South Carolina Death-Row Prisoners File Suit to Block Firing-Squad Executions Until Courts Address Challenges to Execution Methods

Lawyers for three men on South Carolina​’s death row have asked the state supreme court to defer set­ting exe­cu­tion dates until the courts resolve pend­ing legal chal­lenges to the state’s con­tro­ver­sial execution methods. 

The request was filed in the South Carolina Supreme Court on March 21, 2022 on behalf of Brad Keith Sigmon, Freddie Eugene Owens, and Gary Dubose Terry, just days after South Carolina Department of Corrections offi­cials announced they were pre­pared to per­form exe­cu­tions by fir­ing squad. The men argue that South Carolina law gives them the right to select between death by lethal injec­tion, elec­tric chair, or fir­ing squad. Their motion asserts that exe­cu­tion by elec­tric chair and fir­ing squad are both uncon­sti­tu­tion­al and that the state has failed to pro­duce any evi­dence that it has made even a min­i­mal effort to obtain lethal-injection drugs.

No phar­ma­ceu­ti­cal man­u­fac­tur­er in the United States has been will­ing to sell its med­i­cines to pris­ons for use in exe­cu­tions, but a num­ber of states have nev­er­the­less been able to obtain drugs through phar­ma­ceu­ti­cal dis­trib­u­tors or from indi­vid­ual com­pound­ing phar­ma­cies. South Carolina has long assert­ed that it is unable to obtain drugs for lethal injec­tions, but the South Carolina Department of Corrections (SCDC) has refused to dis­close what it has done in attempt­ing to procure them.

Based on the claimed unavail­abil­i­ty of drugs, the South Carolina leg­is­la­ture passed and Governor Henry McMaster signed into law a bill that made the elec­tric chair the state’s default method of exe­cu­tion and added the fir­ing squad as an alter­na­tive method. The 2021 law gives death-row pris­on­ers the right to des­ig­nate which of the three meth­ods will be used. If lethal injec­tion is deemed unavail­able, the pris­on­ers must des­ig­nate death by fir­ing squad or be electrocuted.

In their request to the state supreme court, lawyers for the men argue that these alter­na­tive meth­ods of exe­cu­tion are bar­bar­ic and that no death war­rants should be issued before ques­tions con­cern­ing their con­sti­tu­tion­al­i­ty have been adju­di­cat­ed. The same legal team pre­vi­ous­ly filed a law­suit in Richland County Circuit Court seek­ing judi­cial review of the new law and SCDC’s efforts to make lethal injection available.

In a March 22 news release, Justice 360, the legal group rep­re­sent­ing the men, wrote: ​“The leg­isla­tive change and SCDC’s unwill­ing­ness to make lethal injec­tion avail­able makes South Carolina an out­lier, revert­ing from the most humane method of exe­cu­tion — lethal injec­tion — to two anti­quat­ed, barbarous methods.” 

Justice 360 also chal­lenged the oth­er meth­ods of exe­cu­tion approved for use in the state. ​“South Carolina has nev­er car­ried out an exe­cu­tion by fir­ing squad and now pro­pos­es to use only three vol­un­teer shoot­ers with an undis­closed cal­iber rifle, thus increas­ing the risk of error,” the release said. ​“Firing squad muti­lates the body by explod­ing the chest with high-pow­ered rifles, leav­ing holes in the corpse, expos­ing inter­nal tis­sue, destroy­ing inter­nal organs, and soak­ing the prisoner’s cloth­ing, the sand bags that sur­round it, and the ground with blood,” the pris­on­ers’ lawyers wrote in their court filing.

The news release ques­tioned South Carolina’s com­pe­tence to car­ry out elec­tric-chair exe­cu­tions. ​“Alternately, SCDC intends to use the state’s over 100-year-old elec­tric chair, a method with more than a cen­tu­ry-long record of hor­rif­i­cal­ly botched exe­cu­tions,” Justice 360 said.

State pros­e­cu­tors have argued that the U.S. Supreme Court has nev­er held exe­cu­tions by elec­tro­cu­tion or fir­ing squad to be uncon­sti­tu­tion­al and that cor­rec­tions offi­cials are sim­ply car­ry­ing out the law when they seek execution dates. 

South Carolina has twice unsuc­cess­ful­ly attempt­ed to exe­cute Sigmon and Owens. They were first sched­uled to be exe­cut­ed on February 12, 2020 and May 14, 2020, respec­tive­ly but the South Carolina Supreme Court 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 fir­ing squad was approved as an alter­na­tive method, exe­cu­tion notices were again issued for Sigmon and Owens, sched­ul­ing their exe­cu­tions for June 18, 2021, and June 25, 2021. However, two days before Sigmon’s sched­uled exe­cu­tion, SCDC noti­fied the court that exe­cu­tion by fir­ing squad was ​“cur­rent­ly unavail­able due to the Department of Corrections hav­ing yet to com­plete its devel­op­ment and imple­men­ta­tion of nec­es­sary pro­to­cols and poli­cies.” Both exe­cu­tions were stayed until SCDC ​“has devel­oped and imple­ment­ed appro­pri­ate pro­to­cols and poli­cies to car­ry out exe­cu­tions by fir­ing squad.” SCDC announced on March 18, 2022 that it had com­plet­ed its prepa­ra­tions to car­ry out exe­cu­tions by firing squad.

All three men have exhaust­ed the appeals of their con­vic­tions and death sentences.