South Carolina Supreme Court Hears Arguments on Constitutionality of Electrocution and Firing Squad, Considers Scope of Secrecy Law

On February 6, 2024, the South Carolina Supreme Court heard oral argu­ments in Owens v. Stirling, a case in which death-sen­tenced pris­on­ers chal­lenged the state’s elec­tro­cu­tion and fir­ing squad exe­cu­tion meth­ods as uncon­sti­tu­tion­al. A South Carolina tri­al court had pre­vi­ous­ly held an exten­sive evi­den­tiary hear­ing and issued an injunc­tion against use of those meth­ods based on the state’s con­sti­tu­tion­al pro­hi­bi­tion against ​“cru­el,” ​“unusu­al,” or ​“cor­po­ral” pun­ish­ments. For almost 90 min­utes the par­ties dis­cussed the expert tes­ti­mo­ny and evi­dence con­sid­ered by the dis­trict court, while also spend­ing sub­stan­tial time debat­ing the state’s oblig­a­tions to share infor­ma­tion about lethal injection drugs.

The plain­tiffs are Freddie Owens, Brad Sigmon, Gary Terry, and Richard Moore. Their suit tar­gets the state’s 2021 exe­cu­tion pro­to­col, which allows pris­on­ers to choose between elec­tro­cu­tion, fir­ing squad, or lethal injec­tion. The pro­to­col des­ig­nates elec­tro­cu­tion as the default, mak­ing South Carolina the only state with elec­tro­cu­tion as its pri­ma­ry method. South Carolina has not con­duct­ed an exe­cu­tion since 2011 due to alleged dif­fi­cul­ties obtain­ing lethal injec­tion drugs. The cur­rent chal­lenge arose when the state claimed that lethal injec­tion was unavail­able and set exe­cu­tion dates by elec­tro­cu­tion and fir­ing squad under the new pro­to­col. Trial court Judge Jocelyn Newman issued the injunc­tion in September 2022, and the South Carolina Supreme Court ruled in January 2023 that the state must turn over infor­ma­tion about its attempts to obtain lethal injec­tion drugs in order to under­stand how the state deemed that method ​“unavail­able.” The state has since announced, in September 2023, that it obtained pen­to­bar­bi­tal for use in lethal injections. 

The slight but impor­tant dif­fer­ences between the South Carolina Constitution and the United States Constitution play a key role in the lit­i­ga­tion. While the U.S. Constitution for­bids ​“cru­el and unusu­al pun­ish­ments,” the South Carolina Constitution goes fur­ther by stat­ing that no ​“cru­el, nor cor­po­ral, nor unusu­al pun­ish­ment” shall be inflict­ed. Thus, while the U.S. Supreme Court may only strike down a pun­ish­ment that is deemed both cru­el and unusu­al, the South Carolina Supreme Court can strike down a pun­ish­ment that meets any of the three cat­e­gories. At the dis­trict court lev­el, Judge Newman applied South Carolina’s more expan­sive pro­hi­bi­tion to find the meth­ods uncon­sti­tu­tion­al. At the Supreme Court, John Blume, attor­ney for the pris­on­ers, argued that the dis­trict court had been cor­rect, and that elec­tro­cu­tion was ​“cru­el” while use of the fir­ing squad was both ​“cor­po­ral” and ​“unusu­al.” 

Throughout the argu­ment, state attor­ney William Grayson Lambert referred to legal chal­lenges in oth­er states and argued that pris­on­ers would like­ly chal­lenge any method of exe­cu­tion. When remind­ed by Chief Justice Donald W. Beatty (cen­ter in pho­to) that the plain­tiffs had con­ced­ed the con­sti­tu­tion­al­i­ty of lethal injec­tion in South Carolina, Mr. Lambert replied that pris­on­ers in oth­er states were chal­leng­ing lethal injec­tion, and sug­gest­ed that pris­on­ers would not be ​“sat­is­fied” with any mea­sure tak­en by the state. He twice quot­ed U.S. Supreme Court Justice Samuel Alito in argu­ing that the court had an inter­est in pre­vent­ing ​“seem­ing­ly end­less pro­ceed­ings” in death penal­ty cas­es. This empha­sis reflects a long­stand­ing focus on pro­ce­dur­al ​“final­i­ty” in cap­i­tal cas­es, often at the expense of sub­stan­tive claims — includ­ing inno­cence — that may not have been reviewed by courts in ear­li­er pro­ceed­ings due to issues such as state mis­con­duct or inef­fec­tive assis­tance of counsel. 

