South Carolina Supreme Court to Hear Argument One Month Sooner on Constitutionality of Electric Chair and Firing Squad

The South Carolina Supreme Court will hear argu­ment one month soon­er on the state’s appeal of a tri­al court rul­ing that declared two of its statu­to­ri­ly meth­ods of exe­cu­tion — death by elec­tric chair and fir­ing squad — unconstitutional. 

The argu­ment will now be held on December 13, 2022 in the Supreme Court Courtroom in Columbia. Argument ini­tial­ly had been set for January 12, 2023 at Coastal Carolina University. The court did not pro­vide any expla­na­tion for the scheduling change.

The appeal is part of a law­suit brought by four death-row pris­on­ers, Freddie Owens, Brad Sigmon, Gary Terry, and Richard Moore that chal­lenged the state’s method-of-exe­cu­tion statute as applied in their cas­es. They argued that the South Carolina Department of Corrections (SCDC) had vio­lat­ed their statu­to­ry right to des­ig­nate lethal injec­tion as their method of exe­cu­tion by lim­it­ing their choice to the statu­to­ry alter­na­tive meth­ods of elec­tro­cu­tion or the firing squad. 

Richland County Court of Common Pleas Judge Jocelyn Newman issued a 38-page rul­ing on September 6, 2022 sid­ing with the pris­on­ers. Judge Newman’s deci­sion struck down the state’s 2021 method-of-exe­cu­tion statute on multiple grounds.

Judge Newman wrote that the state’s General Assembly ​“ignored advances in sci­en­tif­ic research and evolv­ing stan­dards of human­i­ty and decen­cy” when it made death by elec­tric chair the state’s default method of exe­cu­tion, with fir­ing squad as a sec­ond alter­na­tive to lethal injec­tion. The state sought to exe­cute the pris­on­ers by elec­tro­cu­tion or fir­ing squad, assert­ing that it was unable to obtain lethal-injec­tion chem­i­cals. Lawyers for SCDC pre­sent­ed no evi­dence regard­ing its efforts to obtain lethal-injec­tion drugs, argu­ing instead that the pris­on­ers bore the bur­den of prov­ing that the drugs were available.

The state has not car­ried out an exe­cu­tion since 2011, which SCDC and Governor Henry McMaster have said is because the state can­not find a sup­pli­er will­ing to sell them lethal injec­tion drugs. State pros­e­cu­tors have obtained three sets of death war­rants in unsuc­cess­ful efforts to restart the execution process. 

The first set of war­rants sched­uled exe­cu­tions by lethal injec­tion and were halt­ed when SCDC admit­ted that it did not have drugs on hand to car­ry them out. The sec­ond set of death war­rants sched­uled exe­cu­tions by elec­tric chair but were halt­ed for non-com­pli­ance with state law when SCDC admit­ted that it did not have a pro­to­col in place to car­ry out exe­cu­tions by fir­ing squad, deny­ing the pris­on­ers the right to choose between exe­cu­tion meth­ods. The third set of war­rants were issued after SCDC issued its fir­ing squad exe­cu­tion pro­to­col. Those war­rants were stayed while the tri­al court con­sid­ered the pris­on­ers’ chal­lenge to the execution methods. 

Judge Newman deemed the two meth­ods, along with the statute, uncon­sti­tu­tion­al, declar­ing that they vio­lat­ed the South Carolina Constitution’s ban on cru­el, cor­po­ral, or unusual punishment. 

The court declared that death by fir­ing squad ​“con­sti­tutes tor­ture, [pro­duc­ing] a pos­si­bly lin­ger­ing death, and pain beyond that nec­es­sary for the mere extin­guish­ment of [life].” Based on expert tes­ti­mo­ny pre­sent­ed dur­ing a four-day tri­al, Newman found that a pris­on­er exe­cut­ed by fir­ing squad would like­ly remain con­scious for ten sec­onds or more after the fatal shot, dur­ing which he or she would expe­ri­ence ​“excru­ci­at­ing pain” from mul­ti­ple gun­shot wounds and shat­tered bones in the chest, which would be ​“exac­er­bat­ed by any move­ment he makes, such as flinch­ing or breath­ing.” Relying on the tes­ti­mo­ny of SCDC Director of Security and Emergency Operations Colie Rushton that SCDC specif­i­cal­ly select­ed ammu­ni­tion that ​“would cause cav­i­ta­tion (a hole in the inmate’s chest) up to six inch­es in diam­e­ter, at a depth of 45 inch­es into the body” and autop­sy pho­tos of Ronnie Lee Gardner, the last per­son in the U.S. to be exe­cut­ed by fir­ing squad, Newman found that fir­ing squad ​“muti­lates the human body” and there­by con­sti­tutes imper­mis­si­ble corporal punishment.

Newman also found that per­sons exe­cut­ed in the elec­tric chair ​“will expe­ri­ence intol­er­a­ble pain and suf­fer­ing from elec­tri­cal burns, ther­mal heat­ing, oxy­gen depri­va­tion, mus­cle tetany, and the expe­ri­ence of high-volt­age elec­tro­cu­tion.” A ​“sub­stan­tial per­cent­age of indi­vid­u­als sur­vive” the ini­tial admin­is­tra­tion of elec­tric­i­ty ​“and remain sen­sate long enough to expe­ri­ence excru­ci­at­ing pain and suf­fer­ing” before lat­er rounds of cur­rent ​“even­tu­al­ly kill[s] them by fib­ril­lat­ing their heart, cook­ing their organs, or pre­vent­ing them from breathing.” 

Based on this evi­dence and the infre­quent use of both meth­ods, the court found fir­ing squad and elec­tro­cu­tion to be cru­el, cor­po­ral, and unusual.