South Carolina's Planned Firing Squad Executions Raise Complicated Questions About the Future of the Death Penalty

·10 min read

Credit - Illustration by Richard Mia for TIME

On March 18, the South Carolina Department of Corrections announced that the $53,600 renovation of its death chamber was complete.

For prisoners on death row who choose to face the firing squad, the state installed a metal chair with restraints for the ankles, legs, chest, arms, and head. New protocols say the prisoner will be strapped into the chair with a hood over his head, and a small aim point placed over his heart. The three-person execution team will stand behind a wall fifteen feet away, pointing their rifles through a rectangular opening, aiming with live ammunition. The warden will read the order. The team will fire. Witnesses can watch the grim proceedings behind bullet-resistant glass. Once a doctor declares the prisoner dead, the viewers will be escorted out.

Roughly a year ago, Republican Governor Henry McMaster signed a law requiring condemned prisoners to choose how they’d like to die. Their options are firing squad or electric chair, because the state says it cannot procure lethal injection drugs. Richard Moore, 57, was the first death row prisoner to be given this macabre choice earlier this month. He picked the firing squad, while insisting that both choices before him are unconstitutional. He was scheduled to die on April 29, but his legal has team asked the South Carolina Supreme Court to delay his execution until a state court can rule on whether either method violates the Eighth Amendment’s ban on cruel and unusual punishment. They’ve also asked for a delay so the U.S. Supreme Court can review whether Moore’s sentence is disproportionate compared to similar crimes.

On April 20, the South Carolina Supreme Court temporarily halted Moore’s execution—without providing its reasoning—and two days later did the same for another prisoner, Brad Keith Sigmon, who had not yet chosen his mode of execution.

The fate of both men—and of South Carolina’s new firing squad—remains uncertain. But the limbo reflects the larger arc of the use of the death penalty in the United States, and raises uncomfortable ethical and legal questions about whether a government execution of a citizen can ever be humane. After a series of publicly botched executions by lethal injection in the 2010s—and amid the broader climate of decreasing public support for capital punishment—most companies have refused to sell lethal injection drugs. In response, many states have stopped executing people; only 14 states have executed a prisoner in the past ten years.

Some states have turned to previous methods as an alternative. Last year Arizona made headlines when it “refurbished” its gas chamber from 1949 and gave prisoners the choice between the gas or lethal drugs. Now, South Carolina is bringing back the firing squad. “It is a paradox,” says Robert Dunham, executive director of the nonprofit Death Penalty Information Center. “The reemergence of more visceral and primitive methods of execution is a byproduct of the erosion of capital punishment.”

The irony may be that in the grisly taxonomy of state-sanctioned executions, reviving the shocking spectacle of shooting a prisoner in the heart may be a swifter death than injecting him with a lethal cocktail of chemicals. Firing squads can be considered a more humane option than lethal injection because they come with less risk of a lengthy, painful execution, death penalty experts say. In a 2017 dissent to the U.S. Supreme Court’s rejection of a prisoner’s request to die by firing squad, Justice Sonia Sotomayor wrote that death by firing squad could cause less suffering than lethal injection, which she said “may turn out to be our most cruel experiment yet” in the country’s search for a merciful way to kill its prisoners. And South Carolina Democratic state senator Dick Harpootlian, who amended legislation to propose the option of the firing squad, says he wanted to give prisoners a more humane choice than the 110-year-old electric chair, which would have become the default.

When the state kills a prisoner in the name of justice, it strives to distinguish itself from the person condemned to die, says Corinna Barrett Lain, a law professor at University of Richmond. The government’s goal has long been to make executions appear restrained, even clinical, hence the reliance since the 1990s on lethal injection.“Maintaining the death penalty today comes with a critical proviso,” Lain says. “Executions cannot offend the sensibilities of the people in whose name they’re being conducted.”

As Moore and Sigmon head towards possible executions by firing squad, the public reaction—and the response of the American legal system—could have urgent implications for the future of the U.S. death penalty.

‘The impact on the team was horrific’

Moore, who was nine days away from death when the state Supreme Court temporarily halted his execution, has been incarcerated for more than 20 years.

Some criminal justice reform advocates argue he shouldn’t be on South Carolina’s death row in the first place, much less be the first man facing the firing squad. He was incarcerated for a 1999 robbery and killing in Spartanburg, S.C. Moore wasn’t armed when the robbery began; the convenience store clerk, James Mahoney, had a pistol, and Moore maintains the men struggled over the weapon. Mahoney, who was white, suffered a fatal gunshot wound and died. Moore, who is Black, was convicted of murder and armed robbery by 11 white jurors and one Hispanic juror, and sentenced to die.

