Freddie Eugene Owens v. Bryan P. StirlingFreddie Eugene Owens v. Bryan P. Stirling
REVERSED
Senior Legal Counsel William Grayson Lambert, Chief Legal Counsel Thomas Ashley Limehouse Jr., and Deputy Legal Counsel Erica Wells Shedd, all of Columbia, for Appellant-Respondent
John H. Blume, III, of Ithaca, NY; Lindsey Sterling Vann, Emily C. Paavola, Breedan Matthew Van Winkle, and Allison Ann Franz, all of Justice 360; John Christopher Mills, of J. Christopher Mills, LLC, all of Columbia; and Joshua Snow Kendrick, of Kendrick & Leonard, P.C., of Greenville, for Respondents-Appellants.
John Laffitte Warren, III, of Law Offices of Bill Nettles, of Columbia, for Amicus Curiae Concerned Public Health Professionals, Scientists, Former Regulators, and Educators. Howard Walton Anderson, III, of Truluck Thomason LLC, of Greenville, for Amicus Curiae Pharmaceutical Manufacturers.
JUSTICE FEW: This is a challenge by four condemned inmates to the constitutionality of section 24-3-530 of the South Carolina Code (Supp. 2023), which sets forth three alternative methods by which the State of South Carolina may carry out the inmates’ death sentences. The inmates do not contend the section violates the Constitution of the United States. We hold section 24-3-530 does not violate the South Carolina Constitution.
I. Background
The death penalty for murder has been an important part of our criminal justice system since the founding of South Carolina as a colony in 1670. As the four inmates point out in their brief, “For most of South Carolina‘s history, executions were carried out by hanging.” In 1912, joining a national trend toward a less inhumane manner of executing an inmate, South Carolina adopted electrocution as the sole method of carrying out the death penalty. Act No. 402, 1912 S.C. Acts 702, 702 (codified at
Beginning in the late 2000s, however, it became increasingly difficult for South Carolina and other states to acquire the drugs necessary to carry out the death penalty by lethal injection. The Supreme Court of the United States explained that this “practical obstacle” to the use of lethal injection resulted “as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences.” Glossip v. Gross, 576 U.S. 863, 869-70, 135 S. Ct. 2726, 2733, 192 L. Ed. 2d 761, 769 (2015). The inability to obtain the drugs brought capital punishment to a halt in South Carolina because the 1995 version of section 24-3-530 made lethal injection the default method of execution.2
“Until recently,” according to the State‘s brief, South Carolina “had, for almost a decade, been unable to obtain the drugs necessary to carry out an execution by lethal injection.” According to our research, South Carolina has not executed anyone by lethal injection since 2009. In 2021, in an effort to address the unavailability of the necessary drugs, and yet enable the State to carry out the sentence of death for inmates upon whom that sentence was lawfully imposed, our General Assembly again amended section 24-3-530, this time to permit condemned inmates a choice between three alternative methods of execution. Act No. 43, 2021 S.C. Acts 163, 164. Act 43 added subsection 24-3-530(A), which provides, “A person convicted of a capital crime and having imposed upon him the sentence of death shall suffer the penalty by electrocution or, at the election of the person, by firing squad or lethal injection, if it is available at the time of election ....”
Act 43 became effective on May 14, 2021. 2021 S.C. Acts at 165. On May 27 and June 1, 2021, the Clerk of this Court—fulfilling the ministerial responsibility set forth in section 17-25-370 of the South Carolina Code (2014)—issued a Notice of Execution in Sigmon‘s and Owens‘s cases, respectively. On June 11, the Director of the Department of Corrections—Appellant-Respondent Stirling—filed an affidavit with this Court stating, “I hereby certify that, as of this date, the only statutorily approved method of execution available . . . is
On June 16, 2021, this Court entered a stay of execution in both cases and directed our Clerk “not to issue another execution notice until the State notifies the Court that the Department of Corrections . . . has developed and implemented appropriate protocols and policies to carry out executions by firing squad.” On March 18, 2022, Stirling wrote the Attorney General asking that he notify this Court “the Department of Corrections . . . has developed and implemented appropriate protocols and policies to carry out executions by firing squad.” On April 7, our Clerk issued a Notice of Execution in Moore‘s case. We later issued a stay of that Notice of Execution.
II. Procedural History
On May 17, 2021—shortly after the enactment of Act 43—Owens and Sigmon brought this declaratory judgment action in circuit court challenging the constitutionality of section 24-3-530. Terry and Moore joined the action later. At the direction of this Court, the circuit court conducted a trial in August 2022. Stirling remained unable to obtain the drugs at the time of trial. At the beginning of trial, the circuit court denied the inmates’ discovery request “asking the State to supply discovery information describing the State‘s efforts to obtain the drugs needed for lethal injection.” Owens v. Stirling, 438 S.C. 352, 356-57, 882 S.E.2d 858, 860 (2023). At the conclusion of trial, the circuit court ruled the Act unconstitutional. 438 S.C. at 358, 882 S.E.2d at 861. “Specifically, the court declared that (1) carrying out executions by either firing squad or electrocution violates the prohibition on the infliction of cruel, corporal, or unusual punishment in article I, section 15 of the South Carolina Constitution; (2) . . . the ‘right to elect’ his method of execution when alternatives are deemed ‘available’ . . . is unconstitutionally vague and an improper
On appeal, this Court reversed the discovery ruling, remanded that issue to the circuit court, and held “the remainder of the appeal in abeyance pending the circuit court‘s resolution of the discovery issue.” 438 S.C. at 354, 882 S.E.2d at 859.
While the case was on remand to the circuit court, our General Assembly enacted and the Governor signed Act 16 of 2023, 2023 S.C. Acts 41, which amended section 24-3-580 of the South Carolina Code (Supp. 2022) to, among other things, forbid the disclosure of any information regarding the State‘s acquisition of drugs for use in carrying out an execution by lethal injection. The parties refer to the amended section as the “shield statute.”
On September 19, the State notified this Court, “Once [the Department of Corrections] had the benefit of the shield statute, [the Department] was able to secure the drugs needed for carrying out an execution by lethal injection.” The State then filed a motion with this Court to lift the abeyance of the appeal, dismiss the case, and “direct [our] Clerk to issue notices of execution under section 17-25-370.” In an order entered October 31, we denied the motion to dismiss, lifted the abeyance, vacated the remand to circuit court, and set the case for February 6, 2024 to “rehear arguments on the merits” of all remaining issues.
III. Standard for Decision
Our standard for decision when considering the constitutionality of a statute requires that we presume the statute is constitutional; we must uphold the statute unless we find
As to factual questions on which the constitutionality of the legislation may depend, we defer to the factual findings of the General Assembly. Richards v. City of Columbia, 227 S.C. 538, 560-61, 88 S.E.2d 683, 694 (1955). In optimal circumstances, the General Assembly will make express findings of the facts necessary to support the legislation. See, e.g., Bauer v. S.C. State Hous. Auth., 271 S.C. 219, 230, 223, 246 S.E.2d 869, 875, 871 (1978) (noting the General Assembly made express findings of fact that some citizens “are suffering from a shortage of safe and sanitary housing which they can afford” in support of Act 76 of 1977 which “empowers the [State Housing] Authority to engage in a variety of programs designed to provide affordable ‘sanitary and safe residential housing’ for persons and families of low and low to moderate income“). As we observed in Richards, however, the General Assembly does not always make express factual findings in support of legislation. We stated, “there are many instances
Legislative findings—express or presumed—are subject to judicial review, “and the court may consider extrinsic evidence for this purpose.” Id. In this case, the circuit court made its own findings of fact based on evidence presented at trial. When the circuit court considers extrinsic evidence and makes factual findings for the purpose of determining the constitutionality of a statute, we will respect the circuit court‘s findings, as it was that court which heard the evidence first-hand. However, we will not defer to the circuit court‘s findings regarding facts necessary to support the legislation simply because there is some evidence to support the findings. Cf. State v. Frasier, 437 S.C. 625, 633-34, 879 S.E.2d 762, 766 (2022) (acknowledging the long-standing principle that “we review the trial court‘s factual findings for any evidentiary support” when considering whether law enforcement has violated the Fourth Amendment).
In Frasier and many other cases involving a criminal defendant‘s request to suppress evidence based on alleged unconstitutional police action—as opposed to the constitutionality of legislative action in enacting a statute—we have repeatedly held we will defer to circuit court findings of fact, so long as they are supported by some evidence. See, e.g., Frasier, 437 S.C. at 632, 879 S.E.2d at 765 (“Historically, we have repeatedly noted that appellate courts review an appeal from a motion to suppress based on a violation of the Fourth Amendment under the deferential ‘any evidence’ standard.“); State v. Miller, 441 S.C. 106, 119, 893 S.E.2d 306, 313 (2023) (holding “the trial court‘s factual findings regarding voluntariness” of a confession are reviewed “for any evidentiary support“). In State v. Jones, 440 S.C. 214, 238-39, 891 S.E.2d 347 (2023), cert. denied, 144 S. Ct. 1012, 218 L. Ed. 2d 176 (2024), for example, we reviewed the trial court‘s factual finding regarding the purpose for a highway checkpoint conducted by law enforcement officers. 440 S.C. at 238-39, 891 S.E.2d at 359-60. We upheld the trial court‘s factual finding that “the primary purpose of the checkpoint was highway safety, not general crime prevention” because there was evidence to support the finding. 440 S.C. at 240, 891 S.E.2d at 361. In Frasier, Miller, Jones, and the many other cases in which we applied this “any evidence” standard for reviewing factual findings, the findings related to the unique facts of that individual case—who did what, when, where, for what purpose, and to whom.
The trial court‘s factual findings in this case are different. The findings in this case do not relate to the unique facts of these cases, which facts all became final over the course of the litigation cited above in note 1. The circuit court‘s findings here relate, rather, to facts—primarily medical and scientific in nature—that are universally true or untrue. They are what the law calls “legislative facts.”4 For example, the extent to which electrocution or the firing squad pose a risk of unnecessary and excessive pain to a condemned inmate does not differ from Owens‘s case to Sigmon‘s, Terry‘s, or Moore‘s, nor will the risk of such pain vary from an execution in South Carolina to one in Utah or Idaho. The trial court‘s findings on the medical and scientific factual issues in this case, therefore, do not fit within the category of factual findings we addressed in Frasier, Miller, Jones, and other cases.
In a challenge to the constitutionality of a statute, it is legislative findings—to the extent they are expressed or may be fairly presumed—to which the law requires we defer, not circuit court findings. Richards, 227 S.C. at 560-61, 88 S.E.2d at 694. That deference requires the courts to uphold legislative findings unless they are
“clearly erroneous.” 227 S.C. at 561, 88 S.E.2d at 694; see also Bauer, 271 S.C. at 230, 246 S.E.2d at 875 (upholding legislative findings of fact because we were “unable to say from their face that they are ‘clearly wrong‘” (quoting McNulty v. Owens, 188 S.C. 377, 383, 199 S.E. 425, 428 (1938))). When considering whether legislative findings are clearly erroneous—and thus whether the findings are entitled to deference—this Court will consider all the evidence before us, including any express or presumed legislative findings, the circuit court‘s findings, and the testimony and evidence upon which both legislative and judicial findings were made. This Court will then determine whether it is possible—in light of all the evidence and the applicable law—to find the legislation is constitutional. See Clarke, 177 S.C. at 435, 181 S.E. at 484 (“A statute will, if possible, be construed so as to render it valid.“). As to any facts the law requires the party challenging the statute to prove, see Powell, 433 S.C. at 461, 860 S.E.2d at 346, this Court will determine whether the challenging party has met its burden of proof.
As in all instances, we review the circuit court‘s legal and constitutional conclusions with no deference to the circuit court. See Callawassie Island Members Club, Inc. v. Dennis, 425 S.C. 193, 198, 821 S.E.2d 667, 669 (2018) (“We review questions of law de novo.“); Frasier, 437 S.C. at 633-34, 879 S.E.2d at 766 (holding constitutional questions are questions of law which we review de novo).
IV. Article I, Section 15
We turn now to the merits of the inmates’ contention that section 24-3-530 is unconstitutional. We begin in section IV.A with their argument that “article I, section 15 of the South Carolina Constitution is more protective than the Eighth Amendment.” We then analyze in sections IV.B, IV.C, and IV.D the constitutionality of the individual methods of execution set forth in section 24-3-530, beginning with electrocution, then lethal injection, then the firing squad.5 We will
A
Article I of the South Carolina Constitution is entitled “Declaration of Rights” and section 15 is entitled “Right of bail; excessive bail; cruel or unusual or corporal punishment; detention of witnesses.” The text of the section provides, in part, “Excessive bail shall not be required, . . . nor shall cruel, nor corporal, nor unusual punishment be inflicted . . . .” The inmates argue the use of the disjunctive phrase “nor shall cruel, nor corporal, nor unusual” in article I, section 15—as opposed to the conjunctive phrase “nor cruel and unusual punishments inflicted” in the Eighth Amendment to the United States Constitution—indicates the framers of the South Carolina Constitution intended to provide “more protection than its federal counterpart.” The State does not seriously challenge the argument, stating in its brief, “Indeed, no one disputes that article I, section 15 includes ‘corporal’ and uses ‘or’ while the Eighth Amendment does not include ‘corporal’ and uses ‘and.‘”
We decline to determine the extent to which article I, section 15 provides “more protection” than the Eighth Amendment because in this case the inmates made no Eighth Amendment claim. It is unnecessary, therefore, that this Court compare the two provisions. In the analysis that follows—pursuant to the text of our constitutional provision—we proceed to determine whether section 24-3-530 or any of the specific provisions within it “inflict” either “cruel,” “corporal,” or “unusual” punishment. If section 24-3-530 does any one of these, we must find the section unconstitutional.
