By Maayan Schechter
The State (Columbia, S.C.)
COLUMBIA, S.C. — The Department of Corrections officials who will oversee executions by the electric chair and firing squad in South Carolina do not have the expertise to know how electric voltages or bullets affect the human body to the point of death, argue attorneys who represent three men awaiting their fates on death row.
Without that expertise, the lawyers say, state officials can’t know whether killing someone by electrocution or a bullet that splits into fragments used to cause “instantaneous” death won’t cause “unacceptable levels of mutilation and damage to the body.”
These arguments are at the center of a Richland County bench trial happening this week that will decide whether South Carolina’s execution law violates the state’s constitution — and whether the three inmates will be put to death.
“What this case is, is ensuring that we don’t inflict cruel, unusual, corporal punishments by electrocuting inmates with an antique contraption or shooting them to death,” attorney Josh Kendrick — who, with attorneys from Justice360 is representing inmates Richard Moore, Freddie Owens and Brad Sigmon — told the court Tuesday.
Judge Jocelyn Newman is considering the case of the three inmates sentenced to death, who’ve challenged the state’s execution methods, arguing the state has not done enough to get the drugs for lethal injection, and that execution by electrocution or by firing squad is cruel and unusual and violates the state constitution.
The inmates have exhausted nearly all of their appeals, and their execution dates have been postponed.
The focus of the multi-day trial isn’t so much what the judge decides, given that lawyers are likely to appeal Newman’s ruling to a higher court. But what’s perhaps more important is the evidence, or “discovery,” about executions the court will see.
Newman on Monday directed the Department of Corrections, via the agency’s lawyers, to hand over all electrocution autopsies as far back as possible despite arguments from state attorney Daniel Plyler that over the past several decades the electric chair has been redesigned and moved from its original location to where it’s currently housed on Broad River Road; therefore, Plyler said, past autopsy reports won’t be reflective of what occurs in the future.
Those autopsies won’t be made public, but were touched on in Tuesday’s hearing during questioning of the plaintiff’s expert witness John Wikswo, a professor at Vanderbilt University who has a background in in biomedical engineering, molecular physiology and biophysics, who testified he believes there’s no proof to show an execution, whether botched or not, results in instantaneous or painless death.
“It is without question that the death penalty is constitutional. They’ve even admitted it; they’re not challenging that,” Plyler told the judge, motioning to the plaintiffs’ table. “And the law on that is it does not guarantee a painless death, just like none of us in this courtroom or in this state are guaranteed a painless death.”
The state has carried out 284 executions since 1912 but only started executing people by lethal injection in 1995. By that year, the facility that housed the electric chair had moved from the now-closed Columbia Correctional Institution to where it’s currently housed at Broad River Correctional Institution.
Lawmakers voted to change the state’s execution law in 2021, due to the corrections department’s inability to obtain the necessary drugs to carry out a lethal injection, which is argued to be a safer and more humane way to kill people.
Drug suppliers have in past years cracked down on selling drugs used for lethal injection so as to avoid being associated with executions. Past legislative attempts to shield those pharmaceutical drug companies, therefore making it easier to buy the necessary drugs, have failed.
The state, which ran out of lethal injection drugs in 2013, has not been able to buy or compound them since, officials have said.
The Legislature, elected publicly by voters, held robust public debate and themselves added the firing squad option — “not in a small courtroom occupied by a select few,” Plyler told the judge.
Corrections Director Bryan Stirling, who was first appointed in 2013 to run the state’s prisons agency — two years after the state’s last execution by lethal injection and more than four years after the last execution by electrocution — told the court he was called to testify before legislators but did not “advocate one way or another.”
“They (legislators) openly declared firing squad an addition to electrocution is the public policy of this state,” Plyler added.
Prison officials testify about electric chair, firing squad protocols
On the stand Tuesday, Stirling told the court he’s never witnessed an execution and did not have a hand in drafting the electrocution or firing squad protocols, leaving the latter to agency experts. Stirling could not say whether the electric chair had been updated over the years.
Stirling said he was not involved in two separate instances in June 2021 and again in April 2022 when the corrections team tested the electric chair. He also said he did not receive a report afterward.
“Do you have the required knowledge to tell us which phase (out of three) the inmate is expected to die?” Kendrick asked.
“I do not,” Stirling replied.
As to the firing squad method, Stirling said he had a “general” understanding of how it works.
“The person is put in a chair, just like the protocol said. ... They’re shot,” Stirling testified. “I’m not trying to make light of this. It’s a very serious thing. They’re shot.”
Colie Rushton, a nearly 49-year veteran of the corrections department who in 2007 became director of the security and emergency operations, said he “inherited” the electrocution protocol and did not know why a certain voltage of electricity was used over another.
Rushton testified the current chair is likely at least the state’s second chair, and when asked whether any changes had been made, said if any changes had been made it would have been to replace a strap. He said he witnessed the chair’s testing and was there “only for observation.”
Asked what level of electricity expertise he had, Rushton said he knows electricity helps keep his home cool at night.
Unlike the electric chair protocols, Rushton testified he had been involved in drafting protocols for the firing squad method using online research and information from officials in Utah, which, like South Carolina, offers the firing squad method of execution.
The Department of Corrections has denied a public records request for the state’s firing squad protocols and any qualifications required of firing squad volunteers, arguing they constitute “security plans and devices” and are therefore exempt from disclosure.
The agency also has said it has no record of any protocols, guidelines, materials or consultants from other states, agencies or institutions that were used in the development of South Carolina’s firing squad execution protocols.
In April, the S.C. Department of Corrections announced the agency could start carrying out the firing squad method at its Broad River facility. To carry out the execution, the agency said volunteer shooters will stand behind a wall and use rifles.
At the time, the department did not say what kind of ammunition it planned to use.
However Rushton, who said he did not attend any specific ballistics-type formal training, told the court Tuesday he came to the decision the agency would use .308 Winchester TAP URBAN ammo, a fragmented bullet, because it expands and causes more “instantaneous” death versus a more solid bullet that could induce a more prolonged death.
“Did you do any research into China’s use of the firing squad? ... How about Iran? Iraq? Egypt?” Kendrick asked Rushton.
“No country outside of the United States,” Rushton said.
The South Carolina Supreme Court has asked Newman to rule within 30 days after the trial ends Thursday.
Plaintiffs attorneys include Hannah Freedman, Josh Kendrick, Christopher Mills and Lindsey Vann. The defense attorneys for the corrections department, Stirling and the governor are Grayson Lambert, Thomas Limeouse, Daniel Plyler and Austin Reed.