Future of SC death penalty now rests with judge

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Published: Aug. 4, 2022 at 6:57 PM EDT|Updated: Aug. 4, 2022 at 7:09 PM EDT
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COLUMBIA, S.C. (WIS) - The future of South Carolina’s death penalty is now in a judge’s hands.

The four-day bench trial in the lawsuit three death row inmates brought against the state, claiming its current methods of execution violate the South Carolina constitution, wrapped up Thursday in a Richland County courtroom.

South Carolina has not executed anyone since 2011, in large part because the state lacks the drugs needed to perform lethal injection, and 34 inmates are currently on death row.

Much of this week’s trial focused on the question of if the ways they could be put to death in South Carolina, the electric chair and the firing squad, constitute cruel, unusual, or corporal punishment.

“Each of the two punishments we’ve considered this week violates all three of those ideas,” Joshua Kendrick, an attorney for inmates Richard Moore, Freddie Owens, and Brad Sigmon, said in closing arguments Thursday. Kendrick is representing them alongside lawyers from Justice360.

The plaintiff attorneys are asking Circuit Court Judge Jocelyn Newman to rule South Carolina’s methods of execution are unconstitutional and block the state from carrying them out.

They presented two days of witness testimony and evidence including execution autopsies with photos, which are sealed to the public but available for Judge Newman to review in her decision.

“The pictures, your honor, that you will see are graphic,” Kendrick said. “They contain cooking and burning, and when you cook and burn people, that is hard to look at, but that is what happens.”

On Wednesday, forensic pathologist Dr. Jonathan Arden was called to the stand as the final plaintiff witness.

Arden, the former chief medical examiner for Washington, D.C., testified that after both execution by firing squad and electrocution are carried out, a person will remain conscious for around 15 seconds or longer, during which time he said they could experience “excruciating” and “horrific” pain.

Kendrick argued Thursday that is what makes them cruel.

“Both of these methods mutilate,” Kendrick said. “You burn and cook people in the electric chair. You destroy the chest of the person in the firing squad.”

Witnesses for the state had testified to the contrary Wednesday, with experts in cardiology and forensic pathology saying people shot directly in the heart, as South Carolina’s firing squad protocol outlines, would lose consciousness immediately and not feel pain.

Another defense witness, Dr. Ronald Wright, testified that under South Carolina’s electric chair protocol — which calls for sending two high-voltage circuits of electricity followed by a low-voltage circuit — a person would become insensate, losing their ability to feel physical sensation, before their brain sends pain signals.

The defense quoted previous opinions from the US Supreme Court on this matter Thursday.

“The Eighth Amendment does not guarantee a prisoner a painless death, something that, of course, isn’t guaranteed for many people, including most victims of capital crimes,” South Carolina Department of Corrections attorney Daniel Plyler said.

Attorneys for the inmates also claimed both means of execution are unusual, saying the firing squad has been used with very little frequency since the Civil War and that no one has been forced to die by electrocution in South Carolina in nearly 30 years.

Lawyers for the state rebutted that argument.

“Their definition of ‘unusual’ and what is a matter of state constitutional law would prohibit any new method of execution. They cannot have it both ways to say, ‘Well, this one hasn’t been used frequently. It’s not OK. But you’re permitted to adopt a new one,’” Grayson Lambert, legal counsel for Gov. Henry McMaster, said.

The Department of Corrections said it has been unable to obtain the drugs needed to carry out lethal injections after its stock expired in 2013, with manufacturers reluctant to be publicly associated with supplying the means necessary to carry out these executions.

After attempts to shield the identities of those manufacturers, if they sold South Carolina lethal injection drugs, had failed at the State House, the state legislature voted in 2021 to bring the firing squad back and make the electric chair the default means of execution, giving inmates the choice between the two.

“A conscious decision was made to use these particular methods, and that decision reflects society’s permanent standards and thinking on a way to carry out an execution,” Lambert said.

The Department of Corrections announced in March the state’s death chamber had been reconfigured and was ready to carry out executions by firing squad, but executions have been tied up in court in the months since.

Attorneys for the inmates asked the judge for mercy in this case Thursday, arguing that is the opposite of the cruelty outlawed in the state constitution.

“The law gives you the ability to grant mercy, to find compassion for those we have the power to punish,” Kendrick said to Judge Newman. “So on behalf of all of us merciful and good people of South Carolina, we want you to have that compassion that the South Carolina constitution requires and ensure these plaintiffs are killed in the most humane way possible.”

Kendrick said neither the electric chair nor the firing squad offered that.

But the state characterized that request as akin to granting clemency, a power reserved for the governor, while plaintiffs also asked the judge to strike down the firing squad the state legislature revived.

“They want you to legislate from the bench and tell the General Assembly they were wrong. They want you to give clemency from the bench and tell the governor that he was wrong. And those are not your roles, with all due respect, as I’m sure you’re well aware,” Plyler said.

After closing arguments ended, Judge Newman said she would deliver a written ruling in the next 30 days, as the South Carolina Supreme Court asked of her.

Newman added her decision would not come right away because of the time necessary to review arguments, testimony, and evidence.

“And a little thinking, praying, hoping, and figuring out to do,” she said.

Regardless of the ruling, the non-prevailing side is all but certain to appeal it.

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