We have not had the opportunity to determine the constitutionality under the South Carolina Constitution of any particular method of carrying out the death penalty. In State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991), however—a case in which article I, section 15 was not expressly argued—we stated, “The argument that the use of electrocution as a means of inflicting the death penalty constitutes cruel and unusual punishment has been decided adversely to appellants by the United States Supreme Court . . . .” 273 S.C. at 206, 255 S.E.2d at 805 (citing In re Kemmler, 136 U.S. 436, 447-48, 10 S. Ct. 930, 933-34, 34 L. Ed. 519, 524 (1890)). In Allen, we upheld the constitutionality of the death penalty against an article I, section 15 challenge, but did not consider the constitutionality of electrocution as a method of carrying it out. 266 S.C. at 186-87, 222 S.E.2d at 292.6 Because we did not address article I, section 15 in Shaw and we did not consider electrocution in Allen, we now consider for the first time the constitutionality under article I, section 15 of the South Carolina Constitution of carrying out the death penalty by electrocution.
i
We start with the article I, section 15 prohibition on “corporal” punishment and quickly dispense with the notion that any manner of carrying out the death penalty is corporal punishment.
The term “corporal” in relation to “punishment” has never had a precise meaning.7 Originally, the term “corporal” meant in this context something along the lines of physical punishment intended to reform or rehabilitate the person punished as to his own future behavior. Sir William Blackstone explained this point in his Commentaries on the Laws of England in 1769, stating “all corporal punishments . . . are inflicted” for the purpose of “the amendment of the offender
The three purposes of punishment Sir Blackstone discussed in this passage are consistent with what we would today call (1) reform or rehabilitation, (2) general deterrence, and (3) specific deterrence. Corporal punishment is primarily for the purpose of reform or rehabilitation, and of that broad category, corporal punishment is only physical punishment, or punishment that pertains to or relates to the body,8 and that serves the purpose to reform or rehabilitate the offender so that he will not commit the crime again. See, e.g., State v. Hamblin, 4 S.C. 1, 3 (1872) (explaining that the statutory punishment for stealing a cow could no longer include the “corporal infliction” of public whipping because “whipping is abolished“); State v. Nipper, 81 S.E. 164, 165 (N.C. 1914) (describing common law punishments to include “corporal punishments . . . such as branding for manslaughter, cropping the ears for perjury, sitting in the stocks, and flogging“); 4 BLACKSTONE, at *158, *377 (giving examples of punishment “mixed with some degree of corporal pain” such as “whipping, . . . the pillory, the stocks, and the ducking-stool“).
The death penalty—obviously—does not serve the purpose of reforming the offender. Cf. State v. Allen, 386 S.C. 93, 99, 687 S.E.2d 21, 24 (2009) (stating, “The justifications supporting imposition of the death penalty are retribution and deterrence,” and saying nothing of reform or rehabilitation). Therefore, the “corporal punishment” prohibited in article I, section 15 does not include the death penalty. See State v. Lumbrick, 4 N.C. 156, 157 (1814) (criticizing the drafters of a 1777 Act of the newly formed State of North Carolina and stating “the act was penned by a person totally ignorant of
ii
Turning to the prohibition on “cruel . . . punishment” in article I, section 15, we start by acknowledging the reality that there is simply no elegant way to kill a man. See Glass v. Louisiana, 471 U.S. 1080, 1093-94, 105 S. Ct. 2159, 2168, 85 L. Ed. 2d 514, 525 (1985) (Brennan, J., dissenting from the denial of certiorari) (stating “arguments about the ‘humanity’ and ‘dignity’ of any method of officially sponsored executions are a constitutional contradiction in terms“).
South Carolina, however, has a long-established public policy of punishment that includes using the death penalty for the most heinous of crimes. Having maintained that policy for hundreds of years, we long-ago faced this reality—that carrying out the death penalty necessarily includes the act of killing the condemned man. That doing this necessitates some degree of physical pain and suffering on the part of the man is of no surprise, and the necessity of such physical pain and suffering does not render the death penalty unconstitutional. See Bucklew v. Precythe, 587 U.S. 119, 130-33, 139 S. Ct. 1112, 1123-24, 203 L. Ed. 2d 521, 532-34 (2019) (explaining that our history of carrying out the death penalty “tells us that the Eighth Amendment does not guarantee a prisoner a painless death“); Glossip, 576 U.S. at 869, 135 S. Ct. at 2733, 192 L. Ed. 2d at 769 (“And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain.“); State of La. ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S. Ct. 374, 376, 91 L. Ed. 422, 426 (1947) (“The cruelty against which the Constitution protects a convicted man is . . . not the necessary suffering involved in any method employed to extinguish life humanely.“).
This brings us to the meaning of “cruel” under article I, section 15. South Carolina first prohibited “cruel punishments” in our 1790 Constitution.
That foundation begins with Kemmler in 1890, in which the Supreme Court considered a claim by a condemned inmate—who soon became the first person ever executed by electrocution—that “he was sentenced to undergo a cruel and unusual punishment.” 136 U.S. at 439, 10 S. Ct. at 931, 34 L. Ed. at 521. The Supreme Court quoted the Court of Appeals of New York‘s conclusion as to electrocution: “We have examined this testimony and can find but little in it to warrant the belief that this new mode of execution is cruel . . . .” 136 U.S. at 443, 10 S. Ct. at 932, 34 L. Ed. at 522 (quoting People ex rel. Kemmler v. Durston, 24 N.E. 6, 9 (N.Y. 1890)). The Supreme Court then found the Court of Appeals’ conclusion was “plainly right” and affirmed. 136 U.S. at 447, 10 S. Ct. at 934, 34 L. Ed. at 524. Defining “cruel” in this context, the Supreme Court stated,
Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.
Kemmler, 136 U.S. at 447, 10 S. Ct. at 933, 34 L. Ed. at 524;9 see also Resweber, 329 U.S. at 463, 67 S. Ct. at 376, 91 L. Ed. at 426 (discussing an alleged Eighth
Amendment violation and stating, “The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence“); Bucklew, 587 U.S. at 130, 139 S. Ct. at 1123, 203 L. Ed. 2d at 532 (quoting definitions of “cruel” as used in the Eighth Amendment: “Pleased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting” and “Disposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness” (cleaned up) (first quoting 1 Samuel Johnson, A DICTIONARY OF THE ENGLISH LANGUAGE (London, W. Strahan 4th ed. 1773), then quoting 1 Noah Webster, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (N.Y., S. Converse 1828))).
In Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008)—building on the Kemmler foundation—a Supreme Court plurality stated, “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” 553 U.S. at 50, 128 S. Ct. at 1531, 170 L. Ed. 2d at 432-33 (quoting Farmer v. Brennan, 511 U.S. 825, 846, 114 S. Ct. 1970, 1983, 128 L. Ed. 2d 811, 831 (1994)).10 The Baze plurality noted the Supreme Court had previously “explained that to prevail on such a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.‘” 553 U.S. at 50, 128 S. Ct. at 1531, 170 L. Ed. 2d at 432 (quoting Farmer, 511 U.S. at 828, 846 & n.9, 114 S. Ct. at 1974, 1983 & n.9, 128 L. Ed. 2d at 820, 831 & n.9). In Glossip, a Supreme Court majority stated “prisoners cannot successfully challenge a method of execution unless they establish that the method presents a risk that is ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.‘” 576 U.S. at 877, 135 S. Ct. at 2737, 192 L. Ed. 2d at 774 (quoting Baze, 553 U.S. at 50, 128 S. Ct. at 1531, 170 L. Ed. 2d at 432). In Bucklew—still building on the Kemmler foundation—the Supreme Court summarized the historical meaning of “cruel” as those “forms of punishment that intensified the sentence of death with a . . . ‘superadd[ition]’ of ‘terror, pain, or disgrace.‘” 587 U.S. at 133, 139 S. Ct. at 1124, 203 L. Ed. 2d at 534 (quoting Baze, 553 U.S. at 48, 128 S. Ct. at 1530, 170 L. Ed. 2d at 431); see also 587 U.S. at 136-37, 139 S. Ct. at 1126-27, 203 L. Ed. 2d at 536 (stating “when it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment ‘superadds’ pain well beyond what‘s needed to effectuate a death sentence“).
To be clear, we do not rely on Kemmler as precedent for the constitutionality of electrocution. We cite it primarily for its historical significance and we rely on it as a foundation for the meaning of “cruel.”
In their argument that electrocution is cruel, the inmates do not contend the definition of cruel has changed since Kemmler. As counsel for the inmates stated at oral argument, “we are not saying the meaning of ‘cruel’ has changed; the [word] ‘cruel’ means the same now as it meant before.”11 We agree, and hold the definition of the term “cruel” as used in article I, section 15 of the South Carolina Constitution—in the context of a method of carrying out the death penalty—is consistent with the principles set forth above from Bucklew, Glossip, Baze, Resweber, and Kemmler. An inmate challenging his impending method of execution as “cruel” under article I, section 15 must prove there is a substantial risk that the State‘s use of the method to execute him will inflict unnecessary and excessive pain that goes well beyond what is reasonably necessary to carry out a death sentence.
Applying that definition to electrocution in South Carolina, we turn our attention back to 1971, when we adopted the current version of the South Carolina Constitution‘s prohibition on cruel punishment—article I, section 15. In 1971, as
In . . . the 1970s, electrocution was still widely . . . understood to be a relatively painless method of execution . . . . When executions resumed in large numbers in the late 1980s, however, advances in science and medicine began to reveal the truth about the electric chair. Though the scientific and medical realities of death in the electric chair did not change from 1912 to [1995], our ability to understand those realities did.12
Some of the inmates’ testimony, however, and some of the circuit court‘s findings based on it, are absolutely irrelevant to any analysis of the constitutionality of execution by electrocution. For example, the inmates presented expert testimony
There was also considerable testimony that does not relate directly to whether electrocution is cruel. One example of this arises in the inmates’ discussion of “how, precisely, the electric chair causes death,” which the inmates call “one of the main points in dispute” in the case. Addressing fibrillation of the heart—which causes the heart to stop pumping blood—the inmates presented the testimony of Dr. John P. Wikswo Jr. Dr. Wikswo testified that a heart in fibrillation no longer beats with a “beautiful rhythmic contraction from the bottom to the top,” but instead has a current that “travels around the heart in a circle,” causing it to “look[] like a small bag of earthworms just quivering.” Dr. Wikswo and another expert presented by the inmates—Dr. Jonathan Arden—both testified electrical current stimulates the major muscles in the body and that causes them to “tetanize,” which means to cramp or lock up. The inmates also presented evidence the human skull is significantly more resistive to electrical current than the
While this information may be indirectly relevant, it does not address the actual issue in the case—whether electrocution poses a substantial risk of unnecessary and excessive pain that goes well beyond what is reasonably necessary to carry out a death sentence. The State‘s expert—Dr. Ronald Wright—testified that a person executed in the electric chair would feel no pain. He explained that when a person is electrocuted with very high voltage current, they are rendered instantaneously unconscious. See supra note 13. This is, of course, the original theory of the humanity of electrocution—that despite the damage it causes to the body, the condemned inmate feels no pain because the brain is immediately rendered insensate and the heart is almost immediately stopped. See Kemmler, 136 U.S. at 443-44, 10 S. Ct. at 932, 34 L. Ed. at 523 (reciting the original theory of electrocution as “the application of electricity to the vital parts of the human body . . . must result in instantaneous, and consequently in painless, death” (quoting Durston, 24 N.E. at 9)). The question of “how, precisely, the electric chair causes death” might be—as the inmates contend—“one of the main points of dispute,” but the answer to the question is unimportant to our article I, section 15 analysis unless the inmates have connected the point to Dr. Wright‘s—and the State‘s—contention that electrocution causes the brain to quickly become insensate and the heart to almost immediately stop. Until the inmates make that connection, and through it meet their burden of proving electrocution causes unnecessary and excessive pain, the information recited above is interesting from an academic standpoint, but not helpful to our inquiry.
