Judge rules SC’s firing squad, electrocution execution methods are unconstitutional

A state judge has ruled South Carolina’s execution methods of electrocution and the newly installed firing squad are cruel and unusual, and both therefore violate the state Constitution.

“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,” Circuit Court Judge Jocelyn Newman wrote in her opinion published Tuesday.

Newman’s 39-page ruling means the state is permanently barred from carrying out executions by either method, at least for the time being.

Newman’s decision is likely to be appealed to the S.C. Supreme Court.

Attorneys for the death row inmates who sued over the execution methods said Tuesday they are “very pleased with the result” and are reviewing the court order.

Gov. Henry McMaster told reporters Wednesday his office plans to appeal Newman’s ruling.

“There have been a lot of cases in the U.S. Supreme Court as well. It’s been explained by the justices a number of times. The question is not the method but the procedure to get to the method,” McMaster said. “... Our Legislature and others have done a good job in fashioning the best we can do for these sentences. I think that our South Carolina law is constitutional.”

The case also names the Department of Corrections and Director Bryan Stirling as defendants because that department is responsible for carrying out executions.

“We will assess the order and determine the next step,” Chrysti Shain, spokeswoman for the state Department of Corrections, said Tuesday.

The state has been unable to carry out an execution for more than a decade because prison officials say they are unable to get the necessary chemicals to carry out an execution by lethal injection. To restart executions, the Legislature in 2021 passed a law that added the electric chair and the firing squad as execution methods should lethal injection be unavailable.

“Lethal injection is the least severe of the three statutorily authorized punishments, and the amended statute effectively revokes that lesser punishment,” Newman wrote. “When Plaintiffs committed their crimes and received their death sentences, the default method of execution was lethal injection, which is according to the Supreme Court of the United States is believed to be the most humane (execution method) available.”

The case before Newman focused on four inmates sentenced to death who challenged the state’s execution methods, arguing South Carolina had not done enough to get lethal injection drugs and the electric chair and firing squad violates the Constitution.

Newman based her decision on testimony after hearing from experts, pro and con, at a four-day trial in early August at the Richland County courthouse.

A firing squad is unconstitutional in South Carolina in part because it is “a reversion to a historic method of execution that has never before been used” by South Carolina and is not used in an overwhelming majority of states, she wrote.

Thus, execution by firing squad is unusual punishment both nationally and in South Carolina, Newman wrote.

The electric chair, she wrote, is unconstitutional because no evidence has proven its high-voltage death is instantaneous and, if so, an inmate “will experience intolerable pain and suffering from electrical burns, thermal heating, oxygen deprivation, muscle tetany, and the experience of high voltage electrocution.”

Judge details firing squad, electrocution methods

South Carolina has carried out 284 executions since 1912, but only started executing people by lethal injection in 1995.

Since 1995, only three people have been executed by electrocution. The last person to be executed was in 2011.

Newman’s order contains a description of how the firing squad and electric chair executions are carried out, noting how a doctor plays a role in the firing squad method.

Previously, the state corrections department had released few details of the exact firing procedure.

Said in court, Newman wrote in her opinion that the inmate is strapped to a backless metal chair, and once the inmate is restrained, an “aiming point” is placed over his heart by a physician and the inmate’s head is covered by a hood.

A three-member team, posited 15 feet from the inmate, is armed with rifles containing .308 Winchester 110-grain TAP urban ammunition, which, described in court, split into fragments. When instructed to do so, the members of the team focus the sights of their rifles on the aiming point, then fire their rifles at the inmate’s chest, Newman wrote.

The firing squad can fire up to three volleys of bullets at the inmate if signs of life are noted, the judge wrote.

Newman also noted that Dr. Jonathan Arden, a pathologist who had studied death by a firing squad, testified in August that a human struck by bullets in the heart would likely feel pain for up to 15 seconds and longer if the bullets weren’t aimed correctly.

For the electric chair method, the state uses the same electric chair it bought in 1912, “although some of the components have been replaced,” Newman said.

When the inmate is restrained, copper electrodes are attached to the right leg and head and 2000 volts are run through the inmate for 4.5 seconds, followed by a second blast of 1000 volts for 8 seconds followed up by 120 votes for two minutes, Newman wrote.

“This process disrupts the inmate’s bodily functions such as respiration and circulation, causes electrical burns, and ultimately results in death,” the judge wrote.

Newman also quoted John Wikso Jr., an expert on biomedical engineering and how the body is affected by state-sanctioned electrocutions, noting he testified that there is no way to know for sure that the first jolt of electrocution is a killing jolt.

Moreover, Wikso testified in August, the skull on which the electrode is placed is not a good conductor of electricity and there is that there is “no scientific evidence that electrocution — particularly in the manner applied by SCDC — causes painless, instantaneous death,” the judge noted.

Newman also found that the provision in South Carolina’s Constitution, under which the inmates brought suit, offers a greater level of protection than a similar provision in the U.S. Constitution, which only prohibits “cruel and unusual punishments.”

South Carolina’s Constitution says “nor shall cruel, nor corporal, nor unusual punishment be inflicted.”

Plaintiffs attorneys included Hannah Freedman, Josh Kendrick, Christopher Mills and Lindsey Vann. The defense attorneys for the corrections department, Stirling and McMaster are Grayson Lambert, Thomas Limehouse, Daniel Plyler and Austin Reed.

Reporter Joseph Bustos contributed to this report.