A SC judge has ruled that execution by firing squad and execution by electrocution violate the SC Constitution, effectively halting executions in SC (until the SC Supreme Court overturns the ruling, which will almost certainly happen).
Below, we will discuss why the death penalty in SC is unconstitutional, including:
- Why execution by electrocution and firing squad violate the SC Constitution’s prohibition on cruel, corporal, or unusual punishment,
- Why SC Code § 24-3-530, which effectively mandates execution by electrocution in SC, is an ex post facto violation, and
- Why § 24-3-530 is unconstitutionally vague and a violation of the Separation of Powers Clause.
Why Did a SC Judge Find that Execution by Firing Squad and Execution by Electrocution are Unconstitutional?
Circuit Court Judge Jocelyn Newman issued an extraordinary Order in Richland County, SC this month, finding that execution by firing squad and execution by the electric chair violate the SC Constitution for a number of reasons including:
- Firing squads and electrocution violate the SC Constitution’s prohibition on cruel, corporal, or unusual punishment,
- SC Code § 24-3-530, which now effectively mandates execution by the electric chair, violates the SC and US Constitutions’ Ex Post Facto Clauses as to defendants sentenced before the amendment,
- SC Code § 24-3-530 violates due process because the amendment is unconstitutionally vague, and
- SC Code § 24-3-530 violates the non-delegation doctrine found in the SC Constitution Art. I, § 8, and the Separation of Powers Clause by vesting “unbridled discretion in Director Stirling to decide the methods of execution.”
Cruel, Corporal, or Unusual Punishments are Unconstitutional Under the SC Constitution
Article I, § 15 of the SC Constitution prohibits cruel, corporal, or unusual punishment:
SECTION 15. Right of bail; excessive bail; cruel or unusual or corporal punishment; detention of witnesses.
All persons shall be, before conviction, bailable by sufficient sureties, but bail may be denied to persons charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event. Excessive bail shall not be required, nor shall excessive fines be imposed, nor shall cruel, nor corporal, nor unusual punishment be inflicted, nor shall witnesses be unreasonably detained. (1998 Act No. 259, Section 2, eff February 17, 1998.)
Like SC’s constitutional right to privacy, this goes beyond and provides greater protection than the US constitution’s Eighth Amendment protection against cruel and unusual punishments, adding a prohibition against corporal punishments.
Execution by firing squad or by electrocution in SC violates all three constitutional prohibitions because they are 1) cruel, 2) unusual, and 3) corporal.
Execution by firing squad is an unusual punishment because:
- A century and a half ago, in 1878, the US Supreme Court recognized that execution by firing squad was used primarily as a military punishment for soldiers and not civilians,
- 50 years ago, in 1972, the US Supreme Court “noted that executions by ‘shooting [had] virtually ceased’ following the adoption of supposedly more humane methods of execution including electrocution and lethal gas. Furman v. Georgia, 408 U.S. 238, 296-97 (1972),”
- Less than one percent of executions in the US have been carried out by firing squads,
- Only 34 executions have been carried out by firing squads since 1900, and all but one of them were in Utah, and
- SC has never used a firing squad as a method of execution.
The court also held that execution by electrocution is an unusual punishment. The court did not provide statistics as with the firing squad but cited prior state court opinions holding that electrocution is unconstitutional and pointed out that, in light of the problems experienced during electrocutions, many states have made lethal injection the default method of execution.
Based on expert testimony at the hearing that inmates often do not immediately die when shot by a firing squad and detailing the physical effects on the body, the court found that execution by firing squad “constitutes torture, a possibly lingering death, and pain beyond that necessary for the mere extinguishment of death, making the punishment cruel.”
The court cited previous state court opinions finding that the electric chair was a cruel and unusual punishment because it “unnecessarily mutilate[s] or disfigure[s] the condemned inmate’s body… whether or not the electrocution protocols are correctly followed and the electrocution equipment functions properly,” leaving inmates’ bodies “burned and blistered with frequent skin slippage from the process” and “the brains of condemned inmates… destroyed in a process that cooks them.”