Firing Squad 

The first half of the state’s allot­ted argu­ment was dom­i­nat­ed by dis­cus­sion of whether the fir­ing squad was an ​“unusu­al” method of exe­cu­tion. Mr. Lambert argued that the fir­ing squad was not unusu­al because South Carolina and the nation had not ​“clear­ly moved away” from using it. He com­pared the fir­ing squad to hang­ing, which he con­ced­ed was uncon­sti­tu­tion­al, and said that hang­ing had seen a long peri­od of dis­use and neg­a­tive treat­ment in the courts. 

However, mul­ti­ple jus­tices appeared skep­ti­cal of Mr. Lambert’s argu­ment, empha­siz­ing the sta­tis­tics show­ing that the fir­ing squad is the least used exe­cu­tion method in American his­to­ry and has also expe­ri­enced a long peri­od of dis­use. DPI found that just three of 1578 exe­cu­tions in the mod­ern era of the death penal­ty occurred by fir­ing squad (0.2%), all in Utah. Chief Justice Beatty said that the fir­ing squad had essen­tial­ly seen a ​“fifty-year hia­tus,” and that hang­ing had been used for ​“more than a hun­dred years” before it was discarded. 

The dis­cus­sion also con­cerned whether the fir­ing squad was a ​“cor­po­ral” pun­ish­ment, which has been defined as a pun­ish­ment that muti­lates the body. The last fir­ing squad exe­cu­tion occurred in 2010 in Utah after Ronnie Lee Gardner elect­ed that method; wit­ness­es report­ed he moved after he was shot. Judge Newman viewed pho­tos of Mr. Gardner’s autop­sy and con­clud­ed in her 2022 order that his body ​“has been, by any objec­tive mea­sure, muti­lat­ed.” At oral argu­ment, Justice John W. Kittredge (far left) referred to Mr. Gardner’s exe­cu­tion as a ​“hor­rif­ic episode.” ​“The pic­tures are bloody, but that doesn’t mean the exe­cu­tion was botched,” Mr. Lambert replied, and lat­er repeat­ed, ​“it is bloody, that’s the result of a gun­shot.” Justice Kittredge asked whether the fact that ​“the very pro­to­col in South Carolina antic­i­pates a sec­ond vol­ley of bul­lets” meant that the state antic­i­pat­ed extend­ed suf­fer­ing. ​“The pro­to­col is writ­ten with redun­dan­cies because all pro­to­cols are,” replied Mr. Lambert. 

Electrocution 

In debat­ing the con­sti­tu­tion­al­i­ty of elec­tro­cu­tion, both Mr. Lambert and Mr. Blume referred to expert tes­ti­mo­ny at the tri­al lev­el regard­ing the effect of an elec­tric cur­rent on the human body. Mr. Blume argued that the experts showed that the human skull resists elec­tric­i­ty, mean­ing that the cur­rent may not be pow­er­ful enough to enter the brain and cause imme­di­ate death, instead caus­ing severe and pro­longed suf­fer­ing. He point­ed to evi­dence that the agri­cul­tur­al indus­try only uses elec­tro­cu­tion to stun ani­mals because elec­tro­cu­tion is not deemed pow­er­ful or quick enough to kill. Mr. Lambert argued that the experts could not con­clu­sive­ly deter­mine the pow­er of the elec­tric cur­rent enter­ing the skull and as a result failed to meet their burden. 

