SC Supreme Court hears clashing views on how to execute condemned killers

The S.C. Supreme Court on Tuesday heard spirited arguments about the constitutionality of using the electric chair and firing squads as methods to execute condemned killers on death row.

But after nearly 90 minutes of arguments, the justices — as is usual in most cases — made no ruling. Nor did they indicate when a ruling might be forthcoming.

Justices have plenty to think about. Lawyer Grayson Lambert, arguing for the state, and John Blume, representing four death row defendants, clashed on a host of topics. All five justices weighed in with questions.

Topics aired included the no-win choices by a condemned inmate of how he wants to be killed, the pain caused or not by electricity shooting into a condemned person’s skull, why no state uses hanging any more and whether the bullets fired by a firing squad into a person’s chest cause mutilation. Arguments also included legal phrases long important in death penalty cases, such as “evolving standards of decency,” a concept used by anti-death penalty lawyers to argue that various methods of killing prisoners should be considered outdated and unconstitutional.

The constitutionality of lethal injection, legal in South Carolina, as a method of execution was not directly before the court, and Blume freely conceded his side does not contend that lethal injection is unconstitutional. However, challenges can be brought about the potency, purity and stability of the lethal drugs used in an execution, he told the justices.

“What we want to know is, are the drugs going to do the job, without a horrible event... it might just render them brain dead,” Blume said, adding that death row inmates need to be assured of high quality standards. Currently, verified information about the quality of lethal drugs is kept from condemned South Carolina inmates, said Blume, a nationally-known death penalty lawyer who is a law professor at Cornell Law School.

Lethal injection only became a possibility for death row inmates last year after the S.C. General Assembly passed a bill allowing the state Department of Corrections to keep secret many facts about the deadly chemicals used in executions. For years, pharmaceutical companies, fearing bad publicity, had refused to sell lethal drugs to South Carolina. But now, the state’s new shield law prohibits disclosing details about the drugs.

At one point, underscoring the gory nature of the legal problem before the court, Associate Justice John Few said, “Even the lawful killing of a man by the state is a gruesome endeavor. It’s going to be an awful procedure, and there are issues with the firing squad, electric chair — even lethal injection. So let’s enact a statutory scheme that once this condemned man faces the eventual prospect of execution.... (he) gets to choose his preferred method.”

The case before the justices Tuesday came from four current death row inmates and their lawyers who brought suit in Richland County court more than two years ago, arguing that the two executions available at that time — electrocution and firing squad — were unconstitutional. Among the lawsuit’s defendants are Gov. Henry McMaster, the state Department of Corrections, and its director Bryan Stirling.

The inmates are Freddie Eugene Owens, 45, of Greenville County; Brad Keith Sigmon, 66, of Greenville County; Gary DeBose Terry, 56, of Lexington County; and Richard Bernard Moore, 58, of Spartanburg County. All have been on death row for more than 20 years and have pretty much exhausted their appeals. The last execution in South Carolina was in 2011. There are currently 33 inmates on the state’s death row.

In 2022, after an evidence hearing in their case in which opposing experts from the state and the defense testified, state Judge Jocelyn Newman ruled that executions by electrocutions and firing squad were unconstitutional. Her 39-page ruling meant the state was permanently barred from carrying out executions by either method, at least until the state Supreme Court ruled on the matter.

In her decision, Newman noted that a provision in the state Constitution says, “nor shall cruel, nor corporal, nor unusual punishment be inflicted.” That offers a greater level of protection, she ruled, than a similar provision in the U.S. Constitution, which only bans “cruel and unusual” punishments.

She also wrote that 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” in the state. And there is no evidence that the electric chair causes a pain-free death, she wrote.

Associate Justice John Kittredge tore into Newman’s ruling on Tuesday, calling it a “scorched earth order.... just riddled with errors.”. For one thing, Kittredge said, Newman wrote she found no evidence that death by the electric chair was painless and instantaneous.

“Of course, there’s plenty of evidence,” Kittredge said, explaining that Newman may have found evidence presented to her about a pain-free quick death to not be credible, but such evidence was produced at a hearing before her.

Lambert urged justices to reverse Newman’s order because she erroneously “applied a novel legal test” about how to weigh the state’s constitutional provision banning cruel, unusual and corporal punishments.

Moreover, Newman wrongly analyzed the evidence before her and reached incorrect conclusions, Lambert said.

Also, Lambert said, all three methods of execution — lethal injection, electric chair and firing squad — are now available to inmates, and all are constitutional.

“If capital punishment is constitutional, there must be a constitutional means of carrying out that punishment. You cannot attack method by method, where the state is left unable to carry out a lawfully imposed death sentence,” Lambert said.

At one point, Blume acknowledged that he, like all anti-death penalty lawyers, was facing an uphill battle.

“I’m here today on behalf of people, most of which are probably going to be executed, and I’m here on behalf of their interests to make sure it is as humane as possible,” Blume said.

Death penalty hearings on this matter have a repetitive quality about them, indicated Chief Justice Donald Beatty as Tuesday’s hearing got underway.

“This is a case we’ve had more than once,” said Beatty. “We have it again today, and we’ll probably have it again.”

Lawyers representing the inmates are Lindsey Sterling Vann, Emily C. Paavola, and Allison Ann Franz, all of Justice 360; John Christopher Mills, of Columbia; Joshua Snow Kendrick, of Greenville; and Blume, who represented numerous defendants in death penalty cases before going on to Cornell Law School.

Lawyers representing McMaster are Thomas Ashley Limehouse Jr., Lambert, and Deputy Legal Counsel Erica Wells Shedd. Attorneys Daniel Clifton Plyler and Austin Tyler Reed represent Stirling and the corrections department.

Following Tuesday’s hearing, Limehouse released a statement on the governor’s behalf saying in part, “This case is not a debate over capital punishment. The state constitution specifically contemplates capital punishment, and the people of South Carolina, through their elected representatives, have codified it into law as a punishment for the most heinous crimes. Rather, this case is about the Executive Branch’s constitutional duty to enforce the law, which means not only carrying out capital punishment but also giving effect to specific convictions and death sentences imposed by juries.”