The question that is critical to our inquiry into whether electrocution is “cruel” under article I, section 15 is the extent to which the inmates have proven that electrocution poses a substantial risk of unnecessary and excessive pain. On this critical question, the inmates presented testimony that was inconclusive. The testimony was offered primarily as a response to the State‘s position—articulated by Dr. Wright—that electrocution causes instantaneous loss of all brain function, including the capability of sensing pain. Dr. Wikswo did
Also on this critical question, Dr. Arden explained there are three ways electrocution can cause death, either individually or in combination. He testified: (1) “electric current can . . . interfere with the functioning of the brain,” (2) “electrical current can stop the heart,” and (3) “the passage of electric current through the body and parts of the body can also generate substantial degrees of heat, amounts of heat, and so there can be thermal damage to the body.” As to whether the person dies by the first effect, which Dr. Wright described as the person is rendered instantaneously unconscious—like Dr. Wikswo—Dr. Arden testified he does not know. He stated, “I don‘t think there‘s any way to predict does the current immediately render you unconscious or not.” He then testified, “Well, again . . . , we don‘t really know how this affects people and whether it does -- could render them unconscious or insensate rapidly or immediately or not.”
If a person dies by the second effect—because the heart fibrillates—Dr. Arden testified, the person would remain alive and conscious for approximately fifteen seconds after fibrillation, during which time “the person . . . would have normal consciousness and — and sensation. So if the current is still being applied, then that person would feel the pain and the — the pretty horrific sensation of having electric current going through his body.” As to how long it would take for the heart to stop pumping blood because of fibrillation, Dr. Arden testified there is not “any way to determine whether a judicial electrocution is going to instantaneously cause that complete stoppage of the heart,” but it “has the potential to do that.” If the person dies by the third effect—thermal damage—he testified, the pain would be even worse. He explained, “Basically, I‘m sorry to have to say this so plainly, but you get the
On this critical question, therefore, the State presented Dr. Wright‘s testimony that an inmate will be unable to feel pain because the electrocution immediately “kills the brain.” Drs. Wikswo and Arden both testified essentially that they do not know whether Dr. Wright is correct, nor if he is incorrect, how long it takes before the brain becomes insensate to pain. Dr. Wright also testified that electrocution causes the heart to fibrillate almost immediately. Dr. Arden testified that if the inmate dies by this second effect—the heart is stopped—he will remain conscious and feel pain for approximately fifteen seconds. Therefore, the only way—even under the inmates’ theory of this case—an inmate could possibly feel unconstitutionally cruel pain during an electrocution is if the State and Dr. Wright are squarely wrong as to whether the brain will immediately become insensate and the heart will almost immediately stop. On both points, the inmates’ experts’ testimony—viewed even in the light most favorable to the inmates—is that they do not know. In fact, Dr. Arden
testified, “I do not believe there‘s any reliable method to determine which of these mechanisms is most likely or which one would occur first or if they would occur simultaneously.” Viewing all the evidence in the light most favorable to the inmates,14 the only finding supported by the evidence is that there is unresolved disagreement as to whether the initial electric shock renders the inmate insensate, and thus whether the inmate will suffer any pain.
This takes us back to presumed legislative findings. See Richards, 227 S.C. at 561, 88 S.E.2d at 694 (stating “it is presumed from the mere passage of the act that there was a finding of such facts as were necessary to authorize the enactment“). South Carolina initially adopted electrocution in 1912. In 1995, our General Assembly kept electrocution as an available method of execution, even though the inmate could elect lethal injection. In 1912 and in 1995—as we stated in Richards—the General Assembly “is presumed” from its actions
In light of this decades-long debate, it is inconceivable that our General Assembly did not consider in 2021 whether electrocution causes the brain to quickly become insensate or the heart to stop. Richards requires us to presume that when our General Assembly enacted the current version of
As a final matter regarding whether electrocution is cruel, we turn to the inmates’ argument that the State might “botch” the execution. The circuit court emphasized the potential for electrocutions to “not go according to plan” because of the “inherently unpredictable nature of electrocution and the occurrence of human error.” The circuit court found, “The human body is largely unpredictable and it is not possible to know with certainty, in advance, how any given person will respond to an electrocution in the electric chair on any given day.” We see no constitutional significance in these findings. Any human endeavor carries with it the risk that it will not go as planned. Certainly, the history of capital punishment is replete with incidents of failed executions. In the case of Kemmler himself, on remand from the Supreme Court‘s 1890 decision finding electrocution constitutional, the State of New York “botched” the execution. See Far Worse than Hanging: Kemmler‘s Death Proves an Awful Spectacle, N.Y. TIMES, Aug. 7, 1890 (stating, “Probably no convicted murderer of modern times has been made to suffer as Kemmler suffered. Unfortunate enough to be the first man convicted after the passage of the new execution law ...,” and calling it “an execution that was a disgrace to civilization“). The inmates cite other such incidents in their brief, and early this year the State of Idaho failed to carry out an execution by lethal injection. See Mike Baker, A Botched Execution in Idaho Renews Scrutiny of Lethal Injection, N.Y. TIMES (Feb. 28, 2024), https://www.nytimes.com/2024/02/28/us/idaho-death-penalty-thomas-creech.html (last visited July 24, 2024) (“The failure was the latest in a series of botched executions around the country, often stemming from executioners having trouble finding veins. Amid legal pressures, some states have been
iii
Finally as to electrocution, we turn to the
Nevertheless, we hold electrocution is not “unusual” under
On the other hand, hypothetically, if the difficulties states faced in obtaining drugs to carry out lethal injection lasted for decades—fifty years perhaps—no one would contend upon the renewed availability of the drugs that
Therefore, if a method of punishment or a method of carrying out a form of punishment—has never been used, or has become statistically uncommon, an
C
The next method we address is lethal injection. On this point, the inmates make a limited concession: “Respondents have conceded, and they continue to concede, that execution by lethal injection using a single dose of pentobarbital is constitutional if properly administered using reliable and effective drugs.” The inmates do not concede, however, that
D
We turn now to the firing squad. To begin our discussion of this method of execution, we emphasize that
i
As we explained in section IV.B.i, the “corporal ... punishment” prohibited in
ii
Turning to the prohibition on “cruel ... punishment” in
As to that critical question, the evidence before us convinces us—though an inmate executed via the firing squad is likely to feel pain, perhaps excruciating pain—that the pain will last only ten to fifteen seconds. One of the State‘s expert witnesses—Dr. D‘Michelle DuPre—testified the heart of a person shot by the firing squad would “immediately stop ... beating” and the person would lose consciousness “so quick that they would not experience pain at all.” Another State‘s expert—Dr. Jorge Alvarez—testified a person shot in the heart would be unconscious “in less than ten seconds.” The circuit court found “the inmate is likely to be conscious for a minimum of ten seconds after impact.” Other evidence indicates that unless the shots each miss their mark, the inmate will be unconscious—and therefore insensate to pain—very soon after ten seconds have elapsed. The inmates’ expert Dr. Arden testified “you‘re talking about approximately fifteen seconds from the time of the gunshots to the time of unconsciousness.” Dr. Arden‘s testimony establishes that the outer limit of the period of time in which an inmate will suffer pain—unless there is a massive botch of the execution in which each member of the firing squad simply misses the inmate‘s heart—is hardly more than fifteen seconds.
This evidence is consistent with what is becoming a national consensus. In her opinion dissenting from the Supreme Court‘s denial of certiorari in a recent case, Justice Sotomayor wrote,18
Some might find [the firing squad] regressive, but the available evidence suggests “that a competently performed shooting may cause nearly instant death.” In addition to
being near instant, death by shooting may also be comparatively painless. And historically, the firing squad has yielded significantly fewer botched executions.
Arthur v. Dunn, 580 U.S. 1141, 137 S. Ct. 725, 733-34, 197 L. Ed. 2d 225, 234 (2017) (Sotomayor, J., dissenting from the denial of certiorari) (citations omitted) (quoting Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century, 35 Wm. & Mary L. Rev. 551, 688 (1994)); see also Glossip, 576 U.S. at 880, 135 S. Ct. at 2739, 192 L. Ed. 2d at 776 (“[T]here is some reason to think [the firing squad] is relatively quick and painless.” (quoting id. at 977, 135 S. Ct. at 2796, 192 L. Ed. 2d at 840 (Sotomayor, J., dissenting))); id. at 976, 135 S. Ct. at 2796, 192 L. Ed. 2d at 840 (Sotomayor, J., dissenting) (stating “there is evidence to suggest that the firing squad is significantly more reliable than other methods, including lethal injection“); id. at 977, 135 S. Ct. at 2797, 192 L. Ed. 2d at 840 (Sotomayor, J., dissenting) (discussing the firing squad and stating, “from a condemned inmate‘s perspective, ... such visible yet relatively painless violence may be vastly preferable to an excruciatingly painful death hidden behind a veneer of medication“); Arthur, 580 U.S. at ___, 137 S. Ct. at 725, 733-34, 197 L. Ed. 2d at 225, 233-34 (Sotomayor, J., dissenting from the denial of certiorari) (arguing that condemned inmate Thomas Arthur of Alabama satisfied the Glossip requirement that he “propose a ‘known and available’ alternative method for his own execution” by proposing the firing squad, and stating lethal injection “may turn out to be our most
cruel experiment yet“); Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, C.J., dissenting from denial of rehearing en banc) (“The firing squad strikes me as the most promising [method of execution] ..., causing instant death every time.“).
The ten- to fifteen-second period in which the firing squad might cause an inmate pain comes as close to a “painless death“—not guaranteed by the constitution—as any method of execution is likely to come. We hold, therefore, the firing squad is not “cruel ... punishment” under
We turn now to the question whether permitting an inmate to choose the firing squad as his method of execution is “unusual punishment” under
The progression toward the firing squad is now getting traction in the federal courts. In a recent case from Alabama, condemned inmate Anthony Boyd brought a federal lawsuit in which he argued he should be executed by firing squad. Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 859 (11th Cir. 2017). The district court summarily dismissed the claim, stating the “allegations that execution by firing squad ... entail a lesser risk of pain than Alabama‘s current lethal injection protocol ‘are nothing more than bare-bone legal conclusions unsupported by facts.‘” 856 F.3d at 863. The
In a subsequent case, however, the Eleventh Circuit reversed a district court‘s dismissal of the same claim. In that case, condemned inmate Michael Wade Nance “proposed death by firing squad” as “an alternative method of execution that would reduce his risk of severe pain.” Nance v. Comm‘r, Ga. Dep‘t of Corr., 59 F.4th 1149, 1152 (11th Cir. 2023). The Eleventh Circuit ruled, “Nance has plausibly alleged that execution by firing squad would be a viable and less painful alternative method of execution” to lethal injection “as applied to him,” and remanded his case to the district court for further proceedings. 59 F.4th at 1155-57.20
But the point of our discussion of Boyd and Nance has little to do with the outcome of those cases. The point, rather—also illustrated by many of the quotations recited above—is that despite the fact no executions have ever been carried out by firing squad in South Carolina, and even nationally they are extremely rare, there is a serious discussion developing in this country as to whether the firing squad is a less inhumane method of execution than even lethal injection. In fact, concurring
Boyd ... alleges that Alabama‘s current execution method—lethal injection using midazolam—poses a substantial risk of severe pain, and Alabama does not dispute the sufficiency of those allegations. Accordingly, if Boyd has sufficiently alleged that death by firing squad does not involve such a risk, his allegations support a finding that the firing squad significantly reduces a substantial risk of severe pain. He has done exactly that.
856 F.3d at 882 (Wilson, J., concurring) (footnote omitted).
We remarked earlier that we will not read
As we discussed regarding electrocution, the simple statistical fact a method of execution has not been commonly used will not render the method “unusual.” See Glossip, 576 U.S. at 895, 135 S. Ct. at 2747, 192 L. Ed. 2d at 785 (Scalia, J., concurring) (stating with his usual flair that “unusual” does not mean simply a “decline in use“). Rather, an inmate bringing a constitutional challenge must show that the method is not used because it has been rejected by the citizenry. There is absolutely no evidence the citizens of South Carolina in any way ever rejected the firing squad. In fact, the firing squad has never been used in South Carolina for a valid and easily-understood
V. Other Claims
The inmates make three other claims regarding
A
The inmates argue the use of the word “available” in
(explaining the non-delegation “doctrine is a component of the separation of powers doctrine and prohibits the delegation of one branch‘s authority to another branch” (citing Bauer, 271 S.C. at 232, 246 S.E.2d at 876));
We disagree on both points. We hold the term “available” as it is used in
The term “available” appears in subsections (A), (B), (C), and (E) of
Thus, neither
In their unlawful delegation argument, the inmates contend
The inmates’ statutory interpretation claim is that the terms of
methods ... are available.” To fulfill this requirement, the Director must explain in the affidavit the basis for his determination.23
VI. Constitutionality of Section 24-3-530—Choice
In the prior sections of this opinion, we addressed the constitutionality of individual elements of
To illustrate this point, we turn back to Baze, Glossip, and Bucklew. In those three decisions, the Supreme Court emphasized the definition of “cruel” under the
Summarizing Baze and Glossip, the Bucklew Court explained,
Glossip expressly held that identifying an available alternative is “a requirement of all
Eighth Amendment method-of-execution claims” alleging cruel pain. . . . Distinguishing between constitutionally permissible and impermissible degrees of pain, Baze and Glossip explained, is a necessarily comparative exercise. To decide whether the State has cruelly “superadded” pain to the punishment of death isn‘t something that can be accomplished by examining the State‘s proposed method in a vacuum, but only by “compar[ing]” that method with a viable alternative.