In SC, as in other states where the electric chair is used, the process causes severe damage to the inmate’s body, and some of that damage occurs before death. Despite the “legal fallacy” that electrocution causes an instant and painless death, there is ample evidence that inmates often survive long enough to “suffer the experience of being burned alive – a punishment that has long been recognized as cruel and unusual.”
Or, in the words of the Supreme Court of Nebraska, the argument that fifteen to thirty seconds “is a permissible length of time to inflict gruesome pain . . . is akin to arguing that burning a prisoner at the stake would be acceptable if we could be assured that smoke inhalation would render him unconscious within 15 to 30 seconds.” Mata, 745 N.W.2d at 278.
If it would be unconstitutional to burn a person alive who is tied to a stake above an open flame, it must also be unconstitutional to burn a person alive who is tied to a chair as electric current burns their body…
Torture is certainly considered cruel and unusual punishment in the United States, and “the affirmative evidence that does exist strongly indicates that in an intolerably large number of cases, judicial electrocution amounts to torture.”
“Corporal” is defined as “pertaining or relating to the body,” and, for purposes of interpreting the SC Constitution, it also “refers to mutilation of the human body.”
Based on expert testimony at the hearing detailing the destruction to the human body caused by a firing squad, the court found that execution by firing squad is “corporal punishment” prohibited by the SC Constitution.
Just as destroying a human body with multiple fragmenting bullets from rifles is certainly “corporal,” the court found that the bruising and charring of an inmate’s body and the cooking of internal organs from electrocution is corporal and therefore prohibited by the SC Constitution.
SC CODE § 24-3-530 Violates the Ex Post Facto Clauses of the SC and the US Constitutions
Both the SC Constitution (Article I, § 4) and the US Constitution (Article I, § 10) prohibit ex post facto legislation “that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.”
SC Code § 24-3-530 violates the Ex Post Facto Clause because, at the time the defendants were sentenced, the expectation was that they would be killed by lethal injection. Since that time, the State of South Carolina has had difficulty acquiring the drugs needed for lethal injection, and so the legislature amended § 24-3-530 to provide for execution by 1) firing squad, 2) electrocution, or 3) lethal injection if available.
The inmate has a “choice” so long as death by firing squad or lethal injection is available. But execution by lethal injection is, according to the Department of Corrections, not available because the state does not have the drugs that are needed. And execution by firing squad is not available because there are no policies or procedures in place to carry out an execution by firing squad (because the passage of this provision in the statute was a political stunt that was never a serious proposition).
This means that the only available method of execution is now execution by electrocution in the electric chair (that one electric chair that the State of South Carolina purchased in 1912).
- 24-3-530 (C) states that, unless the Director of the Department of Corrections determines that execution by firing squad or lethal injection is available, an inmate must be executed by electrocution.
Because death by torture in the electric chair is a more severe punishment than death by lethal injection, the change in § 24-3-530 is an ex post facto violation that increases an inmate’s punishment after their conviction.
The Term “Available” in § 24-3-530 is Unconstitutionally Vague and Violates the Non-Delegation Doctrine in the SC Constitution
- 24-3-530 states that an inmate may choose between firing squad, electrocution, or lethal injection if the Director of the Department of Corrections determines that electrocution or firing squad are “available,” but the statute does not define the term “available” or provide standards by which a court could interpret the term.
The use of the term is a procedural due process violation because it doesn’t give “fair notice to those persons to whom the law applies.” Does “available” mean “present or ready for immediate use,” as the State says, or does it mean “capable of being gotten; obtainable?”
If the state could obtain the necessary drugs but hasn’t taken the steps to do so, is lethal injection “unavailable?”
- 24-3-530 is also unconstitutional because it violates the Non-Delegation Doctrine and Separation of Powers Clause of the SC Constitution – by failing to define the term “available” and by failing to provide standards for determining whether lethal injection is available, the legislature has “vested unbridled discretion in Director Stirling to decide the methods of execution in violation of the non-delegation doctrine of the South Carolina Constitution.”