifting onto the state the burden of proof that an execution method is permissible under that standard.

The case before the state high court centers on South Carolina's death penalty statute, which in 2021 was amended to make the electric chair the default execution method and added the firing squad option. Lethal injection continues to be permissible under the statute.

South Carolina argued the law aims to solve yearslong issues with procuring the drugs necessary for lethal injection, which the state has used since 1995. The last execution by lethal injection in the state was carried out in 2011. Since then, South Carolina has been unable to obtain the drugs it needed to enforce the death penalty. There are currently 32 people on death row in South Carolina.

Under the law, if an inmate does not make a choice within 14 days of their scheduled execution, or if lethal injection and the firing squad are not available, electrocution is the default method.

Freddie Owens, Gary Terry, Brad Keith Sigmon and Richard Bernard Moore — all of them given the death penalty for murder — alleged in a suit that those additional methods violate state constitutional prohibitions.

Legal arguments at trial focused largely on whether a person is conscious at the moment electric charge flows through the body during an electrocution.

Arden, a forensic pathologist who reviewed more than 80 autopsy reports from electric chair executions across the United States, testified during the trial that even when high-voltage current is unleashed, a human heart can resume pumping oxygenated blood, all of which prolongs the life and the suffering of a person.

In the autopsies he reviewed, Arden said he observed severe burning, charring and thermal damage "which is the equivalent of cooking," according to a brief filed by the plaintiff inmates' attorneys Oct. 10, 2022.

A second witness, Dr. John P. Wikswo Jr., also a forensic pathologist, testified that most people executed are unlikely to die after the first two shocks — administered at 2,000 and 1,000 volts, respectively, for a total of 12.5 seconds, as mandated by state protocol.

Wikswo also said that because the skull is more resistant than the skin, muscles and the connective tissue around the head, not enough electric charge might enter the brain, which means that the inmate remains alive and able to feel the extreme muscle contractions occurring during the electrocution.

As for the firing squad method, the experts testified there is a brief period of consciousness in which the person being shot feels the impact of multiple rifle rounds simultaneously, most notably the fracturing of bones.

Arden said a person is likely to remain conscious for about 15 seconds after being shot because although bullets destroy the heart, causing blood circulation to stop, the brain is still able to extract oxygen from the blood remaining in its vessels.

In her ruling, Circuit Judge Jocelyn Newman ultimately found the testimony compelling and said the two methods cannot be reconciled with the state's constitution.

Arguing for the prisoners on Tuesday, John H. Blume III of the Cornell Law School Death Penalty Project told the justices that the effect of high-voltage current on the body is unpredictable and that there is a high risk that death by electrocution is neither immediate nor painful.

"Not enough [current] is going to enter the brain in many cases to render the person insensate," Blume said. "Because of the inherently unpredictable nature of electrocution and the occurrence of human error, an intolerably high percentage of the executions are going to cause extreme pain and suffering."

The arguments drew comparison and distinctions between the state and federal constitutions. While the South Carolina Constitution says the state cannot impose punishment that is either cruel or unusual, the U.S. Constitution says the punishment must be both in order to be banned — a higher standard.

In addition, the state constitution's use of the word "corporal" implies that an execution cannot result in the mutilation of a person's body.

"There is no need to return to antiquated execution methods with a history of failure like judicial electrocution or adopt the firing squad, which has very rarely been used in civilian executions and which mutilates the body," Blume told Law360 in an email on Tuesday after the hearing. "Both are inconsistent with the South Carolina Constitution, which prohibits punishments which are cruel, or corporal or unusual.

While it's hard to guess what the court will ultimately rule, it is noteworthy that a large portion of the arguments was used to discuss the state's lethal injection protocols, which were not within the scope of the case and not at the center of the lower court's ruling. Nearly all five justices asked questions about a state law shielding those protocols from public scrutiny.

Currently, 27 states permit capital punishment. Six of them have suspended execution through executive order. Most states with death penalty statutes have not carried out executions in years. According to a year-end report released in December by the Death Penalty Information Center, only five states executed people in 2023.

In 2001 and 2008, respectively, top courts in Georgia and Nebraska found that death by electrocution violated their state constitutions. Meanwhile, in the past 50 years, only Utah has permitted the use of a firing squad as an execution method. South Carolina adopted a firing squad protocol in 2022, but it has not used it yet in an execution.

Robin M. Maher, executive director of the Death Penalty Information Center, told Law360 a state government should have the burden to convince a court that a method of execution is constitutional. But she notes that the law says it is up to a defendant who is about to be executed to prove it is not constitutional.

"If a state is going to choose to use the death penalty, and then it's going to choose a particular method of execution, it should only use a method that is constitutional," Maher said.

The four plaintiffs at the center of the case have not argued that the lethal injection is constitutional, and they said it is the only execution method they consider permissible.

Thomas Limehouse, the governor's office's chief legal counsel, said in a statement Tuesday afternoon that the state is "prepared to carry out executions by all three statutorily approved methods, including the method the condemned inmates claim to prefer."

"This case is not a debate over capital punishment," Limehouse said. "Rather, this case is about the executive branch's constitutional duty to enforce the law, which means not only carrying out capital punishment but also giving effect to specific convictions and death sentences imposed by juries."

The death row inmates are represented by John H. Blume III of the Cornell Law School Death Penalty Project.

The state of South Carolina is represented by Grayson Lambert of the Office of South Carolina Gov. Henry McMaster.

The case is Freddie Eugene Owens et al. v. Bryan P. Stirling et al., case number 2022-001280, in the Supreme Court of South Carolina.

--Editing by Lakshna Mehta.