587 U.S. at 136, 139 S. Ct. at 1126, 203 L. Ed. 2d at 536 (quoting Glossip, 576 U.S. at 867, 135 S. Ct. at 2731, 192 L. Ed. 2d at 774) (first emphasis added in Bucklew; second emphasis original in Bucklew).25
To further illustrate the point—that the element of choice significantly changes the constitutional analysis—we consider the Dawson and Mata decisions from Georgia and Nebraska. The inmates in this case rely on these decisions to support their argument that electrocution is unconstitutionally cruel. A careful examination of the opinions in those cases reveals,
In Mata, the Supreme Court of Nebraska held “electrocution as a method of execution is cruel and unusual punishment in violation of the Nebraska Constitution.” 745 N.W.2d at 279.
Both Dawson (2001) and Mata (2008) were decided at a time when states had little difficulty obtaining the drugs necessary to carry out an execution by lethal injection. See Glossip, 576 U.S. at 869-71, 135 S. Ct. at 2733-34, 192 L. Ed. 2d at 769-70 (noting the “practical obstacle” that drugs for lethal injection became unavailable “emerged” soon after Baze in 2008). Thus, at the time of both decisions, Georgia and Nebraska had “a feasible and readily implemented alternative method of execution” that would have—at least according to the inmates’ theory of cruelty in this case—“significantly reduce[d]” the “substantial risk of severe pain” the inmates contend is associated with electrocution. Bucklew, 587 U.S. at 140, 139 S. Ct. at 1129, 203 L. Ed. 2d at 539. In the Georgia case, the legislature actually had adopted lethal injection for
In Dawson, Mata, and essentially all of the litigation that has taken place over whether a particular method of execution is constitutional, the state made the choice as to which method to employ—giving no choice to the condemned inmate—and the question for the courts was whether the state‘s one chosen method is constitutional. In any one of those cases, the element of choice that South Carolina provides in
In South Carolina in 2021, capital punishment had been shut down for years because of the unavailability of the drugs necessary to carry out the death penalty by lethal injection. Because the death penalty is constitutional, there is necessarily a constitutional method of carrying it out. See supra note 25. Stating this constitutional principle differently, the constitution will never prohibit all methods of execution; or, at least one available method is necessarily constitutional. The question faced by our General Assembly in 2021, therefore, was not whether South Carolina could carry out the death penalty in the face of the unavailability of the drugs necessary for lethal injection, but how. One option for the General Assembly would have been to simply designate electrocution, or the firing squad, as our sole method to carry out the lawful sentence of death.
By 2021, however, uncertainty had developed as to what is the least inhumane method of execution. There had been considerable criticism leveled at electrocution, as has been discussed thoroughly in this opinion. As to lethal injection, considerable concerns had been raised as to whether some protocols for it are unconstitutionally cruel. See, e.g., Glossip, 576 U.S. at 949, 135 S. Ct. at 2780-81, 192 L. Ed. 2d at 823 (Sotomayor, J., dissenting) (stating that one protocol for lethal injection is “what may well be the chemical equivalent of being burned at the stake“). Even as to the protocol the inmates in this case concede is constitutional—a single dose of pentobarbital—by 2021, multiple condemned inmates around the country filed constitutional challenges in federal courts, some of which were initially successful. See, e.g., Matter of Fed. Bureau of Prisons’ Execution Protocol Cases, 471 F. Supp. 3d 209, 215, 218 (D.D.C.) (addressing a constitutional challenge by four condemned inmates to the federal government‘s “2019 Protocol” for lethal injection—“a single drug: pentobarbital sodium“—and finding, “The scientific evidence before the court overwhelmingly indicates that the 2019 Protocol is very likely to cause Plaintiffs extreme pain and needless suffering during their executions“), vacated sub nom. Barr v. Lee, 591 U.S. 979, 140 S. Ct. 2590, 207 L. Ed. 2d 1044 (2020).26 On the other hand, there had been considerable commentary on the lack of unnecessary or excessive pain associated with the firing squad, despite the fact—as Justice Sotomayor observed—some “might find [the firing squad] regressive.” With all of this uncertainty as what is, in fact, the least inhumane method of killing another man, “choice” was the constitutional answer.
As we wrote above—repeating long-established law—our standard for decision requires that we presume
VII. Conclusion
We find
REVERSED.
JAMES, J., concurs. HILL, J., concurring in a separate opinion. BEATTY, C.J., concurring in part and dissenting in part in a separate opinion. KITTREDGE, J., concurring in part and dissenting in part in a separate opinion.
JUSTICE HILL: I concur in the results of Justice Few‘s majority opinion but write separately to state my views on several issues.
First, I address the standard of review. When a court confronts a constitutional challenge to a statute, I agree that we must treat “legislative findings” different than findings of fact made by trial judges in routine cases. Justice Few‘s discussion on this point is persuasive. Much of the case law concerning legislative findings arises in the context of due process challenges to economic legislation, where a key issue is whether the legislation has a “rational basis.” The inmates’ challenge here is based purely on
Second, in my view, the meaning of “cruel” as used in
I cannot join either Justice Few‘s or Justice Kittredge‘s reasoning regarding “unusual.” Both make logical leaps concerning the beliefs of South Carolina‘s citizens based on what is, at least to me, insufficient evidence. However, I do agree with Justice Kittredge that the “choice” option in
I disagree with Justice Few‘s opinion that to show a method of execution is “unusual,” the inmate must prove that the method is “out of use because it has been rejected by the citizenry.” I believe all members of the Court agree that hanging is unconstitutional, but under the test proposed by Justice Few, that would be in doubt absent proof of specific rejection of hanging by South Carolina citizens. Justice Few states the people “rejected hanging as a policy determination for its barbaric qualities.” This statement rests on an enormous assumption that the legislature‘s policy choice was also a conscious choice to reject all other methods. Even more troubling, it would seem that under Justice Few‘s test that once the legislature approves a method of execution, it would be impossible for an inmate to show the method has since been rejected by the people. That is the very reason the framers added the protection against cruel and unusual punishment
Fourth, there is no reason for us to address the “evolving standards of decency” issue in this case. The “evolving standard of decency” language is much-maligned and has become a loaded term. The phrase appeared in Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (“[T]he words of the [Eighth] Amendment are not precise, and that their scope is not static. The Amendment must draw from its meaning from the evolving standards of decency that mark the progress of a maturing society.“). The Court in Trop recognized the obvious: that the terms “cruel” and “unusual” are inherently vague.
During the debates on adopting the Bill of Rights during the First Congress in 1789, Representative William Loughton Smith of Charleston, who was educated at London‘s Middle Temple Bar, “objected to the words ‘nor cruel and unusual punishment; the import of them being too indefinite.” 1 Annals of Congress: The Debates and Proceedings in the Congress of the United States at 754 (1834). Samuel Livermann of New Hampshire joined the objection, noting that although “the clause seems to express a great deal of humanity . . . it seems to have no meaning in it . . . .” He did not think the clause necessary and believed it would unduly restrict Congress’ power to define punishments. Id. Nevertheless, the amendment “was agreed to by a considerable majority.” Id.
In 1778, a committee chaired by Thomas Jefferson issued a proposal to reform Virginia‘s criminal laws to make them more humane and reduce the number of offenses punishable by death. Gaye Wilson, Bill 64, TheJeffersonMonticello (May 1999), https://www.monticello.org/research-education/Thomas-jefferson-encyclopedia/bill-64/. Still included among the punishments in his proposal were hanging, gibbeting, the pillory, castration, death by poison, and the cutting of the cartilage of the nose in “a hole of one-half inch diameter at the least.” Id. The proposal was rejected by the Virginia General Assembly. Reporting to Jefferson in Paris, James Madison wrote that the defeat was due to the “rage against horse stealers” who, in the “old bloody code” that was retained, faced the death penalty. Id.
The point is that not even ardent originalists promote the view that the “cruel and unusual” punishment clause must be decided by 18th century standards of decency. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 861 (1989) (Even if it could be shown that public whipping or branding were not considered cruel and unusual in 1791, today they “would not be sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality.“).
Justice Few‘s opinion rejects the idea that the “evolving standard of decency” standard should apply in interpreting
History, custom, and tradition can be essential to understanding many of the vague and open-ended terms used in our constitutions. But courts must guard against a mindless methodology
All of this is to say that when the framers left us with vague terms, they intentionally left interpretation of those terms to the only true power courts have in our republic: our judgment. The Federalist No. 78 (Alexander Hamilton); see also Thompson v. Oklahoma, 487 U.S. 815, 833 n.40 (1988) (“That the task of interpreting the great, sweeping clauses of the Constitution ultimately falls to us has been for some time an accepted principle of American jurisprudence. With the Eighth Amendment, whose broad, vague terms do not yield to a mechanical parsing, the method is no different.“). There are many interpretative tools we may use in exercising our judgment, and in judging broad terms, sometimes no universal waypoint exists. The law is not, to borrow from Justice Holmes, some “brooding omnipresence in the sky” that always provides clear answers. See Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). We should recognize this reality, and appreciate that judging is not capable of being done by a “mere machine.” Letter from Thomas Jefferson to Edmund Pendleton (August 26, 1776).
Fifth, I agree with Justice Few‘s excellent §V, except I would not reach the issue addressed in footnote 23.
Sixth, as to §VI, I would find the inmates’ statutory choice argument is abandoned due to the cursory briefing it received, but even if it was not abandoned, I would find it raises no meritorious constitutional claim.
Seventh, as to the entire majority opinion and particularly §VI, I would urge that we on this Court continue distancing ourselves from the Baze-Glossip-Bucklew test. As Justices Scalia and Thomas noted in their Baze concurrence, this novel reformation of the test for cruel and unusual punishment is far
As I understand it, the Baze-Glossip-Bucklew test requires that to prevail on an
As Justices Scalia and Thomas predicted, the Baze-Glossip-Bucklew repackaging of the
We should be careful not to make the same mistake in interpreting the South Carolina Constitution‘s punishment clause.
CHIEF JUSTICE BEATTY: I concur in part and dissent in part. Four inmates who received capital sentences (“Inmates“) have filed this declaratory judgment action challenging the constitutionality of South Carolina‘s death penalty statute,
I agree with the majority‘s determination that
I. Introduction
A few observations are appropriate at the outset regarding our state constitution, the role of evolving standards of decency in evaluating the challenged punishment, and our standard of review.
A. South Carolina Constitution
Inmates’ specific challenge to the constitutionality of electrocution and the firing squad is based on state law. The South Carolina Constitution uses “nor” in the disjunctive to ban punishment that is “cruel” or “corporal” or “unusual.” As a result, if the punishment violates any one of these three independent prohibitions, it is unconstitutional:
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 retained.
The circuit court found our state constitution provides a second layer of protection, and a greater level, than the provision in the
The foregoing principles have long been recognized in our law. See, e.g., State v. Austin, 306 S.C. 9, 16, 409 S.E.2d 811, 815 (Ct. App. 1991) (“It is firmly established that state courts may interpret their own constitutions in such a way as to expand rights conferred by the Federal Constitution. The principle of federalism envisions two separate and independent judicial systems: federal courts, which construe federal law, and state courts, which construe state law. State courts may, therefore, develop state law to provide their citizens with a second layer of constitutional rights.” (footnotes omitted)); see also State v. Brown, 284 S.C. 407, 411, 326 S.E.2d 410, 412 (1985) (holding castration, which the Court described as “a form of mutilation,” constituted cruel or unusual punishment that is prohibited by
These principles have also formed the basis for this Court‘s observation that the United States Constitution represents the floor, not the ceiling, of state-provided protections. See State v. Forrester, 343 S.C. 637, 643, 541 S.E.2d 836, 840 (2001) (stating the United States Constitution “sets the floor for individual rights while the state constitution establishes the ceiling“). This Court should remain cognizant of the elevated nature of the protections available under our state constitution when considering the questions presented in this appeal.
B. Evolving Standards of Decency
I next note the State maintains this Court should not rely on the “evolving standards of decency that mark the progress
This framework has been used by the United States Supreme Court to evaluate whether punishment is cruel and unusual in violation of the United States Constitution. The sentiment for this framework was originally expressed by the Supreme Court over a century ago. See Weems v. United States, 217 U.S. 349, 373 (1910) (“Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions.... In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be.“); id. at 378 (“The [cruel and unusual punishment] clause of the Constitution, in the opinion of the learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.“); see also Pittman, 373 S.C. at 562 n.4, 647 S.E.2d at 162 n.4 (citing Weems and observing “[t]his has become the touchstone of Eighth Amendment jurisprudence“).
