As Trial in South Carolina Execution-Method Challenge Begins, Review of State’s Death Penalty Reveals System that is Biased, Arbitrary, and Error-Prone

As the tri­al chal­leng­ing South Carolina​’s exe­cu­tion meth­ods began on August 1, 2022, a review of the state’s death penal­ty by the Greenville News revealed a pat­tern of dis­crim­i­na­tion, geo­graph­ic arbi­trari­ness, and high error rates in the imple­men­ta­tion of the pun­ish­ment. In a two-part exam­i­na­tion, reporter Kathryn Casteel ana­lyzed racial and coun­ty demo­graph­ics on death row, rever­sal rates in cap­i­tal cas­es, and the tim­ing of death sen­tences to pro­vide con­text for the state’s efforts to insti­tute the elec­tric chair and fir­ing squad as its pri­ma­ry execution methods.

Four of South Carolina’s 35 death-row pris­on­ers are suing the state to block a law that would force them to choose between elec­tro­cu­tion and fir­ing squad as meth­ods of exe­cu­tion. One of the men, Richard Moore, wrote in an April legal fil­ing, ​“I believe this elec­tion is forc­ing me to choose between two uncon­sti­tu­tion­al meth­ods of exe­cu­tion.” Executions are on hold while a court hears the prisoner’s case, but Casteel points out that the 31 men not involved in the suit are all inel­i­gi­ble for exe­cu­tion for var­i­ous pro­ce­dur­al rea­sons. Thirteen pris­on­ers are in the post-con­vic­tion stage of appeals, four have had their death sen­tences vacat­ed, six cas­es are in fed­er­al appeals, three are either incom­pe­tent to be exe­cut­ed or incom­pe­tent to stand tri­al, and the remain­ing five have some oth­er legal bar­ri­er to execution.

The state’s high rates of error and mis­con­duct in impos­ing the death penal­ty under­score the impor­tance of the pris­on­ers’ pend­ing appeals. ​“More than 60% of cas­es that have gone into the South Carolina death penal­ty process have even­tu­al­ly been reversed, so the appel­late courts are say­ing that the tri­al courts are get­ting this wrong quite a lot of the time,” said Madalyn Wasilczuk, assis­tant pro­fes­sor at the University of South Carolina School of Law. ​“It’s one real­ly impor­tant rea­son why we need to have this review.” In par­tic­u­lar, pros­e­cu­to­r­i­al mis­con­duct has con­tributed to 29 out of 81 death-penal­ty rever­sals, accord­ing to a 2016 study by Cornell Law pro­fes­sor John Blume, for­mer direc­tor of the South Carolina Death Penalty Resource Center, and Justice 360’s exec­u­tive direc­tor, Lindsey Vann.

A hand­ful of pros­e­cu­tors in the Palmetto State have been respon­si­ble for a dis­pro­por­tion­ate num­ber of death sen­tences. Just four pros­e­cu­tors sent 14 of the 35 cur­rent pris­on­ers to death row. A sin­gle pros­e­cu­tor, Donnie Myers, secured 39 death sen­tences against 28 defen­dants over the course of four decades. Courts found mis­con­duct in at least 18 of his cas­es. In one case, involv­ing an infant vic­tim, he staged a funer­al pro­ces­sion, placed a black shroud over a crib, and warned the jury that, with­out a death sen­tence, it would be ​“open sea­son on babies in Lexington County.” The South Carolina Supreme Court reversed the sen­tence, call­ing his argu­ment ​“over­ly zealous.”

Racial bias is also evi­dent in the state’s use of the death penal­ty, which val­ues white lives more than Black lives and dis­pro­por­tion­al­ly sub­jects defen­dants of col­or to cap­i­tal sanc­tions. In the past fifty years, the death penal­ty has been over­whelm­ing­ly reserved for cas­es with white vic­tims (80.9%), while just 16.9% of South Carolina death sen­tences have been imposed for the mur­der of a Black per­son. While the state’s pop­u­la­tion is only about one-quar­ter Black (27%), near­ly half (46.9%) of defen­dants sen­tenced to death since 1972 have been Black. 

Blume said that bias has his­tor­i­cal roots: ​“That’s a pat­tern that per­sist­ed since the begin­ning of the mod­ern era, and that has also per­sist­ed in the pre-mod­ern era, through­out the his­to­ry of the death penal­ty in South Carolina from colo­nial times for­ward. It was almost all exclu­sive­ly reserved for peo­ple that kill white peo­ple, and pri­mar­i­ly Black peo­ple that kill white people.”

Casteel’s review also high­light­ed the impor­tance of defense rep­re­sen­ta­tion. The vast major­i­ty of death sen­tences in South Carolina were imposed before the state cre­at­ed an office devot­ed to cap­i­tal defense. Since 2010, just three peo­ple have been sen­tenced to death. ​“There are very few peo­ple com­ing on the row,” said Blume. ​“Some of these peo­ple are going to win in their appeal, or some of them aren’t going to be exe­cut­ed because they’re incom­pe­tent. Probably some of them will be exe­cut­ed. But even­tu­al­ly I think the num­ber’s going to become so small, at some point some­body’s gonna go, ​‘Why are we doing this?’”