South Carolina Trial Court Rules in Favor of Death-Row Prisoners Challenging Execution Methods

A South Carolina tri­al court has issued an injunc­tion pre­vent­ing the state from car­ry­ing out exe­cu­tions using a fir­ing squad or the elec­tric chair, rul­ing that those meth­ods vio­late the state’s con­sti­tu­tion­al pro­hi­bi­tion against ​“cru­el, unusu­al, and corporal punishments.”

In a 38-page opin­ion issued September 6, 2022, Richland County Court of Common Pleas Judge Jocelyn Newman (pic­tured) opin­ion offered a sweep­ing con­dem­na­tion of the state’s 2021 method-of-exe­cu­tion statute, which made the elec­tric chair the state’s default method of exe­cu­tion and added the fir­ing squad as a sec­ond alter­na­tive to lethal injec­tion. The deci­sion came fol­low­ing a week-long tri­al in a case brought by death-row pris­on­ers Freddie Owens, Brad Sigmon, Gary Terry, and Richard Moore that chal­lenged the con­sti­tu­tion­al­i­ty of exe­cu­tions by fir­ing squad or elec­tro­cu­tion. Relying upon expert tes­ti­mo­ny pre­sent­ed in that tri­al, Newman found that the pain and bod­i­ly muti­la­tion caused by elec­tro­cu­tion and fir­ing squad were intol­er­a­ble under the state constitution.

In strik­ing down the law, Judge Newman not­ed that only one state in the U.S. had car­ried out any exe­cu­tions by fir­ing squad over the past fifty years and that South Carolina was the only state to have des­ig­nat­ed the elec­tric chair as the default method of exe­cu­tion. South Carolina, she declared, had ​“turned back the clock” and ​“ignored advances in sci­en­tif­ic research and evolv­ing stan­dards of human­i­ty and decency.”

A spokesper­son for Governor Henry McMaster said that gov­er­nor dis­agreed with the court’s rul­ing and would appeal.

South Carolina had argued to the court that it should eval­u­ate the pris­on­er’s claims under the Eighth Amendment of the U.S. Constitution. Judge Newman reject­ed the argu­ment, cit­ing state supreme court case law that pro­vid­ed for height­ened pro­tec­tions under the South Carolina Constitution’s ban on cru­el, cor­po­ral, or unusual punishment. 

The court found the fir­ing squad to be unusu­al, cru­el, and cor­po­ral. In eval­u­at­ing whether the pun­ish­ment is unusu­al, the court not­ed the rar­i­ty of such exe­cu­tions and that South Carolina has nev­er con­duct­ed one. The court found the pun­ish­ment to be cru­el after cred­it­ing expert tes­ti­mo­ny that death by fir­ing squad would be extreme­ly painful because the pris­on­er is like­ly to be con­scious after the fatal shot and ​“will feel excru­ci­at­ing pain result­ing from the gun­shot wounds and broken bones.” 

The court also exam­ined the South Carolina constitution’s bar on ​“cor­po­ral” pun­ish­ments, which has been inter­pret­ed as pro­hibit­ing pun­ish­ments that muti­late the body. After review­ing pho­tos from the autop­sy of Ronnie Lee Gardner, the last per­son to be exe­cut­ed by fir­ing squad, the court con­clud­ed that Gardner’s body ​“has been, by any objec­tive mea­sure, muti­lat­ed.” The court relied upon tes­ti­mo­ny from South Carolina Department of Corrections (SCDC) offi­cials and SCDC’s plan for con­duct­ing fir­ing squad exe­cu­tions to fur­ther sup­port its con­clu­sion, writ­ing that ​“SCDC cer­tain­ly antic­i­pates sim­i­lar car­nage, as it cre­at­ed a fir­ing squad cham­ber that includes a slant­ed trough below the fir­ing squad chair to col­lect the inmate’s blood and cov­ered the walls of the cham­ber with a black fab­ric to obscure any bod­i­ly flu­id or tis­sues that emanate from the inmate’s body.”

Like the supreme courts of Georgia and Nebraska, the court found the elec­tric chair to vio­late con­sti­tu­tion­al prin­ci­ples. The court focused on the like­li­hood of ​“intol­er­a­ble pain and suf­fer­ing from elec­tri­cal burns, ther­mal heat­ing, oxy­gen depri­va­tion, mus­cle tetany, and the expe­ri­ence of high-volt­age elec­tro­cu­tion.” The court cit­ed tri­al evi­dence that those under­go­ing ​“elec­tro­cu­tion con­tin­ue to move, breathe, and even scream after the shock is admin­is­tered” and ​“that a sub­stan­tial per­cent­age of indi­vid­u­als sur­vive and remain sen­sate long enough to expe­ri­ence excru­ci­at­ing pain and suf­fer­ing.” Based on this evi­dence and the infre­quen­cy with which the elec­tric chair is used, the court found elec­tro­cu­tion to be cru­el, unusu­al, and corporal.

The court also con­clud­ed that the 2021 meth­ods of exe­cu­tion statute was an unlaw­ful ex post fac­to law because it made elec­tro­cu­tion the default method of exe­cu­tion. Comparing lethal injec­tion to elec­tro­cu­tion and the fir­ing squad, the court found that “[l]ethal injec­tion is the least severe of the three statu­to­ri­ly autho­rized pun­ish­ments, and the amend­ed statute effec­tive­ly revokes that less­er pun­ish­ment.” The court also found that the statute’s pro­vi­sion for lethal injec­tion only when it is ​“avail­able” is imper­mis­si­bly vague and uncon­sti­tu­tion­al­ly allows the SCDC direc­tor unbri­dled dis­cre­tion to deter­mine when lethal injec­tion will be used.