Is SC’s new execution law unconstitutional? Death row inmates ask court to weigh in

Two death row inmates facing execution filed a lawsuit earlier this week questioning whether a newly passed law that would require them to choose between the electric chair and the firing squad was constitutional.

The lawsuit, filed in a Richland County court Monday by inmates Brad Sigmon and Freddie Owens, questions whether it’s legal for the state to carry out their executions under the conditions imposed in the new law when they were initially sentenced under an old law that made the lethal injection the default mode of execution.

Lawmakers voted to change the execution law this year due to the Department of Corrections’ yearslong inability to purchase the necessary drugs for a lethal injection. Drug companies spent the last decade clamping down on how their products are used, making them impossible to obtain.

Under the current law, which was signed by S.C. Gov. Henry McMaster last Friday, inmates will be given the choice between the lethal injection, electric chair and the firing squad, but if the inmate’s choice is unavailable, the state can proceed with death by electric chair, which is now the state’s default method of execution. The Department of Corrections performs regular tests on the electric chair to make sure it’s operational.

Corrections is still unable to get the drugs for a lethal injection, and they have yet to formulate a policy for carrying out an execution by firing squad. That means, currently, the electric chair is the only operational method of carrying out an execution in South Carolina.

In their lawsuit, Sigmon and Owens argue that when they received their respective death sentences, South Carolina law said their death sentences would be carried out by lethal injection unless they specifically elected the electric chair. Neither inmate specifically selected the electric chair, so they argue that it would be a violation of their constitutional rights to make them die in the chair.

Specifically, the lawsuit says the retroactive nature of the new law violates the inmates’ right to due process. It also says the new law is “seeking to impose a less humane punishment than the one to which they were sentenced.”

The inmates’ suit cites comments made by lawmakers on both sides of the aisle during the debate over the execution bill earlier this year. They quoted Sen. Greg Hembree, R-Horry, who said he believed that the lethal injection “is an option, in my view, that would be more humane than the electric chair.” They also quoted Sen. Dick Harpootlian, D-Richland, who called the use of the electric chair a “horrible, horrible thing to do to another human being.” Both senators are former solicitors who prosecuted death penalty cases.

Owens and Sigmon asked the court for a “preliminary and permanent injunction” from having to choose a different method of execution under the newly passed law.

In their request for an injunction, Owens and Sigmon also argue that the state could have obtained lethal injection drugs if the Department of Corrections asked the Legislature for money to create their own compounding pharmacy, where the drugs could have been manufactured. They also argued that the Legislature could have passed a law to shield the name of drug companies that choose to sell the drugs to the state for the purposes of executions. Legislation that would have done those things failed multiple times during the last few legislative sessions.

In a letter to the state Supreme Court Thursday, Owens’ and Sigmon’s attorneys asked the court to keep their stays of execution in place as the court considers the legality of the new law.

Some lawmakers predicted that the new law would draw a legal challenge.

While the House debated the bill, S.C. Rep. Justin Bamberg, D-Bamberg, said lawyers and the defendants may have made different choices at trial if they would have known the only methods of execution available would have been the electric chair and the firing squad.

“With the law as it was written at the time, these individuals made a decision: do I plead guilty or take, maybe, a life sentence ... or do I go to trial and risk death?” Bamberg said on the floor. “And if I do go to trial, what kind of death am I facing?”

“We cannot change the rules of the game after the game has been played and there is a winner and a loser,” he added.

In the Senate, Republican S.C. Sen. Greg Hembree, of Horry County, conceded that the bill will likely draw lawsuits.

“If we pass the bill, the very first execution we have is going to be litigated probably to the United States Supreme Court,” Hembree said on the floor last week.

Owens and Sigmon both received stays of execution before the new legislation was passed, but the state Supreme Court included in their order that the stays would only last until the state had a way to carry out an execution or the law was changed.

Owens was convicted in 1999 of shooting and killing a convince store clerk in Greenville County during a robbery spree. While awaiting sentencing, he killed a fellow detainee at the Greenville County Detention Center, a crime he confessed to state police.

Sigmon was convicted and sentenced to death in 2002 for killing his ex-girlfriend’s parents with a baseball bat in Greenville County. According to court records, Sigmon also tried to kidnap his ex-girlfriend, but she escaped.

Both Owens and Sigmon have exhausted their regular appeals. If they are executed, they would be the first inmates killed in the state in about a decade.