Examining South Carolina’s History of Racial Violence and Capital Punishment

In Witherspoon v. Illinois (1968) The Supreme Court con­firmed that cap­i­tal juries must ​“express the con­science of the com­mu­ni­ty,” but acknowl­edged that court pro­ce­dures like death qual­i­fi­ca­tion and peremp­to­ry chal­lenges, “[impli­cate] arbi­trari­ness in the admin­is­tra­tion of jus­tice [and] under­mines society’s trust in the rule of law…” 

Research in 2010 on South Carolina juries con­firms nation­al trends that both race and gen­der influ­ence who is select­ed to serve on a jury and how they delib­er­ate. Building on this research, Professor Ann M. Eisenberg, Associate Professor of Law at the University of South Carolina School of Law, con­cludes that these fac­tors play mean­ing­ful roles through­out the South Carolina cap­i­tal jury selec­tion process.³

Under state law, both par­ties (and the court) may ask for prospec­tive jurors to be exclud­ed for cause if their views on cap­i­tal pun­ish­ment would inter­fere with their abil­i­ty to fol­low the law — for exam­ple, an inabil­i­ty to impose a death sen­tence. The tri­al judge ulti­mate­ly decides whether to remove a poten­tial juror for cause. Research has shown, how­ev­er, that cause deter­mi­na­tions result in greater exclu­sion of Black peo­ple from juries than white people. 

During voir dire, both par­ties may also move to exclude peo­ple by using a lim­it­ed num­ber of peremp­to­ry strikes or chal­lenges — vetoes that either par­ty may use to remove indi­vid­ual jurors with­out need­ing to statea rea­son. Author Morris B. Hoffman cit­ed peremp­to­ry chal­lenges as ​“the last best tool of Jim Crow.” because of their per­sis­tent mis­use to exclude jurors of col­or. Although Batson v. Kentucky (1986) legal­ly pro­hibits exclud­ing poten­tial jurors based on their race, many decades of research have shown that many pros­e­cu­tors use peremp­to­ry strikes to exclude Black peo­ple and ensure that a ​“whiter” jury sits in judg­ment of Black defendants. 

Professor Eisenberg’s research found that between 1997 and 2012, Black prospec­tive jurors were exclud­ed for cause at high­er rates than white jurors (56%). Significant racial dis­par­i­ties were also seen in the use of peremp­to­ry strikes: “[the] prosecution’s strikes account­ed for elim­i­nat­ing 12% of [white mem­bers] who were qual­i­fied dur­ing voir dire and 35% of [Black mem­bers] who were qual­i­fied, while the defense’s strikes elim­i­nat­ed 35% of [white peo­ple] who were not removed dur­ing voir dire and 3% of [Black people].” 

Another study con­duct­ed by Effenberger, Blume and Wells ana­lyzed the voir dire process in 17 South Carolina cap­i­tal cas­es, specif­i­cal­ly look­ing at the ques­tions asked of those removed from the jury pool⁴. Examining the 26,731 ques­tions from the judge, defense, and pros­e­cu­tion asked of 37 Black women, 31 Black men, 193 white women, and 173 white men, researchers found sig­nif­i­cant dif­fer­ences in the prosecution’s ques­tion­ing of Black and white venire mem­bers. For exam­ple, poten­tial jurors removed by the pros­e­cu­tion were asked sig­nif­i­cant­ly longer ques­tions, with Black women giv­ing the longest answers; this sup­ports the researchers’ point that “[l]ong ques­tions can indi­cate attempts to prime the respond­ing venire mem­bers for a certain response.” 

The researchers also exam­ined the case of Ricky Blackwell, a Black man sen­tenced to death who raised Atkins and Batson claims in his appeal to the South Carolina Supreme Court. The pros­e­cu­tor in his case improp­er­ly removed two Black male jurors, explain­ing that he did so because they were ​“pro-life” and had crim­i­nal records. But sev­er­al white poten­tial jurors with com­pa­ra­ble beliefs and back­grounds were not exclud­ed by the prosecution. 

Mr. Moore was con­vict­ed and sen­tenced to death for the 1999 killing of a store clerk. He entered the store unarmed, intend­ing to com­mit a rob­bery. After being threat­ened by the clerk with a gun, Mr. Moore strug­gled with him, result­ing in the death of the clerk, James Mahoney. 

According to state advo­cates, Mr. Moore was the last South Carolina death row pris­on­er sen­tenced by an all-white jury and the first in the state’s mod­ern death penal­ty era to be exe­cut­ed after ini­tial­ly being unarmed and respond­ing to a perceived threat. 

As is true in many death penal­ty cas­es, pol­i­tics also fac­tored in his case. His fate became an issue in a con­test­ed pri­ma­ry elec­tion for Spartanburg County Solicitor. Incumbent Holman Gossett — who had fre­quent­ly sought the death penal­ty in cas­es involv­ing white vic­tims — accused chal­lenger Trey Gowdy as being weak on cap­i­tal pun­ish­ment. After los­ing the pri­ma­ry but before leav­ing office, DA Gossett announced that his office would seek the death penal­ty against Mr. Moore, deter­min­ing how the case would pro­ceed under the incoming administration. 

Racial dynam­ics were evi­dent from the very begin­ning when all eli­gi­ble Black jurors were exclud­ed by pros­e­cu­tors. The fair­ness of the tri­al pro­ceed­ings were fur­ther affect­ed by the fact that Mr. Moore was Black and his vic­tim was white. The Race of Victim Effect has shown that these fac­tors made it more like­ly Mr. Moore would be charged cap­i­tal­ly, sen­tenced to death, have his sen­tence upheld on appeal, and be executed. 

According to Mr. Moore’s appeal to the U.S. Supreme Court, while white jurors were asked five ques­tions on aver­age dur­ing voir dire, the two Black jurors the State ulti­mate­ly exclud­ed were asked forty and sev­en­teen ques­tions respec­tive­ly. The appeal con­clud­ed ​“The State’s deci­sion to strike these jurors had a dis­crim­i­na­to­ry impact and allowed it to secure an all-white jury. The total­i­ty of these cir­cum­stances sup­ports a find­ing that racial dis­crim­i­na­tion played a con­sti­tu­tion­al­ly imper­mis­si­ble role in jury selec­tion at Moore’s tri­al under this Court’s precedents.” 

Two jurors, the tri­al judge, and a for­mer direc­tor of state cor­rec­tions peti­tioned Governor Henry McMaster for clemen­cy, describ­ing Mr. Moore as an involved father, a sup­port­ive grand­fa­ther, and a ​“force for good.” He was exe­cut­ed on November 1, 2024.