South Carolina Court Set to Rule on Prisoners’ Challenge to Electric Chair and Firing Squad Executions After Completion of Methods of Execution Trial

A deci­sion on the con­sti­tu­tion­al­i­ty of South Carolina​’s new­ly adopt­ed exe­cu­tion meth­ods now rests in the hands a tri­al court judge after lawyers for death-row pris­on­ers and the South Carolina Department of Corrections (SCDC) pre­sent­ed four days of con­flict­ing expert tes­ti­mo­ny about the amount of pain suf­fered dur­ing fir­ing squad and elec­tric chair executions. 

The tri­al before Circuit Court Judge Jocelyn Newman (pic­tured) was con­duct­ed in response to a law­suit filed on March 21, 2022 by death-sen­tenced pris­on­ers Brad Sigmon, Freddie Owens, and Gary Terry chal­leng­ing South Carolina’s exe­cu­tion pro­to­col, short­ly after the SDSC announced it was pre­pared to car­ry out exe­cu­tions by fir­ing squad. The men argued that South Carolina law gives them the right to select between death by lethal injec­tion, elec­tric chair, or fir­ing squad, that exe­cu­tion by elec­tric chair and fir­ing squad are both uncon­sti­tu­tion­al, and that SCDC has failed to pro­duce any evi­dence that it has made even a min­i­mal effort to obtain lethal-injection drugs.

On April 14, 2022, Judge Newman denied South Carolina’s motion to dis­miss the pris­on­ers’ law­suit. The South Carolina Supreme Court then grant­ed stays of exe­cu­tion to two pris­on­ers fac­ing immi­nent exe­cu­tion to avoid hav­ing them put to death before the legal­i­ty of the exe­cu­tion process had been determined.

The tri­al con­clud­ed with clos­ing argu­ments on August 4, 2022. Joshua Kendrick, a lawyer from the jus­tice-reform non-prof­it Justice360, which rep­re­sent­ed the pris­on­ers, depict­ed elec­tric-chair and fir­ing-squad exe­cu­tions in graph­ic terms. “[B]oth of these meth­ods muti­late,” he said. ​“You burn and cook peo­ple in the elec­tric chair. You destroy the chest of the per­son in the firing squad.” 

SCDC’s lawyer, Daniel Plyler respond­ed that ​“the Eighth Amendment does not guar­an­tee a pris­on­er a pain­less death, some­thing that, of course, isn’t guar­an­teed for many peo­ple, includ­ing most vic­tims of cap­i­tal crimes.” He accused the pris­on­ers of ask­ing the judge to ​“leg­is­late from the bench.” 

Judge Newman is expect­ed to issue her rul­ing with­in 30 days.

South Carolina’s Efforts to Restart Executions

South Carolina has not exe­cut­ed any­one since 2011 and has unsuc­cess­ful­ly attempt­ed to restart exe­cu­tions three times since 2020.

Prosecutors sought to exe­cute Sigmon and Owens by lethal injec­tion in February and May 2020, respec­tive­ly, with­out obtain­ing the drugs nec­es­sary to do so. The South Carolina Supreme Court then halt­ed the exe­cu­tions say­ing it was ​“cur­rent­ly impos­si­ble” for the state to car­ry them out because SCDC ​“lacks the means to con­duct an exe­cu­tion by lethal injec­tion at this time.”

After the leg­is­la­ture amend­ed South Carolina’s approved the fir­ing squad as an alter­na­tive method, South Carolina again issued exe­cu­tion notices for Sigmon and Owens sched­ul­ing their exe­cu­tions in June 2021, this time by elec­tric chair. During the pen­den­cy of the war­rants, the South Carolina leg­is­la­ture amend­ed the law to make the elec­tric chair the state’s default method of exe­cu­tion with lethal injec­tion, if avail­able, and fir­ing squad as alter­na­tive meth­ods. However, two days before Sigmon’s sched­uled June 18, 2021 exe­cu­tion, SCDC noti­fied the court it had ​“yet to com­plete its devel­op­ment and imple­men­ta­tion of nec­es­sary pro­to­cols and poli­cies” for firing-squad executions. 

In sep­a­rate orders issued in the two cas­es on June 16, 2021, the court again halt­ed the exe­cu­tions, rul­ing that their exe­cu­tion by elec­tro­cu­tion with­out offer­ing them the alter­na­tive of lethal injec­tion or fir­ing squad vio­lat­ed the ​“statu­to­ry right of inmates to elect the man­ner of their exe­cu­tion.” The court direct­ed SCDC not to seek addi­tion­al exe­cu­tion dates until they had appro­pri­ate fir­ing squad pro­to­col in place. SCDC announced on March 18, 2022 that it had com­plet­ed its prepa­ra­tions to car­ry out exe­cu­tions by fir­ing squad and sought exe­cu­tion dates for Sigmon and Richard Moore, to be car­ried out by fir­ing squad. Those exe­cu­tions also were stayed, allow­ing the tri­al court the oppor­tu­ni­ty to adju­di­cate the pris­on­ers’ suit.