The United States Supreme Court further refined and articulated this standard well over half a century ago, and it has applied it in capital cases. See Trop v. Dulles, 356 U.S. 86, 101 (1958) (holding “the [Eighth] Amendment [banning cruel and unusual punishment] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society“); see also Furman v. Georgia, 408 U.S. 238 (1972) (applying the evolving standards of decency to allegations of cruel and unusual punishment in the context of capital punishment).
The broad language used in the South Carolina Constitution inherently contemplates that the terms must be evaluated in a particular context and in light of the inevitable changes in knowledge, societal norms, and other developments that occur over time. Commentators have often distinguished specific terms, such as “shall” or “must,” which generally have only one understood meaning, from broader terms such as those used in
Moreover, from a practical standpoint, the use of originalism does not remove the element of judicial interpretation (or, as the majority fears, potential bias) present in answering the question, so in these circumstances, originalism holds no special advantage. For example, even using the concept of originalism, the Court would need to decide whether the ban on “cruel” punishment should be based on our collective judgment today of its meaning in 1790, 1865, 1868, 1895, or perhaps 1971.28 There is rarely documentary evidence to definitively
answer upon which all jurists will unfailingly agree. Additionally, there can be no proof of the founders’ opinion of punishments about which they had no knowledge. When punishments once deemed appropriate are no longer countenanced, what changes is not the innate cruelty of the punishments, but society‘s perception of them. The broad terms used in the South Carolina Constitution must be capable of this necessary evolution to give full effect and meaning to their protections, and doing so is in harmony with the founders’ original intent of prohibiting punishments that society deems cruel, corporal, or unusual. See generally Weems, 217 U.S. at 377-78 (noting an example of this evolution is that while some courts once found the punishment of whipping to be “odious, but not unusual” in comparison to the “barbarities of quartering, hanging in chains, castration, etc.,” the same punishment was later held to be cruel and unusual (citation omitted)).
As noted at the outset, this Court has repeatedly characterized the South Carolina Constitution as providing a second layer of protection to its citizens and has explained that this Court may, therefore, interpret our state constitution more broadly than similar or even identical provisions in the United States Constitution. This point accords with the fact that the constitutions of individual states were subject to individual state interpretation before many similar or identical provisions in them formed part of the United States Constitution. See Brennan, supra, at 501-02. The recognition of this additional protection is also supported by this
Although the majority acknowledges that this Court has repeatedly applied the “evolving standards of decency” in our Eighth Amendment cases under the United States Constitution, in a footnote it accepts the State‘s arguments that this standard should be rejected for challenges based on the South Carolina Constitution. The majority also declines to determine the extent to which
Other state courts have also recognized that their state constitution provides a greater level of protection than the United States Constitution and have found no reason to depart from the “evolving standards of decency” used by the United States Supreme Court when they evaluate allegations of “cruel” and/or “unusual” punishments under their state constitutions. For example, the North Carolina Supreme Court recently found that it “is clear from the plain meaning of both terms
Because evolving standards of decency mark the progress of a maturing society, the fact that a method was previously upheld does not mean that it would pass constitutional muster today, a point the United States Supreme Court has specifically recognized:
Our society has [] steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today‘s consensus on lethal injection. . . . [O]ur approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment.
Baze v. Rees, 553 U.S. 35, 62 (2008). I agree with the foregoing observation and am not persuaded there is any justification for South Carolina affording less protection to its citizens.30
It is also important to clarify the lens through which the Court must view this case. This action was brought seeking a declaration that South Carolina‘s death penalty statute,
“A suit for declaratory judgment is neither legal nor equitable, but is determined by the nature of the underlying issue.” Felts v. Richland Cnty., 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991). This appeal presents mixed questions of law and fact. The parties dispute the constitutional validity of a statute, which ultimately presents a question of law that this Court may decide de novo, without deference to the circuit court. See, e.g., State v. Mata, 745 N.W.2d 229, 267 (Neb. 2008) (“The ultimate issue, whether electrocution violates the constitutional prohibition against cruel and unusual punishment, presents a question of law.“); Catawba Indian Tribe of S.C. v. State, 372 S.C. 519, 524, 642 S.E.2d 751, 753 (2007) (observing questions of law may be decided by this Court with no particular deference to the circuit court). “The party challenging the validity of a statute bears the burden of proving it is unconstitutional.” Powell v. Keel, 433 S.C. 457, 461, 860 S.E.2d 344, 346 (2021). A statute is presumed constitutional, and its repugnance to the constitution must be clear and beyond a reasonable doubt. State v. Neuman, 384 S.C. 395, 402, 683 S.E.2d 268, 271 (2009).
However, “[w]hether a method of inflicting the death penalty inherently imposes a significant risk of causing pain in an execution is a question of fact.” Mata, 745 N.W.2d at 267. Factual findings of the circuit court are entitled to deference if this Court concludes there is evidence in the record to support them. See generally Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018) (clarifying, in a civil action for post-conviction relief, that this Court defers to the circuit court‘s
The majority appears to vitiate the traditional principle of deference to the circuit court‘s factual findings, implying the standard becomes nearly irrelevant when there is a constitutional challenge and that this Court should, instead, defer to either existing or “presumed” factual findings made by the legislature, although it acknowledges there may be circumstances where no such findings have been made. As I read the majority‘s opinion, it essentially opines there is a conflict between existing (or presumed) legislative findings and the circuit court‘s factual findings here, so the legislative findings, presumed or otherwise, must prevail. In my view, the majority has read the circuit court‘s role in this matter too narrowly. The majority relies, in part, on this Court‘s statement “that there are many instances where the constitutionality of an act depends upon pertinent facts and in such a case it is presumed from the mere passage of the act that there was a finding of such facts as were necessary to authorize the enactment.” Richards v. City of Columbia, 227 S.C. 538, 560-61, 88 S.E.2d 683, 694 (1955). To this statement, however, the Court added that “the better rule” is that such findings, if any, are not conclusive, and it noted the role of judicial review in evaluating extrinsic evidence along with any such “legislative” findings:
However, by the better rule, such implied or express finding is subject to judicial review, and the court may consider extrinsic evidence for this purpose, although the statute will not be held unconstitutional unless such (legislative) finding is clearly erroneous.
Id. at 561, 88 S.E.2d at 694 (emphasis added).
In this case, the legislature has made no clear factual findings on the levels of pain or mutilation caused by the methods of execution, or any other relevant points that factor
With these points as guides, the remainder of this opinion will consider the conclusions of the circuit court regarding the ban on punishment that is (1) unusual, (2) cruel, or (3) corporal in the context of both the firing squad and electrocution, although there is occasionally some overlap among these classifications.
II. Ban on Unusual Punishment
The State has challenged the circuit court‘s conclusion that two of the methods of execution under
A. Firing Squad
The circuit court concluded the firing squad is an unusual punishment both in South Carolina and nationally. Among its findings, the circuit court stated it was undisputed that the firing squad has never been used in South Carolina as a method of execution or non-military punishment since the state‘s founding in 1788. The circuit court considered this point particularly notable in light of the fact that the concept of the firing squad is not a newly created or newly discovered means of execution. Thus, by adopting the firing squad, it found South Carolina was effectively going backwards to an outmoded form of execution that has never been utilized in most jurisdictions of the United States.
The State argues that infrequency of use, standing alone, is not the standard for judging whether a punishment is unusual because, if that were the case, any new method of execution could be deemed unusual and constitutionally infirm. I agree with this statement. However, the circuit court‘s analysis was not so narrow. Rather, the court based its reasoning on the additional key factor that the firing squad has been known about for well over a century and, yet, virtually all jurisdictions, including South Carolina, have overwhelmingly eschewed this method of execution in the belief that it was less humane than other methods. In my opinion, the near-universal rejection or avoidance of a long-known execution method qualifies the method as constitutionally “unusual” punishment under any reasonable understanding of the term. The firing
In 2021, when South Carolina amended its death penalty statute, it joined only three other states (Utah, Mississippi, and Oklahoma) that permitted execution by firing squad. See Methods of Execution, Death Penalty Information Center, https://deathpenaltyinfo.org/executions/methods-of-execution (last visited June 6, 2024). Further, although the firing squad has been viewed historically as a military punishment, the Death Penalty Information Center indicates that the United States Military and the United States Government now designate lethal injection as their method of execution. Id. Since the end of the Civil War, only one military service member has been executed by a firing squad, and it occurred in France during World War II. See This Day in History Jan. 31, 1945, The Execution of Pvt. Slovik, History.com, https://www.history.com/this-day-in-history/the-execution-of-pvt-slovik (stating U.S. Army Private Edward Donald Slovik was the last United States military service member executed by firing squad, in 1945, based on a charge of desertion). I note the last execution of a military service member by any method was in 1961, and it was by hanging, not a firing squad. Military Facts and Figures, Death Penalty Information Center, https://deathpenaltyinfo.org/state-and-federal-info/military/facts-and-figures (last visited June 6, 2024).
In my view, the circuit court did not err in finding the firing squad has been—and remains—an unusual method of execution in the United States. I say it “remains” unusual because, after South Carolina added the firing squad and the circuit court issued its decision, Idaho became only the fifth state to allow it, in 2023, but it did so due to the difficulties the state encountered in purchasing drugs for lethal injection. However, lethal injection has remained the primary method of execution in four of the five states authorizing the firing squad, including Idaho; South Carolina is the sole exception. See Methods of
Moreover, a closer inspection of the law in one of those states where the firing squad is authorized, Oklahoma, reveals that it makes the firing squad permissible only as a last (fourth) resort if three other statutory methods of execution preceding it are first declared to be either unconstitutional or unavailable. Specifically, Oklahoma law makes lethal injection the state‘s primary method of execution, followed by nitrogen hypoxia, electrocution, and the firing squad, in that precise order, and a particular method is deemed permissible only if all of the preceding methods in the list are unconstitutional or unavailable. See
The majority in this appeal, however, has determined the firing squad is not unusual. It does so based on a unique framework it has articulated by which a punishment must not only be statistically rare, but also the reason for its lack of use must be that the citizens of South Carolina have disfavored or rejected the punishment before it can be deemed unconstitutional in this state. The majority opines South Carolina has not necessarily been averse to the firing squad; rather, it simply was not considered or needed as an option until the drugs for lethal injection became difficult to procure, so the firing squad does not qualify as unusual under this custom-made standard.
As an initial point, I do not believe South Carolina‘s legislature or its citizens must first acknowledge that a punishment is disfavored for this Court to perform its judicial obligation to assess the constitutional validity of a method of punishment. In other words, a state may not insulate an otherwise unconstitutional
To the extent the majority opines South Carolina simply failed to give the firing squad any consideration until the drugs for lethal injection were not available, this misapprehends the true significance of South Carolina‘s failure to implement the firing squad at any time in its history from its statehood in 1788. I agree with the majority that the lack of lethal injection drugs was the catalyst for the legislature‘s search in 2021 for alternatives. However, I have no doubt, as found by the circuit court, that the reason for the firing squad‘s rarity is because it has been disfavored throughout our nation‘s history, and its use has been limited almost exclusively to the military and the state of Utah. Our legislature was unquestionably aware of that fact and no legislature in South Carolina, until 2021, ever instituted the firing squad as a method of execution. In any event, the State has informed this Court that it now has the drugs needed for lethal injection. Consequently, the lack of the necessary drugs for lethal injection is no longer a relevant factor explaining the decision to authorize the firing squad in this state.
The majority also indicates the firing squad should not be deemed unusual because it is not a “required” method; rather,
In my opinion, the circuit court did not err in finding the firing squad has been—and continues to be—an unusual method of punishment and that it is unconstitutional under South Carolina law. For this reason, I dissent from the majority‘s holding on this issue. Because our views align in this regard, I concur with Justice Kittredge‘s separate opinion, which similarly rejects the framework for considering “unusual” punishment and concludes, as I do, that the firing squad is unusual punishment.
B. Electrocution
South Carolina was the eighth state to adopt electrocution in 1912. It was intended to replace another method that had become disfavored—hanging. See
The circuit court noted SCDC still has the same electric chair that it purchased in 1912, although some components have been replaced over the last century. The circuit court found, however, that “[s]ince 1976, the state has killed just seven men in the electric chair.” This diminished use of electrocution arose after lethal injection became available in the United States, as the latter was universally perceived to be a more humane execution method, and inmates exercised their right to decline the electric chair as their means of execution. South Carolina inherently recognized this point itself nearly three decades ago, when the legislature amended
The disfavored status of the electric chair is also borne out nationally. Although electrocution was once the predominant (or only) method of execution in most states that had the death penalty, according to the Death Penalty Information Center, which tracks legislation in all fifty states, South Carolina was one of only eight states remaining nationwide that still allowed electrocution at the time the circuit court heard this matter. See Methods of Execution, Death Penalty Information Center, https://deathpenaltyinfo.org/executions/methods-of-execution (listing Alabama, Arkansas, Florida, Kentucky, Mississippi, Oklahoma, South Carolina, and Tennessee as the only states having electrocution as a method of execution at that time) (last visited June 6, 2024). Thus, statistically, the electric chair is a relic from another century whose use is confined predominantly to a small contingent of southern states.
