S.C. Executions S.200 Bill and What Its Passage Means for People on Death Row in S.C.
By Dylan Bitar
May 24, 2021
Dylan Bitar is an SC4CJR Spring 2021 Law Clerk and a rising 3L at the Charleston School of Law
Introduction
On May 14, 2021, South Carolina Governor Henry McMaster signed into law an amendment to the South Carolina Code of Laws relating to death penalty executions that have drastically changed the process for people on death row to select the method of their execution and added the firing squad as an available method for executions.
Senate Bill 200 was introduced into the Senate on January 12, 2021 and sponsored by Senators Greg Hembree (R), Shane Martin (R), Joshua Kimbrell (R), Katrina Shealy (R), Penry Gustafson (R), and Ross Turner (R).
Previously under 24-3-530, the law regarding executions by electrocution or lethal injection accounted for the ability of the convicted person to elect the punishment of death to be administered, and or upon a waiver of election, by electrocution or by lethal injection. [1] That being said, a person who has been sentenced to death would have been required to file their election of either electrocution or lethal injection in writing within fourteen days before the set execution date. [2] If the person on death row fails to file their choice, then the ability to elect for either method would be waived – whereas 24-3-530 held that upon a waiver of election, the penalty method that must be administered is death by lethal injection. [3]
Additionally, if a person on death row was convicted of a federal crime and sentenced to death by electrocution prior to the effective date of this section of laws, the method of execution must be by electrocution unless elected otherwise by the same fourteen day filing process mentioned above. [4]
In South Carolina, the last execution by lethal injection was administered in 2011 [5], since then there has been a ten year stay on executions. [6] Now according to the Department of Corrections, there has been an inability to carry out executions due to the lack of drugs that are required to properly administer death by lethal injection including: the sedative pentobarbital, pancuronium bromide, and potassium chloride. [7]
In fact, an attorney for the state Department of Corrections wrote a letter to the South Carolina Supreme Court in November of 2020 stating that the Department of Corrections has not had the drugs in stock since 2013 when the last of its supplies expired. [8]
A. Changes to S.C. Death Penalty Laws Under S.200
Consequently, with the passing of S.200, the current law directly amends 24-3-530 of the South Carolina Code of Laws adding the following changes: (1) adds the method of death by firing squad to the method of punishment to the election process, (2) includes a provision regarding the availability of the lethal injection, (3) changes the filing period of election of death by electrocution, firing squad, or lethal injection to be made fourteen days before each date of execution, (4) upon a waiver of election the penalty must be administered by electrocution instead of lethal injection, and (5) upon the Department of Corrections determining that the lethal injection is unavailable, the death penalty must be administered by electrocution, or upon election, by the firing squad. [9]
Given the lack of access to the requisite drugs needed for carrying out executions by lethal injection, under the new law, the Director of the Department of Corrections must certify the availability of the lethal injection and even if the lethal injection is found unavailable or unconstitutional by an appellate court, the manner of administering the penalty must be by electrocution or upon election, by the firing squad. [10] That being said, people on death row are now automatically forced to death by electrocution of by firing squad if they choose if the lethal injection is no longer available.
Now, South Carolina is one of four states (Mississippi, Oklahoma, Utah, and South Carolina) to use the firing squad as a method for death penalty executions. [11]
There has yet to be any information regarding the procedure for how South Carolina Department of Corrections plans to administer the death by firing squad.
But, as we see in Utah, one of the three states to use the firing squad for executions [12], the procedure consists of five volunteer sharpshooters, either corrections employees or law enforcement, with four having live ammunition and one having blanks. [13] Then, the person sentenced to death will be strapped to a chair with a hood placed over their face, a target is placed on their chest just above the heart, and if done properly, the sharpshooters should be able to hit the target. [14]
Under section 2 of the new law, if any section, provision, phrase, or word within 24-3-530 as amended to include the changes aforementioned are held to be unconstitutional or invalid for any reason – that holding will not affect the validity or constitutionality of the remaining portions of the act. Arguably, it would take a ruling by the Supreme Court of South Carolina that death penalty as a practice is unconstitutional in order for the entirety of the law to be overturned. Until then, concerns of the constitutionality of the firing squad, if successful, will not change the other effects of the law.