Mr. Blume empha­sized that both the Georgia and Nebraska Supreme Courts out­lawed elec­tro­cu­tion as cru­el and unusu­al pun­ish­ment. In Dawson v. State (Ga. 2001), Georgia’s high court not­ed expert tes­ti­mo­ny that ​“the brain is shield­ed from much of the elec­tric­i­ty by the skull,” and ​“the alter­nat­ing cur­rent used in elec­tro­cu­tions could repet­i­tive­ly acti­vate the brain, caus­ing the per­cep­tion of excru­ci­at­ing pain and a sense of extreme hor­ror.” In State v. Mata (Neb. 2008), Nebraska’s jus­tices found a ​“pat­tern of pris­on­ers suf­fer­ing unnec­es­sary pain” under elec­tro­cu­tion, and high­light­ed the risk that pris­on­ers could break bones due to the force of con­trac­tions, expe­ri­ence severe burns, and even catch on fire. Mr. Lambert argued that the South Carolina Supreme Court should reject the use of these cas­es in part because ​“they were decid­ed when every­one assumed lethal injec­tion was avail­able” and ​“when every­one assumed lethal injec­tion was less painful.” 

Secrecy 

Though not a cen­tral issue of the law­suit at the tri­al court, the par­ties and jus­tices devot­ed sig­nif­i­cant time at oral argu­ment to South Carolina’s ​“shield” law, which pro­hibits the dis­clo­sure of exe­cu­tion-relat­ed infor­ma­tion. The state defend­ed against reveal­ing any infor­ma­tion about lethal injec­tion drugs, argu­ing that the details would give pris­on­ers ​“puz­zle pieces” to deduce the ori­gins of the drugs and make it more dif­fi­cult for the South Carolina Department of Corrections to obtain the drugs in the future. Mr. Lambert said that the law­suit did not con­cern the secre­cy statute direct­ly, but acknowl­edged that the court could decide its con­sti­tu­tion­al­i­ty if nec­es­sary to reach its con­clu­sion. On behalf of the pris­on­ers, Mr. Blume argued in favor of ​“min­i­mum dis­clo­sures” to ensure the drugs’ ​“poten­cy, puri­ty, and sta­bil­i­ty,” and sug­gest­ed test­ing and trans­paren­cy poli­cies sim­i­lar to those in oth­er states and the fed­er­al gov­ern­ment. He did not take a posi­tion on the con­sti­tu­tion­al­i­ty of the shield law. 

In a lengthy exchange with Justice John Cannon Few (far right), Mr. Lambert con­ced­ed that the state did not test its lethal injec­tion drugs. Justice Few respond­ed with con­cern, mus­ing that ​“sure­ly the state would ver­i­fy that this is the right drug to use” in a time when sto­ries have emerged of states obtain­ing exe­cu­tion drugs from sketchy or ille­gal sources. Mr. Lambert replied by say­ing that the court had nev­er required the state to prove the drugs’ prove­nance, but Justice Few not­ed that ​“the atmos­phere has changed since 1995” and there are now seri­ous doubts about the qual­i­ty and sources of lethal injec­tion drugs. Chief Justice Beatty asked whether Mr. Lambert would object to inde­pen­dent test­ing, and Mr. Lambert said yes, argu­ing that inde­pen­dent test­ing would draw addi­tion­al peo­ple under the umbrel­la of the shield law and could ​“alter the shelf-life” of the drugs. 

Mr. Blume argued that ​“poten­cy, puri­ty, and sta­bil­i­ty” were rea­son­able requests with high stakes for the pris­on­er. He empha­sized that both Texas, the state con­duct­ing the most exe­cu­tions, and the fed­er­al gov­ern­ment under the Trump admin­is­tra­tion pro­vid­ed the cer­ti­fi­ca­tions the law­suit rec­om­mend­ed as to con­tent and qual­i­ty of the drugs. He also argued that none of this infor­ma­tion is barred by the statute, con­trary to Mr. Lambert’s claims, as the statute focus­es on iden­ti­fy­ing infor­ma­tion about the peo­ple par­tic­i­pat­ing in exe­cu­tions. When asked for the basis of a legal right to this infor­ma­tion, Mr. Blume cit­ed the pris­on­ers’ right to an exe­cu­tion that was not ​“cru­el, nor cor­po­ral, nor unusu­al” under the state Constitution, as well as their right to due process under the Fourteenth Amendment of the U.S. Constitution.