It is also notable that South Carolina is the only state in which electrocution is now the primary method of imposing the death penalty; the other states that allow electrocution have expressly moved to lethal injection as their primary means of execution and permit electrocution only as an alternative option. Id. The Supreme Court of Georgia and the Supreme Court of Nebraska ruled in 2001 and 2008, respectively, that the use of the electric chair violated their state constitutional prohibitions against cruel and unusual punishment. Id. Virginia had authorized the electric chair as an option in some cases, but Virginia repealed the death penalty in its entirety in 2021. Id.
The circuit court noted that only three states had ever addressed the constitutionality of electrocution as a method of execution, Florida (1999),31 Georgia (2001), and Nebraska
To reiterate, I agree with the State that rarity alone is not a sufficient ground to find an execution method is unusual. As with the firing squad, however, electrocution is a method that has been available for over a century and, despite the fact that it is otherwise readily available, it has evolved into a disfavored method of execution in most all jurisdictions, as more information has become known about the true extent of the extensive physical damage and mutilation that occurs during electrocution, such as prisoners being engulfed in flames, suffering extensive burns, and bleeding prior to death. Just as burning at the stake or other means of setting a prisoner on fire are no longer considered usual or acceptable punishment, I believe it is not an unreasonable extrapolation to determine that setting alight a prisoner in this manner now carries a similar disfavored status. The only difference, in my view,
is the “modernization” in the last century of the means of ignition—from a match to electric current. The end result of the process, for all intents and purposes, remains the same.The majority opinion concedes the use of electrocution has become a rarity. However, it opines electrocution is not an “unusual” punishment because it has not been disfavored or rejected by our citizens. Rather, the majority opinion suggests it is disfavored only by prisoners, who are choosing lethal injection over electrocution as a method of execution. For the reasons I outlined previously in my discussion of the firing squad, I disagree with the framework used by the majority for
A large majority of the states that allow the death penalty at all either no longer allow electrocution, or allow it only as an alternative means of execution. This fact reflects a consensus on the reduced desirability of electrocution by numerous jurisdictions, and this societal view exists regardless of the preferences of a small subset of prisoners, i.e., those currently on death row. With South Carolina now being the sole state to establish the disfavored method of electrocution as its primary means of execution, I do not believe the circuit court erred in concluding electrocution has become an unusual punishment.32
Although I agree with the majority that the legislature is the entity concerned with public policy and the establishment of crimes and criminal punishment, all criminal punishment is subject to the prohibition in the South Carolina Constitution against unusual (or cruel or corporal) punishment, and whether such punishment violates our state constitution presents a question of law for this Court. See generally People v. Garcia, 213 Cal. Rptr. 3d 217, 224 (Ct. App. 2017) (“Although it is the Legislature‘s role to define crimes and proscribe penalties for them, all statutory penalties are subject to the constitutional
I note that one of the State‘s representatives submitted a supplemental filing advising this Court that, after oral arguments were held in this appeal, Louisiana reintroduced electrocution as an authorized method of execution in that state. See Act No. 5, 2024 La. Acts _____, H.B. 6, Second Extra. Sess. (La. 2024), https://www.legis.la.gov/legis/BillInfo.aspx?s=242ES&b=HB6&sbi=y (reintroducing electrocution and adding nitrogen gas hypoxia as methods of execution, to be used along with the existing method of lethal injection, effective July 1, 2024). The State contends “the fact that another [s]tate has added electrocution to its list of authorized methods confirms that electrocution is not an unusual method of execution.” I disagree that a small contingent of outliers from among fifty jurisdictions establishes any kind of trend that compels this Court to reject the circuit court‘s findings and conclude electrocution has once again become a “usual” form of punishment. Consequently, I agree with the circuit court that electrocution has become an unusual punishment in the United States and dissent from the majority opinion on this point.
III. Ban on Cruel Punishment
The State also challenges the circuit court‘s determination that the firing squad and electrocution violate South Carolina‘s constitutional ban on cruel punishment. I agree with the circuit court‘s conclusion and, therefore, dissent from the conclusion of the majority opinion in this regard.
A. Firing Squad
The circuit court found “[t]he use of a firing squad to accomplish death is cruel.” The court cited a prominent decision of the United States Supreme Court, In re Kemmler, which in 1890 articulated the following definition of “cruel” in this context: “Punishments are cruel when they involve torture or a lingering death . . . . It implies there [is] something inhuman and barbarous,—something more than the mere extinguishment
Various iterations of this standard have been applied in both state and federal courts since that time. For example, in finding electrocution was unconstitutional in 2001, the Supreme Court of Georgia cited the standard in Kemmler for considering cruel (and unusual) punishment, but further explained that the focus under its state constitution and, thus, under Georgia‘s standard, would not be limited to only the unnecessary conscious pain suffered by the prisoner because the evidence established that, as a practical matter, “it is not possible to determine conclusively whether unnecessary pain is inflicted in the execution of the death sentence.” Dawson, 554 S.E.2d at 142-43.
The Georgia court stated, “Such a limited focus would lead to the abhorrent situation where a condemned prisoner could be burned at the stake or crucified as long as he or she were rendered incapable by medication of consciously experiencing the pain, even though such punishments have long been recognized as ‘manifestly cruel and unusual.‘” Id. at 143 (quoting In re Kemmler, 136 U.S. at 446). Rather, the Georgia court reasoned it was also the unnecessary mutilation and disfigurement of a prisoner and the unusualness of the mutilation in light of other alternatives that rendered a particular method manifestly cruel and unusual. See id. (“We cannot ignore the cruelty inherent in punishments that unnecessarily mutilate or disfigure the condemned prisoner‘s body or the unusualness that mutilation creates in light of viable alternatives which minimize or eliminate the pain and/or mutilation.“).
The evidence before the circuit court in the current appeal included SCDC‘s newly created protocols for the establishment of the firing squad, as it had never been a method of execution in this state. The protocols provide the prisoner shall be hooded and strapped to a backless metal chair, with an “aiming point” placed over the heart. A three-member team, armed with rifles containing .308 Winchester 110-grain TAP urban ammunition will be stationed fifteen feet away and will fire at the prisoner‘s chest when directed, and the prisoner‘s vital signs will be checked by a physician every sixty
Autopsy photographs from the last execution by firing squad in Utah were submitted for illustration of the procedure, as Utah is the only state that has used the firing squad in the nearly fifty years since the resumption of the death penalty in the United States following the decision in Gregg v. Georgia, 428 U.S. 153 (1976). See generally Facts About the Death Penalty, Death Penalty Information Center, https://dpic-cdn.org/production/documents/pdf/FactSheet.pdf (last visited June 6, 2024) (indicating only three executions by firing squad have occurred in the United States since 1976, all of which occurred in Utah). The autopsy photographs depict multiple entrance wounds in the prisoner‘s chest and extensive areas of blood on his body and clothing.
Several witnesses testified about the conscious pain and mutilation that can occur during execution by firing squad. Colie Rushton, the Director of Security and Emergency Operations at SCDC, who developed the protocols for the firing squad, testified that he intentionally chose ammunition that breaks apart upon impact because it would inflict the most damage to a prisoner‘s body. The ammunition was expected to cause cavitation (a hole) in the prisoner‘s chest up to six inches in diameter. SCDC‘s protocols allowing the firing of up to three rounds of ammunition can compound the physical damage.
Dr. Jonathan Arden, who was qualified as an expert in forensic pathology, provided information about the injuries caused by the firing squad and electrocution. As to the firing squad, Dr. Arden testified that a prisoner usually does not immediately lose consciousness upon being shot and, even if the heart function was completely disrupted upon the shooting because the ammunition was perfectly aligned with the target, the prisoner would be able to feel pain for up to fifteen seconds. He testified the prisoner would remain sensate for longer than this time, however, under any other scenario that resulted in less than a complete disruption of the heart
Dr. Jorge Alvarez was qualified as an expert in cardiology and agreed that the precise location of the impact from the shooting would determine how long a prisoner remained conscious. While he differed somewhat from Dr. Arden, as he believed consciousness could be less than ten seconds if the shot was placed precisely and exsanguination occurred more rapidly, he acknowledged that the precise location where the bullet strikes the prisoner would impact the time of death. Dr. Alvarez agreed with other witnesses that with the firing squad, death is caused by the disruption of the heart and surrounding vessels, that the heart is located behind multiple bones, including the ribs and the sternum, the sternum covers up to one-half of the heart, and the resulting physical injuries of broken bones and chest cavitation would cause pain to the prisoner. Notably, he agreed with Dr. Arden that the loss of consciousness is not immediate with the use of a firing squad.
The circuit court found extensive mutilation occurs during a shooting by firing squad. The court stated “it is clear that the firing squad causes death by damaging the inmate‘s chest, including the heart and surrounding bone and tissue.” The court added, “This is extremely painful unless the inmate is unconscious which, according to Drs. Arden and Alvarez, is unlikely.” The court found an inmate is likely to be conscious for a period of time, at the least a minimum of ten seconds, but this could be extended if the initial round of ammunition does not fully incapacitate the heart. The court found that, during this time, the inmate would feel pain from the resulting gunshot wounds and the broken bones caused by the impact of the frangible ammunition. The court further found the pain would be exacerbated by any movement by the prisoner, such as flinching or breathing. The circuit court concluded, “This constitutes torture, possibly a lingering death, and pain beyond that necessary for the mere extinguishment of [life], making the punishment cruel.”
In my view, the evidence supports the circuit court‘s determination that the firing squad constitutes cruel punishment. While the State argues extensively about the length of time it takes to die by firing squad and how long the inmate may
In reversing the circuit court‘s determination, the majority focuses on the definition of cruel as causing unnecessary and excessive pain and disregards any element of mutilation or disfigurement. Armed with this narrow view of the execution process, it unflinchingly asserts that its “definition of cruel does not call upon us to analyze what the death chamber looks like after the execution has been carried out.” While denying its relevance, however, the majority acknowledges the “physical violence to the body” that occurs during this method of execution: “There is no consideration in our analysis of whether a method of execution is ‘cruel’ of the dramatic imagery set forth in the circuit court‘s order or the [I]nmates’ brief, such as blood spattered on the walls and pooling on the floor, or other physical violence to the body that occurs simultaneous with or subsequent to the cessation of pain.” (Emphasis added.)
I agree with the Georgia court‘s observation that excessive and unnecessary mutilation of a prisoner is directly relevant to the consideration whether punishment is cruel. Importantly, this is not a unique view. Rather, it accords with this Court‘s own precedent, as we have specifically held that mutilation of a prisoner constitutes cruel and unusual punishment in violation of
By averting its eyes from the objective evidence of the firing squad‘s brutality—the extensive mutilation of the prisoner—the majority also overlooks the unnecessary and extensive pain that is inflicted by this method of execution. The two are inherently intertwined and have no temporal separation,
As for the element of pain, I believe the majority also misapprehends the timeframe testified to of when conscious pain occurs. It highlights expert estimates of ten and fifteen seconds, but ignores the balance of their testimony that this would be the absolute minimum time of consciousness under ideal circumstances where the target is absolutely accurate. The experts stated the time would be longer in the absence of great accuracy. Less than perfect accuracy is anticipated by the firing squad‘s protocols themselves, however, as they establish that execution by firing squad is a process that can extend over ten minutes if the initial volley is insufficient to cause death. Because, as other jurisdictions have indicated, conscious pain is not easily quantified, I believe the majority should have recognized the excessive mutilation that occurs simultaneous with the shooting and its inherent infliction of pain upon the prisoner.
In my view, the circuit court did not err in finding the firing squad causes pain beyond that necessary for the mere extinguishment of life and mutilation of the prisoner. Accordingly, I dissent from the majority‘s holding, as I believe the firing squad qualifies as cruel punishment under state law.
B. Electrocution
The circuit court similarly concluded electrocution as a method of execution constitutes cruel punishment under our
The State maintains “cruel” punishments are those that “intensify” the sentence of death, citing Bucklew v. Precythe, 587 U.S. 119 (2019). It asserts burning at the stake, public display of a corpse, and dismemberment are examples of conduct that could “intensify” an execution and that could, therefore, constitute “cruel” punishment, and it denies that what transpires to a prisoner during electrocution can be something that “intensifies” the imposition of a death sentence. The State further argues that the framers and ratifiers of
In reversing the circuit court, the majority cites the presumption of the constitutionality of a statute and indicates our standard of review requires what appears to be a heightened deference to the legislature‘s findings and the framers’ contemporaneous knowledge, at the time of the latest revision of the constitution, that electrocution was an existing punishment in this state.