Additionally, as the new law takes effect it applies to all persons sentenced to death prior to and after the effective date of the law. Inherently, the law will more likely affect the current people on death row who have exhausted their appeals resulting in an increase in executions that are carried out.
B. Potential Questions and Lawsuits Raised by the Passing of Senate Bill 200
Two death row inmates, Brad Sigmon and Freddie Owens have filed a lawsuit asking the court whether the newly passed law regarding death penalty executions is constitutional. [15] A major stipulation now is whether it is legal for the state to carry out executions according to the provisions of the new law when they were originally sentenced to death by lethal injection under the previous law. [16]
Again, under the previous law death by lethal injection was the default mode of execution. But now, the new law makes the default method of execution by electrocution, or upon election, by the firing squad. Therefore, these people who were convicted or sentenced to death originally elected or by default were sentenced to death by lethal injection are now being forced to die by electrocution under the new law.
A second question that arises from the new law is how quickly will we see executions being carried out, despite the current people on death row who chose or were automatically sentenced to death by lethal injection that are now being forced to death by electrocution – the new mandatory default method. Although the current people on death row may have chosen or automatically been sentenced to death by lethal injection under the previous law, under the amended 24-3-530 Section 2, the new law is supposed to apply retroactively so that the inmates who may have previously been sentenced to death by lethal injection are now to be executed by electrocution. [18]
In this case, Sigmon and Owens have both exhausted all their regular appeals therefore it is likely that their punishments will be the first executions in South Carolina since 2011. Arguably, with the passage of the new law and its ability to apply to sentences retroactively, questions may arise regarding the appeals process now that the manners in which executions are to be administered in South Carolina warrant constitutional questions.
Conclusion
In South Carolina, the ten-year stay of executions was partly caused by the fact that pharmaceutical companies no longer want their products to be used to administer the death penalty by lethal injection.
Previously, South Carolina law regarding executions set forth death by lethal injection as the mandatory default. Given the passage of S.200 as now law, the mandatory default manner in which executions are to be administered is by electrocution. The new law has also added death by firing squad as an available option upon the election of the person sentenced to death.
It is likely that there will be more constitutional questions arising as more people on death row exhaust their regular appeals and are forced to death by electrocution although they may not have elected it previously. As litigation is pending with the suit filed by Sigmon and Owens, we may see where the South Carolina Supreme court stands on the constitutionality of firing squad or the alteration of the mandatory default.
1 Death by Electrocution or Lethal Injection, 24 S.C. Code of Laws §24-3-530.
https://www.scstatehouse.gov/sess124_2021-2022/bills/200.htm
2 Id.
3 Id.
4 Id.
5 Death Row/Capital Punishment, South Carolina Department of Corrections
http://www.doc.sc.gov/news/deathrow.html.
6 Michelle Liu, SC delays execution, citing lack of lethal injection drugs (November 30, 2020)
https://apnews.com/article/south-carolina-courts-executions-931bae9dd612fe341f3c09b0bcd8ff91.
7 Id.
8 Id.
9 Executions, S.200, 124th General Assembly of South Carolina, 2020-2021.
https://www.scstatehouse.gov/sess124_2021-2022/bills/200.htm
10 Id.
11 Laurel Wamsley, With Lethal Injections Harder to Come By, Some States Are Turning To Firing Squads, NPR.org
(May 19, 2021) https://www.npr.org/2021/05/19/997632625/with-lethal-injections-harder-to-come-by-some-states-
are-turning-to-firing-
squad#:~:text=Eight%20states%20allow%20electrocution%3A%20Alabama,authorized%20methods%20in%20each
%20state.
12 Id.
13 Id.
14 Id.
15 Emily Bohatch, Is SC’s new execution law unconstitutional? Death row inmates ask court to weigh in,
Thestate.com (May 21, 2021) https://www.thestate.com/news/politics-government/article251587343.html.
16 Id.
17 Mary Ellen Cagnassola, South Carolina Might Face Lawsuit Over New Law Allowing Death by Firing Squad,
Newsweek.com (May 17, 2021) https://www.newsweek.com/south-carolina-might-face-lawsuit-over-new-law-
allowing-death-firing-squad-1592123.
18 Executions, S.200, Section C.