South Carolina Court finds firing squad, electric chair unconstitutional; state to appeal

A South Carolina judge has found that the firing squad and electric chair are prohibited by the state's constitution.

In an order filed Tuesday evening, Judge Jocelyn Newman ruled that the South Carolina Department of Corrections is permanently barred from executing four death row inmates by electrocution or by firing squad

"In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die. In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency," the order read.

“We are very pleased with the result and are reviewing the Court's Order. We anticipate SCDC and the Governor's Office will appeal the decision,” said Lindsey Vann, attorney for Justice 360 who represented the four men.

On Wednesday, Brian Symmes, a spokesperson for Gov. Henry McMaster, confirmed the Governor plans to appeal the decision.

“The Governor agrees with the circuit court’s previous decision declining to issue an injunction, and he disagrees with today’s ruling, which we plan to appeal,” Symmes said in an email.

An appeal of the order would take the matter to the state Supreme Court.

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Last month attorneys representing four condemned death row inmates and lawyers for the South Carolina Department of Corrections and Gov. Henry McMaster spent four days of trial debating whether South Carolina's recently imposed death penalty statute violates the state constitution.

In May 2021, McMaster signed legislation that made the default method of execution the electric chair and added an additional option for the firing squad. This made SC the only state with electrocution as the default method and the fourth state to implement the firing squad.

The state has struggled to obtain drugs to perform executions by lethal injection since 2013. No one in SC has been executed in over a decade.

A civil lawsuit was filed shortly after on behalf of Brad Sigmon and Freddie Eugene Owens, both of Greenville, who were scheduled for execution shortly after the legislation was signed. The lawsuit, filed by Justice 360, a non-profit organization in SC working to reform policies and practices in capital cases, alleged that the electric chair and firing squad methods were cruel, unusual and corporal punishment and prohibited by the state Constitution.

Richard Moore, of Spartanburg, and Gary Dubose Terry, of Lexington, were later added to the case.

When a motion to dismiss the lawsuit was denied in April 2022, the state Supreme Court ordered the trial be completed within 90 days. The order also virtually halted all state executions while the case was heard.

Judge Newman's recent order rules the executions of the four men by electrocution or firing squad permanently barred.

Cruel, unusual and corporal

South Carolina’s constitution bars punishment that is cruel, unusual or corporal.

As referenced in the order, corporal is defined as “pertaining or relating to the body” and for the purpose of the interpretation of the state Constitution “refers to mutilation of the body.”

This language offers “greater protections than those found in the Constitution of the United States,” judge Newman wrote in her order.

During the trial, attorneys called upon expert witnesses to debate the definition of pain and consciousness, as well as what happens to the body when someone is shot or electrocuted.

Colie Rushton, SCDC's director of security and emergency operation, testified that .308 Winchester TAP Urban ammunition, a fragmented bullet, were to be used during firing squad executions. Rushton said his research showed this type of ammunition would cause instantaneous death, as it would break apart upon impact and cause maximum damage to the body.

However, Dr. Jonathan Arden, a forensic pathologist, who testified on behalf of the condemned men, said it would take around 15 seconds after being shot before someone would lose consciousness, during which the person would experience extreme pain.

“In order for a volley of rifle shots to enter the front of the chest and impact and destroy the heart, there's a virtual guarantee that they will not only disrupt other soft tissues, which is a source of pain, but most importantly, they will break bones,” Arden said.

The court reviewed autopsy photos of the last firing squad execution in Utah in 2010 that were introduced as an exhibit. The judge wrote the body was objectively mutilated.

“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,” Judge Newman wrote.

Dr. D’Michelle DuPre, a former police officer and medical examiner, who testified on behalf of SCDC, said her research confirmed that only 34 executions have been carried out by firing squad since 1900, making up less than 1% of all executions. All but one of those took place in Utah.

“… it is a reversion to a historic method of execution that has never before been used by our State and is not used in the overwhelming majority of other states. Thus, execution by firing squad is unusual punishment both nationally and in South Carolina,” the order said.

The court also found death by electrocution as cruel, unusual and corporal.

Only seven men have been executed by electric chair in the state since 1976.

Testimony revealed that during an electric chair execution a voltage sequence in three phases occurs, starting at 2,000 volts for four-and-a-half seconds, 1,000 volts for eight seconds and 120 volts for 120 seconds.

Neither Rushton, nor SCDC director Bryan Stirling, who also testified, could confirm why these voltages were used.

John Wikswo, a professor from Vanderbilt University with expertise in molecular physiology and biomedical engineering, testified for Justice 360 as an expert in on electricity affects the body.

Wikswo said from his research there is no scientific evidence electrocution causes instantaneous or painless death.

"The animal husbandry community, after intense work, has concluded that they would not do to an animal in the slaughterhouse what is done in South Carolina in the death penalty," Wikswo said of physiological research conducted into how cattle react to electricity.

SCDC’s witness, Dr. Ronald Keith Wright, a retired medical examiner, opined that after a high voltage of electricity a person would be unable to feel pain.

“Actually, if I would have been sentenced to die that would be my choice because it doesn't hurt,” Wright said.

However, according to reports about a case regarding Nebraska’s electric chair protocols in 2007, Wright was quoted as stating that was a “high probability” of the heart restarting after one jolt of electricity.

Judge Newman addresses three other states that addressed the constitutionality of the electric chair in her order, Georgia, Nebraska and Florida. Both Georgia and Nebraska also found that the method was unconstitutional.

“The punishment is, at a minimum, no longer viewed as a reliable method of administering a painless death, and the underlying assumptions upon which the electric chair is based, dating back to the 1800s, have since been disproven,” Judge Newman wrote.

“After more than a century of use, it is time to retire the South Carolina electric chair as a violation of the Article I, section 15 of the South Carolina Constitution.”

Kathryn Casteel is an investigative reporter with The Greenville News and can be reached at KCasteel@gannett.com or on Twitter @kathryncasteel.

This article originally appeared on Greenville News: Court says SC can't use firing squad, electric chair in executions