I agree that this Court must respect the doctrine of the separation of powers, and it does so here today. While the framers’ views, when ascertainable, are certainly relevant on legislative matters, their past understanding of the constitutionality of a particular provision is not conclusive. If it were, this would itself violate the separation of powers, as the legislative branch of government would be assuming the role of the judicial branch, which is to interpret the law and to declare whether a challenged provision is constitutional. See generally Weems v. United States, 217 U.S. 349, 379 (1910) (
Moreover, the legislature‘s inclusion of an express prohibition against cruel punishment in our state constitution evinces its understanding that a legislature‘s authority to establish both criminal offenses and their punishments is subject to a constitutional limit to prevent the abuse of this great power. This was also the motivation for our nation‘s founders to include the
I agree with the majority to the extent it defines cruel punishment as causing unnecessary and excessive pain that goes well beyond what is reasonably necessary to carry out a capital sentence, but I would also add to this definition South Carolina‘s precedent holding that the mutilation of a prisoner also constitutes cruel (and unusual) punishment in violation of
On the merits of the constitutionality of electrocution under South Carolina law, I fully agree with the majority that In re Kemmler is not controlling. My position is based not just on the age of the decision (the 19th century) on such a changeable
The Kemmler case arose in New York, which was the first state to implement electrocution as an execution method to replace what was considered the more “barbaric” method of hanging. The change came after New York‘s Governor presented the following message to the New York legislature in 1885:
The present mode of executing criminals by hanging has come down to us from the dark ages, and it may well be questioned whether the science of the present day cannot provide a means for taking the life of such as are condemned to die in a less barbarous manner. I commend this suggestion to the consideration of the legislature.
In re Kemmler, 136 U.S. at 444.
The result of the Governor‘s plea was the creation of a three-member commission comprised of a dentist and two attorneys, which ultimately recommended that New York adopt electrocution. See Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century, 35 Wm. & Mary L. Rev. 551, 567–73 (1994) (exploring how electrocution became a method of execution in the United States after its adoption in New York in the late 1800s and the legal flaws underpinning the decision in Kemmler). The author of this historical background on electrocution and the Kemmler decision highlights the battling commercial interests and professional reputations that permeated the commission‘s decision to recommend electrocution over other methods and the lack of any scientific knowledge about the effects of electrocution on the human body at the time of its adoption. Id. at 567–68.
One of the commission‘s members observed a man die from an accidental electrocution and then conducted multiple experiments on animals, and he brought this information into the decision-making process to consider what should replace hanging. Id. at 569–70. Medical professionals opposed the use of medicines/poisons to cause death, which influenced the commission to abandon its consideration of lethal injection as a
Notably, in seeking to challenge the imposition of electrocution, Kemmler was required to prove New York‘s law was unconstitutional beyond a reasonable doubt, whereas modern jurisprudence would impose a lesser burden of proof. Id. at 597. Further, the hearing held in the matter relied in large part upon the testimony of Thomas Edison, who was not in favor of the death penalty, but agreed to testify and state that the use of alternating current (AC) electricity—such as was produced by his business competitor, George Westinghouse—was so lethal that it would produce “instantaneous death,” whereas the direct current (DC) electricity that he promoted was “safe” for community use. See id. at 571. Edison also subsidized experiments on animals to show the danger and death that could result from using his competitor‘s AC electricity. See id. at 574–75. Thus, the reliance on a witness like Edison, who had a strong economic interest in the outcome of the case, has led to questions about the reliability of the result. In addition, the only evidence elicited in the hearing focused on experiments that had been conducted on animals. There was no scientific evidence presented regarding the adverse effects of electricity on the human body. See id. at 571–84.
Westinghouse, whose business was impacted by the perception that his AC electrical service was lethal enough to be used for the electric chair, reportedly helped pay for Kemmler‘s appeals that went up to the Supreme Court, where Kemmler ultimately lost his challenge to electrocution in 1890. Id. at 578. Kemmler was electrocuted and, according to contemporary news reports from execution witnesses, the electrocution of Kemmler, the first ever in the United States, was itself a “botched” execution, as Kemmler caught on fire and his body was charred, leaving the witnesses distraught, with some fleeing the room due to the smoke and odor. Id. at 600-04. Those present reported Kemmler was “slowly roasted to death,” he was “burned and shocked,” and he suffered a
For years, however, courts have cited Kemmler as approving the use of electrocution without revisiting the tenuous foundation for the Supreme Court‘s decision or how the New York courts came to uphold New York‘s use of electrocution as a method of execution in the first instance. New York reportedly adopted the electric chair in no small measure based on the strength of Thomas Edison‘s popularity, as he was regarded as a national hero for his inventions. Edison helped promote the use of Westinghouse‘s “lethal” AC electricity to protect his own competing commercial interests, despite his initial reluctance due to his personal opposition to the death penalty. Thereafter, the Supreme Court again upheld electrocution in an early case from 1915 citing Kemmler that arose out of South Carolina, without revisiting the continued efficacy of Kemmler or examining the effects of electrocution on human beings. See Malloy v. South Carolina, 237 U.S. 180 (1915).
Some six decades later, this Court held in a 1979 case that death by electrocution does not constitute cruel and unusual punishment, apparently analyzing the question under the
The argument that the use of electrocution as a means of inflicting the death penalty constitutes cruel and unusual punishment has been decided adversely to appellants by the United States Supreme Court in In re Kemmler, [136 U.S. 436] (1890).
State v. Shaw, 273 S.C. 194, 206, 255 S.E.2d 799, 805 (1979), overruled by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abolishing the doctrine of in favorem vitae review for capital defendants).
In light of the foregoing, and in accordance with the principle that evolving standards of decency should guide our view of punishment as science and knowledge improve, I believe this Court should reexamine the propriety of electrocution under South Carolina law. In my opinion, the circuit court did not err in concluding electrocution as a means of imposing the death penalty violates the ban on cruel punishment in our state constitution.
As was the case at the time of Kemmler, the experts at the trial of the current matter have confirmed that the effects of electricity upon the human body cannot be predicted with certainty. In addition, experience over the last century has now shown, both in the example of Kemmler himself and with the other prisoners who came after him, that electrocution often results in the prisoner catching on fire and becoming charred during the execution process. The experts in this case have indicated that the body of the prisoner actually heats up and “cooks” during electrocution, resulting in gross disfigurement and mutilation. The executioners cannot even touch a body immediately following electrocution due to the extreme heat generated. The heat typically results in melting the prisoner‘s flesh, which must be scraped from the electric chair after its use. This information was not known at the time the Kemmler case wound through the courts, but it became known when he became the first to experience smoke and charring, based on contemporaneous reports from the eyewitnesses.
The blind reliance on Kemmler has now been discounted, however, by multiple members of the Supreme Court, and several jurisdictions that have specifically reconsidered the propriety of electrocution and have now rejected it as unconstitutional punishment under their state law. They reasoned
For example, in Dawson v. State, 554 S.E.2d 137 (Ga. 2001), referenced previously, the Supreme Court of Georgia observed that it is impossible to conclusively determine whether “unnecessary pain” is inflicted upon a prisoner during an execution, but it asserted its focus under state law “is not limited to the issue of the unnecessary conscious pain suffered by the condemned prisoner.” Id. at 142-43.
The Dawson Court provides a reasonable response to the majority‘s observation here that prisoners are not guaranteed the least-painful method of execution. The Dawson Court stated the fact that there is a method with less pain and mutilation that many states have moved to is an “important factor” in analyzing whether an older method constitutes cruel and unusual punishment:
We cannot ignore the cruelty inherent in punishments that unnecessarily mutilate or disfigure the condemned prisoner‘s body or the unusualness that mutilation creates in light of viable alternatives which minimize or eliminate the pain and/or mutilation. Although the Fourth Circuit Court of Appeals has posited that the “existence and adoption of more humane methods [of execution] does not automatically render a contested method cruel and unusual,” (emphasis supplied), Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995), the fact that a method involving less pain and mutilation exists and that many states have moved to that method because it is perceived to be a more humane manner of execution, id. at 1338, fn. 16, clearly must play an important factor in the determination whether an older method is cruel and unusual punishment.
Id. at 143 (alteration in original).33 The Dawson Court also noted that mutilation occurs even when electrocution is “correctly” performed according to protocols:
[T]he bodies of condemned prisoners in Georgia are mutilated during the electrocution process. This applies whether or not the electrocution protocols are correctly followed and the electrocution equipment functions properly. The autopsy reports show that the bodies are burned and blistered with frequent skin slippage from the process, and the State‘s experts concur that the brains of the condemned prisoners are destroyed in a process that cooks them at temperatures between 135 and 145 degrees Fahrenheit. This evidence . . . establishes the mutilating effects of electrocution.
Id. (footnote omitted).
The Dawson Court concluded that such punishment causing excessive pain and mutilation violated its state ban on cruel and unusual punishment: “Accordingly, we hold that death by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the prohibition against cruel and unusual punishment in Art. I, Sec. I, Par. XVII of the Georgia Constitution.” Id. at 144.
A few years later, in State v. Mata, 745 N.W.2d 229, 278 (Neb. 2008), the Supreme Court of Nebraska also had the occasion to revisit electrocution and found it to be cruel and unusual punishment, as death is not instant as was originally
believed in the 19th century, and it results in the setting alight and charring of prisoners in a manner that is not compatible with evolving standards of decency. The Mata Court rejected the argument from the state as to how many seconds the prisoner would consciously feel pain while being electrocuted, the court stating even fifteen to thirty seconds is not “a permissible length of time to inflict gruesome pain” on a
The Mata Court emphasized that experts frequently cannot quantify the pain from a particular execution method, so it can never be proven with certainty. See id. at 261-62 (“A method of execution violates the prohibition against cruel and unusual punishment if there is a substantial foreseeable risk, inherent in the method, that a prisoner will suffer unnecessary pain. Prisoners are not required to show that their execution will actually result in unnecessary pain. The human body does not respond uniformly to electric current. And, obviously, there are no first-person accounts of an execution that a court can consult. So, courts must necessarily deal with probabilities.” (footnotes omitted)).
The Mata Court found that, in addition to creating a substantial risk of unnecessary pain, electrocution is cruel because of its “infliction of physical violence and mutilation of the prisoner‘s body” that is inconsistent with the evolving standards of decency:
Besides presenting a substantial risk of unnecessary pain, we conclude that electrocution is unnecessarily cruel in its purposeless infliction of physical violence and mutilation of the prisoner‘s body. Electrocution‘s proven history of burning and charring bodies is inconsistent with both the concepts of evolving standards of decency and the dignity of man. Other states have recognized that early assumptions about an instantaneous and painless death were simply incorrect and that there are more humane methods of carrying out the death penalty.
Id. at 278 (emphasis added).
The Mata Court concluded electrocution violated the state constitutional prohibition against cruel and unusual punishment, stating it has become a “dinosaur” in the United States: “Examined under modern scientific knowledge, ‘electrocution has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber of state prisons.‘” Id. (citation omitted). The circuit court in the current
The reality of electrocution is that it does not provide the clean and instant death that Thomas Edison promoted in the late 1800s based on the experiments on animals. That assumption was wrong then and it remains wrong now, as indicated by the studies that are now available on the impact of electrocution on the human body over the last century. Although the State attempts to discredit this evidence, the gross disfigurement and the heating aspects of electrocution that were presented to the circuit court by expert witnesses are indisputable and have been accepted in several other jurisdictions that have considered the matter.34
The State acknowledges that burning prisoners at the stake or other methods of setting individuals on fire would not be allowed today because burning would constitute unconstitutionally cruel punishment. In my view, electrocution, which experts have stated routinely results in flames and plumes of smoke, the charring of the prisoner, and other evidence of burning, is essentially another form of setting prisoners on fire. As one expert stated, electrocution is, simply put, a heating up and cooking of human flesh. This has been true since the first electrocution of the prisoner in Kemmler. The one thing that perhaps remains viable from Kemmler is its statement as to cruel and unusual punishment:
Punishments are cruel when they involve torture or a lingering death . . . . It implies [] something inhuman and barbarous,—something more than the mere extinguishment of life.
In re Kemmler, 136 U.S. at 447. As noted above, I would add to this definition that South Carolina recognizes that mutilation constitutes cruel and unusual punishment.
In
Lastly, I note that electrocution not only causes extreme pain and mutilation to the prisoner, but it also presents risks, both mentally and physically, to those who must assist in this procedure. See Chiara Eisner, They Executed People for the State of South Carolina. For Some, it Nearly Destroyed Them, The State (updated Jan. 4, 2022), https://www.thestate.com/news/local/crime/article254201328.html. This also supports my determination that the effects on the prisoner from electrocution, including burning, melting, charring, disfigurement, and mutilation, are objectively and readily discernible and well beyond that which is necessary to carry out a capital sentence.
For all of the foregoing reasons, I dissent from the majority‘s reversal of the circuit court‘s determination that electrocution constitutes cruel punishment in violation of the South Carolina Constitution. Questions about electrocution have existed since its inception, but any doubts have been repeatedly and summarily brushed aside based on the misguided reliance placed on one habeas corpus case from the 19th century, In re Kemmler. In my view, this Court should join the jurisdictions of Georgia and Nebraska in recognizing electrocution is an unconstitutionally cruel punishment. It is undoubtedly an inhumane relic from another century, along with burning at the stake and other forms of incendiary punishment that are incompatible with the evolving standards of decency.