Sigmon, who was scheduled to be executed May 13 before the temporary stay, was convicted of murdering his girlfriend’s parents in 2001.

South Carolina has not held an execution for eleven years. State officials say the delay is largely because they cannot not procure lethal injection drugs from pharmaceutical companies. Last year, the state legislature tried to restart executions by proposing legislation making the default method of execution the electric chair. State senator Harpootlian tells TIME he was alarmed by the proposal, having built a career as a prosecutor and knowing what those executions entail. As he puts it: “It’s frying someone to death.” So he proposed offering the firing squad as well, and Governor McMaster signed the amendment legislation in May 2021. “The families and loved ones of victims are owed closure and justice by law. Now, we can provide it,” McMaster said at the time.

Moore, Sigmon, and two other death row prisoners have challenged South Carolina’s new law, arguing that both electrocution and firing squad violate the Constitution’s ban on cruel and unusual punishments. The prisoners’ legal team has also challenged the state’s argument that it was forced to turn to these methods because it cannot procure lethal injection drugs, pointing out that since South Carolina said it lost access to the necessary compounds in 2013, 13 other states and the federal government have carried out 222 lethal injection executions. South Carolina argues that it doesn’t have a shield law hiding the names of companies that sell them the drugs, which 14 other states have in place, so companies are less willing to sell to them.

The Attorney General’s office and the Governor’s office declined to comment on pending litigation.

South Carolina’s firing squad will include three South Carolina Department of Corrections (SCDC) employees carrying rifles. The law prohibits their names from being revealed. If the executions are allowed to go ahead, the state is preparing to provide counseling to both the firing squad and the victims’ families. Karin Ho, the director of the SCDC’s Division of Victim Services, has seen how traumatizing executions can be for corrections officers. She was involved in 52 executions while working in Ohio’s prison system, and now runs SCDC’s Critical Incident Stress Management program (CISM), which includes a peer support network that will be available for employees before, during, and after the execution. Every member of the execution team will be mandated to attend a CISM debrief several days after the event.

Her goal, Ho says, is to ensure employees can build resiliency. She shares the story of an execution in another state that did not go as planned, and the officers who carried it out didn’t have a peer network available to support them. “The impact on the team was horrific,” she says.

The modern death penalty

A firing squad has only been used three times since the U.S. Supreme Court brought back the death penalty in 1976, and the most recent use was more than a decade ago.

All three were carried out in Utah, which has long offered the method in part due to the Church of Jesus Christ of Latter-day Saints’ belief in “blood atonement” at the time, says Deborah W. Denno, a professor at Fordham School of Law. South Carolina has never conducted a firing squad execution in the modern era.

Nearly every method of execution in America has been proposed as a more humane solution to the previous method, says Lain of the University of Richmond. But that hasn’t always proven to be the case. In the late 1970s, states searched for a different method than the electric chair, which had been sold as a quick death but was horrifying to onlookers. States turned to lethal injection; 1,364 lethal injection executions have been carried out since 1976.

Yet, over the decades, problems also arose with lethal injection. States in turn had a harder time accessing the drugs, and began experimenting with new compounds—which critics say increased the amount of botched executions. In 2014, a particularly gruesome execution brought increased scrutiny to the practice. In May 2014, Oklahoma prisoner Clayton Lockett died 43-minutes after he was injected, after writhing, crying out, and attempting to get off the table, according to the New York Times. He ultimately died of a heart attack. (Oklahoma prison officials maintained he was unconscious.)

In the subsequent eight years, support for the death penalty reached record lows, in part as Americans became more informed about the ways systemic racism and poverty can influence death sentences—and learned of the at least 187 wrongful convictions of people on death row, according to the Death Penalty Information Center. President Joe Biden was the first President to be elected after publicly opposing the death penalty. “The death penalty is not the political issue it was 10, 15, 20 years ago,” says John H. Blume, a professor at Cornell Law School and the Director of the Cornell Death Penalty Project.

It remains to be seen whether South Carolina’s newly-formed firing squad will actually execute anyone. A state court could conclude the choice before Moore and Sigmon violates the Constitution, and rule they’ll have to wait to die until the state finds lethal injection drugs. The U.S. Supreme Court could agree to hear Moore’s petition and decide he shouldn’t be on death row in the first place. Regardless of how the legal fight unfolds, the resurgence of the firing squad in the state widens the holes in the argument that the modern death penalty is markedly different—or more humane—than the executions of the past.

“No one should relish the death of any other human being. If we do that, then we’re no better than the people we seek to execute,” says state senator Harpootlian. “And we may be worse.”