The Evidence in the Execution-Methods Trial

Much of tri­al focused on the amount of pain pris­on­ers would expe­ri­ence if exe­cut­ed by fir­ing squad or elec­tro­cu­tion. Lawyers for the death-row pris­on­ers called Dr. Johnathan Arden, a foren­sic pathol­o­gist and for­mer chief med­ical exam­in­er for Washington D.C., who tes­ti­fied that there is ​“zero sci­en­tif­ic evi­dence” that death by fir­ing squad or elec­tro­cu­tion elim­i­nates the risk of pain. 

Dr. Arden, who has per­formed more than 3,000 autop­sies, includ­ing more than 80 involv­ing pris­on­ers exe­cut­ed in the elec­tric chair, tes­ti­fied that a per­son remains con­scious for 15 sec­onds or longer after being shot or elec­tro­cut­ed. Dr. Arden explained that ​“if some­one were to be shot like that and then have a brief peri­od of con­scious­ness and were to breathe or move, that per­son would be expe­ri­enc­ing excru­ci­at­ing pain.” Further, Dr. Arden stat­ed that dur­ing elec­tro­cu­tion, an indi­vid­ual will feel ​“hor­rif­ic pain,” adding that ​“you get the effects on parts of the body, includ­ing inter­nal organs, that’s the equiv­a­lent of cooking.” 

The SCDC called sev­er­al wit­ness­es in defense of the fir­ing squad and the elec­tric chair. Dr. Jorge Alvarez, a Texas car­di­ol­o­gist, tes­ti­fied that a shot to the heart would stop blood-flow ​“rel­a­tive­ly imme­di­ate­ly” and would cause the per­son to lose con­scious­ness in about 10 sec­onds. Dr. D’Michelle DuPre, a retired foren­sic pathol­o­gist, said ​“the fir­ing squad would be very rapid.” Dr. Ronald Wright, a for­mer med­ical exam­in­er in Vermont and Florida, tes­ti­fied that, dur­ing an elec­tro­cu­tion exe­cu­tion, a per­son would lose the abil­i­ty to feel sen­sa­tion before feel­ing any pain. However, on cross-exam­i­na­tion, he opined that the fir­ing squad would be painful. 

In his clos­ing argu­ment, Kendrick urged Judge Newman to tem­per jus­tice with mer­cy. ​“The law gives you the abil­i­ty to grant mer­cy, to find com­pas­sion for those we have the pow­er to pun­ish,” he said. ​“So on behalf of all of us mer­ci­ful and good peo­ple of South Carolina, we want you to have that com­pas­sion that the South Carolina con­sti­tu­tion requires and ensure these plain­tiffs are killed in the most humane way possible.” 

William Grayson Lambert, senior coun­sel to South Carolina Gov. Henry McMaster coun­tered that mer­cy had no place in the court’s deci­sion. ​“The ques­tion of mer­cy is one of clemen­cy that our Constitution com­mits exclu­sive­ly to the gov­ern­ment,” he said. 

Lawyers for South Carolina pre­sent­ed no evi­dence doc­u­ment­ing SCDC’s efforts to obtain exe­cu­tion drugs but nonethe­less assert­ed that the drugs were unavail­able. SCDC Director Bryan Stirling swore in an affi­davit that SCDC offi­cials had con­tact­ed mul­ti­ple drug man­u­fac­tur­ers, ​“all of which have refused to sell the drugs to the Department.” He also con­clu­so­ri­ly assert­ed that efforts to obtain exe­cu­tion drugs from com­pound­ing phar­ma­cies had been unsuc­cess­ful. ​“As a result lethal injec­tion is not avail­able to the Department as a method of exe­cu­tion,” Stirling wrote.

SCDC sought and obtained a pro­tec­tive order under the state’s exe­cu­tion secre­cy law to pre­vent dis­clo­sure of records that would doc­u­ment the steps SCDC had tak­en to attempt to obtain exe­cu­tion drugs. After pre­vent­ing the pris­on­ers’ lawyers from obtain­ing that evi­dence, Lambert then argued that the pris­on­ers bore the legal bur­den of show­ing that exe­cu­tion drugs were avail­able. ​“Even if the court did not allow the plain­tiffs to explore what SCDC had done, the plain­tiffs are free to offer evi­dence of their own efforts to locate a source of drugs, and they put up noth­ing. … And their silence on that fact is deaf­en­ing,” Lambert said.

Following clos­ing argu­ments, Judge Newman said she will review all the evi­dence and reach her deci­sion with­in the 30-day time­frame in which the South Carolina Supreme Court has asked to act. ​“I have a lit­tle think­ing, pray­ing, hop­ing, and fig­ur­ing out to do,” she said.

Since 1976, there have been 163 exe­cu­tions by elec­tro­cu­tion in the United States. Currently, only 7 oth­er states still per­mit elec­tro­cu­tion as a method of exe­cu­tion. Only three peo­ple have been exe­cut­ed by fir­ing squad since 1976, all in Utah. South Carolina last used the elec­tric chair to exe­cute a death-row pris­on­er in 2008.