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South Carolina Judge Halts State Executions by Electrocution and Firing Squad

by David M. Reutter and Ed Lyon

On September 6, 2022, the Richland County Court of Common Pleas granted an injunction in a challenge brought by four condemned South Carolina prisoners to 2021 state legislation making electrocution the default method of execution unless a prisoner opts instead for lethal injection or firing squad, which the state approved in March of that year. [See: PLN, Aug. 2021, p.38.]

In her ruling halting the executions, Judge Jocelyn Newman said the legislation “turned back the clock” and “ignored advances in scientific research and evolving standards of humanity and decency.” Gov. Henry McMaster (R), one of the defendants in the case, vowed to appeal.

Earlier, the state supreme court stayed the executions of two of the four plaintiffs, Richard Moore and Brad Sigmon, originally scheduled for April 29 and May 13, 2022, respectively. After state Department of Corrections (DOC) Director Bryan Stirling admitted there were no drugs to carry out a lethal injection and no protocols in place to use a firing squad, the supreme court said that left the prisoners just one option — to face death in the state’s 110-year-old electric chair — which clearly violated the language of the method-of-execution statute granting them a choice of how to die. See: State v. Sigmon & Sigmon v. State, S.C., Case No. 2002-024388 and Case No. 2021-000584 (2021); State v. Owens, S.C., Case No. 2006-038802 (2021).

In her ruling, Judge Newman went a step further and found both electrocution and the firing squad violated the state constitution’s prohibition against punishment that is “cruel” or “unusual” or “corporal” — a higher standard than the Eighth Amendment’s protection from punishment that must be both “cruel” and “unusual.” After listening to dueling opinions from the parties’ experts, the judge reviewed autopsy photos from the last execution by firing squad in Utah, noting “[t]he inmate’s body has been, by any objective measure, mutilated” — which is the definition in South Carolina of impermissible corporal punishment.

As for electrocution, courts in only three states have addressed it, the judge noted, with those in Georgia and Nebraska finding it violated their state constitutions in 2001 and 2008, respectively, while Florida legislators made lethal injection the default method of execution after a 1999 decision upholding the use of electrocution issued by the state’s supreme court was granted certiorari for review by the U.S. Supreme Court.

Precedent from the high court upholding the use of electrocution in an earlier case from the state, Malloy v. South Carolina, 237 U.S. 180 (1915), was “decided over a century ago,” Judge Newman added, on what was then a “well-grounded belief that electrocution is less painful and more humane.” However, as the expert witnesses in this case testified, “the assumption that electrocution causes an instantaneous and painless death is a fallacy unsupported by scientific evidence or simulations,” the judge said.

Thus Defendants were permanently enjoined from carrying out executions by electrocution or firing squad. In addition to Moore and Sigmon, the challenge was joined by prisoners Freddie Eugene Owens and Gary Dubose Terry. Owens’ June 2021 execution was the first scheduled in the state in ten years, but it was stayed at the last minute by the U.S. Supreme Court and has not been rescheduled. Terry was added to the suit after exhausting appeals to his death sentence. All four plaintiffs were represented by attorneys J. Christopher Mills, Joshua S. Kendrick, Lindsey S. Vann, and Hannah Freedman. See: Owens v. Stirling, Court of Common Pleas (5th Jud. Dist., Richland Cty.), Case No. 2021-CP-4002306.

DOC has only grudgingly complied with Freedom of Information Act requests for information about its firing squad scheme, producing documents so heavily redacted that little more than the agency name and state seal were legible. It was finally ascertained that around $53,000 in taxpayer funds bought four rifles, some ammunition, four locking casters for the death chair, a bullet-stopping ballistic blanket, and some bulletproof glass. No proposed procedures have been released, but about 100 nondisclosure agreements have been executed by a group from which the three-member death squad would be drawn.

States are finding it increasingly difficult to perform lethal injections, with pharmaceutical companies refusing to sell the chemicals on moral grounds. [See: PLN, Feb. 2019, p.42.] This may have been a factor in Virginia’s March 2021 decision to abolish the death penalty, the first southern state to do so. [See: PLN, July 2021, p.46.] 

Additional sources: Greenville News, New York Times, The State

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Related legal cases

State v. Sigmon

Sigmon v. State

State v. Owens

Owens v. Stirling,