Richland County judge to rule on whether SC’s new execution law is unconstitutional

Just 11 days before the state is scheduled to carry out its first execution in about a decade, lawyers met in a Richland County court to argue whether a change in South Carolina’s execution law making inmates chose between the electric chair and firing squad is unconstitutional.

Lawyers for two death row inmates who have been scheduled for execution — Brad Sigmon and Freddie Owens — asked Judge Jocelyn Newman to issue an injunction that would stop the state Department of Corrections from carrying out the inmates’ executions later this month.

South Carolina lawmakers voted to change the execution law due to the state’s ongoing inability to purchase the necessary drugs to carry out a lethal injection, which some consider to be more humane.

In the 2000’s, drug companies decided to crack down on how their drugs are being used and stopped selling drugs commonly used in lethal injections to state corrections departments. As a result, South Carolina has not been able to obtain the drugs for years.

That coupled with a portion of an old execution law that made the lethal injection the default method of execution ground the state’s ability to execute death row inmates to a halt. Under the old South Carolina law, if an inmate did not explicitly choose to die in the electric chair, the state could not kill them that way.

In May, the legislature voted to change the state’s execution law so it could resume carrying out executions. Under the new law, the electric chair is the default method of execution, but if the firing squad or the lethal injection are available, inmates can choose those.

Currently, the Department of Corrections only has the ability to carry out an execution using the electric chair, meaning the department is slated to use the chair in an execution for the first time since 2008.

Sigmon and Owens’ lawyers argued that the law is vague and the state Department of Corrections is left to determine what “available” methods of execution means.

Hannah Freedman, a staff attorney at Columbia-based Justice 360, questioned why the lethal injection or firing squad are not currently available as methods of execution to Sigmon and Owens.

“We also know they are in the process of developing the firing squad,” Freedman said. “We also know that lethal inject drugs are available in other states.”

Corrections officials have testified for years that they could not purchase the drugs for a lethal injection because drug companies have refused to sell to them. Other states, however, have been able to purchase the drugs because they have shield laws — which protect the name of drug companies selling the lethal injection drugs from the public. South Carolina lawmakers have been unable to pass a shield law.

State working on execution procedures

As for the firing squad, the Department of Corrections is currently developing procedures to carry out an execution using that method, but the procedures are not yet ready.

Sigmon and Owens’ attorneys also argued that it was unfair that the law apply retroactively to inmates sentenced to death before its passage because, under the new law, inmates will be forced to die by a more painful method.

Freedman pointed out that, historically, when there has been evidence that a method of execution is more humane than the one currently used, states shift their main execution method to the newer, more humane method. For example, when the electric chair was thought to be more humane than hanging, that became the most widely used method of execution.

South Carolina is the only state to go back to a previously used method, Freedman said.

“We are really in a position to return to a prior era,” Freedman said.

Lawyers representing the Department of Corrections, its director, Brian Stirling, and S.C. Gov. Henry McMaster argued that when the inmates were sentenced to death, the method of death was not specifically set.

“The punishment to which Mr. Sigmon and Mr. Owens were sentenced to was death,” McMaster’s attorney Grayson Lambert said. “It was not death by a particular method.”

Daniel Plyer, the attorney for the Department of Corrections, said on the instructions given to the jury in Sigmon’s case, the documents specifically said the possible execution would be carried out by “electrocution or lethal injection.” The same was listed in the sentencing sheets for each inmate.

“The punishment here has not changed,” Plyer said. “The punishment … is the death penalty. That’s it. That’s the punishment. And it has not changed.”

As to whether one method is more painful than the other, the lawyers for the state argued that recent scientific thinking has changed on whether the lethal injection is the more humane option. Lambert said there is no proof that the lethal injection is less painful than death by the other methods. All three methods offered under the new law are considered constitutional under the Eight Amendment, the lawyers added.

“It doesn’t increase the punishment,” Plyer said.

While Judge Newman did not issue an order on the injunction immediately Monday morning, she said she hoped to have one by the end of the day or Tuesday.

Sigmon, who was convicted of murdering his ex-girlfriend’s parents with a baseball bat, is scheduled to be executed June 18. Owens, who was convicted of killing a convenience store clerk and confessed to another killing, is scheduled for June 25.

For Sigmon and Owens, this case represents one of the last things that can stand between them and their executions. If they successfully secure an injunction of the new law, that would mean they could not be executed unless the state were to obtain the drugs to carry out a lethal injection.