IV. Ban on Corporal Punishment
The State next challenges the circuit court‘s determination that the firing squad and electrocution are unconstitutional because they violate the state‘s prohibition on “corporal” punishment. I agree with the circuit court‘s ruling and, therefore, dissent from the majority opinion in this regard.
The circuit court defined “corporal” as “pertaining or relating to the body,” citing Merriam-Webster.com Dictionary,
In support of its determination, the circuit court outlined expert testimony from Colie Rushton, the Director of Security and Emergency Operations at SCDC. Rushton testified that, in developing South Carolina‘s protocols for the firing squad, he intentionally chose frangible ammunition because it would inflict maximal damage to a prisoner‘s body upon impact. The circuit court noted Rushton stated he opted for specific ammunition that he understood would cause cavitation in the prisoner‘s chest up to six inches in diameter. The circuit court stated that the protocols called for up to three such rounds of ammunition, compounding the physical damage to a prisoner‘s body.
The circuit court indicated extensive damage was also confirmed by autopsy photographs of the last execution by firing squad conducted in Utah, which were submitted as exhibits in this matter. The photographs depict multiple entrance wounds in the individual‘s chest and a large volume of blood on his body and clothing. The circuit court stated, “The inmate‘s body has been, by any objective measure, mutilated.” The circuit court stated that “SCDC certainly anticipates similar carnage, as it created a firing squad chamber that includes a slanted trough below the firing squad chair to collect the inmate‘s blood and covered the walls of the chamber with a black fabric to obscure any bodily fluid or tissues that emanate from the inmate‘s body.”
The circuit court also referenced Georgia‘s decision holding electrocution constitutes cruel and unusual punishment to support its determination that electrocution results in mutilation of the body and is, therefore, corporal. See Dawson v. State, 554 S.E.2d 137, 143 (Ga. 2001) (holding the
The State summarily argues all capital punishment is, inherently, “corporal,” as it results in the death of the body, and capital punishment is allowed under our state constitution, so Inmates cannot avail themselves of the constitutional protection against corporal punishment in this context.
As outlined earlier in this opinion, the ban on corporal punishment first appeared in the South Carolina Constitution of 1868, where it was located in the same article prohibiting “cruel and unusual punishment,” but in a separate section. See
Because corporal punishment is not defined in the state constitution, it is appropriate for courts to provide the necessary guidance. Our courts, however, have rarely had an occasion to address this aspect of the constitutional provision, as the prohibitions on cruel or unusual punishment are more commonly discussed. In addition, South Carolina‘s constitutional protection against corporal punishment appears to be unique among the states, so there is no comparable authority from other jurisdictions.
Initially, it is important to distinguish between what is often called judicial corporal punishment and student corporal punishment. It is readily apparent that there is a difference because, despite the ban on corporal punishment in the state constitution, South Carolina expressly and statutorily permits
In contrast, judicial corporal punishment, or what is traditionally termed corporal punishment as is used in article I, section 15 of our state constitution, has historically been understood to refer to physical punishment. See generally Punishment (then Corporal Punishment), Black‘s Law Dictionary (11th ed. 2019)
(“Physical punishment; punishment that is inflicted on the body (including imprisonment).“).
As is explained further in Black‘s Law Dictionary, corporal punishment includes physical punishment, such as mutilation and burning, and it is usually specified as a component of a defendant‘s sentence upon conviction for a criminal offense. From a legal standpoint, this is the definition of corporal punishment that perhaps sounds the most familiar in the context of punishment for criminal offenses:
“Past forms of corporal punishment included branding, blinding, mutilation, amputation, and the use of the pillory and the stocks. It was also an element in such violent modes of execution as drowning, stoning, burning, hanging, and drawing and quartering . . . [.] In most parts of Europe and in the United States, such savage penalties were replaced by imprisonment during the late eighteenth and early nineteenth centuries, although capital punishment itself remained. Physical chastisement became less frequent until, in the twentieth century, corporal punishment was either eliminated as a legal penalty or restricted to beating with a birch rod, cane, whip, or other scourge. In ordinary usage the term now refers to such penal flagellation.” Gordon
Hawkins, “Corporal Punishment,” in 1 Encyclopedia of Crime and Justice 251, 251 (Sanford H. Kadish ed., 1983).
Id. Corporal punishment is essentially the infliction of physical punishment causing pain upon the body for the commission of an infraction or a crime. See Corporal Punishment, Encyclopedia Britannica, https://www.britannica.com/topic/corporal-punishment (last updated May 25, 2024) (“[T]he infliction of physical pain upon a person‘s body as punishment for a crime or infraction. Corporal punishments include flogging, beating, branding, mutilation, blinding, and the use of the stock and pillory. In a broad sense, the term also denotes the physical disciplining of children in the schools and at home.“).
The majority acknowledges that the term “corporal” has “never had a precise meaning” in relation to the term “punishment.” The majority states it has, however, “quickly dispense[d] with the notion that any manner of carrying out the death penalty is corporal punishment.” In doing so, it reasons (1) that corporal punishment was originally intended to reform or rehabilitate the prisoner subjected to the
punishment, and only that prisoner, citing 4 William Blackstone, Commentaries on the Laws of England, at 11–12 (1769); (2) a capital sentence does not share this goal of deterring future misconduct, as it is intended to result in the death of the offender; (3) therefore, no method of carrying out the death penalty can ever violate South Carolina‘s ban on corporal punishment. The majority also cites for support a case in which the Supreme Court of North Carolina criticized the drafters of a 1777 act governing prosecution costs and remarked that “the act was penned by a person totally ignorant of technical terms, for he thought capital punishment and corporal punishment were the same.” See State v. Lumbrick, 4 N.C. 156, 157 (1814).Although there is concededly a dearth of authority on this constitutional
provision, I find none of the majority‘s citations compelling. For example, the
majority assigns significance to the 1814 observation from the Supreme Court of
North Carolina in Lumbrick that capital punishment and corporal punishment are not
“the same,” but this passing remark does not resolve the issue before this Court. It
is clear that the meaning of the two terms are not synonymous, as corporal
punishment is not the equivalent of a death sentence. In
In the current litigation, Inmates are not challenging the constitutionality of a
capital sentence as punishment for a qualifying criminal offense. Nor are they
arguing that a capital sentence violates South Carolina‘s constitutional prohibition
against corporal punishment. Rather, Inmates are more narrowly alleging that two
of the means currently set forth in
The fundamental question before this Court then, as a matter of first impression, is whether the constitutional protection against corporal punishment is somehow suspended for only a singular class of South Carolina citizens—those who have received a capital sentence? In other words, may the State use any means for imposing a capital sentence, including mutilation, burning, or torture? I believe the answer must be no. The right of all citizens to be protected from corporal punishment—in short, the right to protection from physical abuse or torture at the hands of the State—does not cease to exist within the four walls of a prison for death row prisoners. The right was considered significant enough that it was enshrined in our constitution and given equal status with the prohibitions on cruel and unusual punishment, so it should not be summarily “dispatched” with by this Court as to one category of citizens by engrafting an exception into our constitution that does not otherwise exist.
The North Carolina opinion cited by the majority consists of a scant paragraph
that interprets North Carolina law concerning when the state shall be liable for
prosecution costs. The North Carolina court commented on the inartful wording of
the statute, interpreted the statute‘s meaning, and then concluded the state should pay
the prosecution costs in that particular case.36 Because the opinion does not actually
involve
As to the remainder of the majority‘s analysis, while I do not doubt Blackstone‘s comment that corporal punishment can be intended to reform the prisoner by deterring future misconduct, I disagree that this comment from several centuries ago should define corporal punishment for all time and in all contexts. Notably, the element of deterrence exists for terms of imprisonment, corporal punishment, and the death penalty. Each punishment, including the death penalty, ostensibly serves as a warning of the potential consequences to others who disobey the law. See generally State v. Shuler, 353 S.C. 176, 189, 577 S.E.2d 438, 444 (2003) (“General deterrence arguments are admissible in the penalty phase of a capital trial.“). Hence the historic use of punishments such as public stockades and public hangings, which result in death, also result in deterrence. The use of the punishment as deterrence, therefore, is not a dispositive factor.
In addition, for the constitutional protection to have any meaning, the existence of a capital sentence should not alter our consideration of the fundamental right that is at stake. Otherwise, it would effectively rewrite the state constitution to provide an exception to the ban on physical (i.e., corporal) punishment if the punishment to the body results in the death of the prisoner. Taken to its extreme, such an exception could be misused to apply to instances where a prisoner is punished severely and the government actor, either intentionally or due to extreme indifference, causes the death of the prisoner. Additionally, as some observers have noted, it is not logical to hold acts causing a high degree of bodily destruction, such as the intentional application of electric shocks to a prisoner, are illegal torture if used to coerce a confession, but allowable if they are used, on the other hand, to lead to the death of a prisoner who has received a capital sentence. The conduct should not be condoned in either instance.
Lastly, I note that there can be some overlap between cruel punishment and
corporal punishment. This overlap arguably existed in Brown, in which we found
the trial judge erred in conditioning the suspension of a criminal sentence upon
“voluntary” castration. In that case, several prisoners sought a mandamus, as they
wanted to exercise this option in order to be released from prison. However, the
Court found castration would constitute mutilation and was an unconstitutional
punishment. We appeared to do so on the grounds it was cruel and/or unusual
punishment. See Brown, 284 S.C. at 411, 326 S.E.2d at 412 (“Article I, § 15, of our
Constitution prohibits the infliction of cruel and unusual punishment. Castration, a
form of mutilation, is prohibited by
V. Conclusion
I agree with the majority‘s determination that
JUSTICE KITTREDGE: I concur in part and dissent in part. I concur with Justice
Few‘s well-reasoned majority opinion, with one exception: I would find the firing
squad as a method of execution is “unusual” and, therefore, unconstitutional under
article I, section 15 of the South Carolina Constitution. See
I.
I begin with two threshold matters. First, it is important to remember the
Respondents-Appellants are four condemned inmates challenging the
constitutionality of the methods of execution set forth in
Second, as to the lens through which I examine the constitutionality of
Abbeville Cnty. Sch. Dist. v. State, 410 S.C. 619, 663, 767 S.E.2d 157, 180 (2014) (Kittredge, J., dissenting); Planned Parenthood S. Atl. v. State, 438 S.C. 188, 290, 882 S.E.2d 770, 825 (2023) (Kittredge, J., dissenting); Planned Parenthood S. Atl., 440 S.C. 465, 892 S.E.2d 121. I have also not hesitated to declare an action of the legislature unconstitutional when so convinced beyond a reasonable doubt. See, e.g., Bd. of Trustees of Sch. Dist. of Fairfield Cnty. v. State, 395 S.C. 276, 278, 718 S.E.2d 210, 211 (2011) (holding that the General Assembly‘s veto override votes fell short of the constitutionally required mandate).
Here, the details of effectuating the death penalty—like any other public policy
decision—lie within the exclusive province of the legislature, comprised of the duly
elected representatives of the citizens of South Carolina. Notwithstanding the
legislature‘s plenary power, however, I find its inclusion of the firing squad in
II.
Before addressing my disagreement with the majority, I emphasize there are a
number of points on which I agree with
Likewise, the majority‘s detailed discussion of the historical understanding of the term “cruel” is excellent and dovetails with Justice Thomas‘s succinct explanation: certain ancient methods of punishment were readily identified as cruel because they were “purposely designed to inflict pain and suffering beyond that necessary to cause death.” Baze v. Rees, 553 U.S. 35, 96 (2008) (Thomas, J., concurring). As the majority properly notes, the trial court made numerous findings regarding the alleged cruelty of each method of execution that are demonstrably incorrect, such as stating there was “no evidence to support the idea that electrocution produces an instantaneous or painless death.” (Emphasis added).
III.
I now come to the sole issue where I respectfully part company with my colleagues
in the majority. I would find the firing squad unconstitutional on the narrow ground
that it constitutes an “unusual” punishment within the meaning of
The State, with the majority following along, relies on language in decisions of the
United States Supreme Court that seemingly approves of the firing squad as a
constitutional method of punishment. That language does not control here. The
difference, as described above, relates to the
The majority mentions several of our cases that have tossed aside the clear textual
distinction between
Because of
A.
In examining the firing squad as a method of punishment, the majority observes that
Examining whether the firing squad offends the
It is well settled that the state constitution is construed in light of its framers and the
people who adopted it. Miller v. Farr, 243 S.C. 342, 347, 133 S.E.2d 838, 841
(1963) (noting that our state constitution is construed in light of “the intent of its
framers and the people who adopted it“). Therefore, we must look at the “ordinary
and popular meaning of the words used”39 and examine historical precedents to
discern the intent of the framers when they proscribed “unusual” punishment in
Because the prohibition against unusual punishment first appeared in our 1868
Constitution based upon similar language in the
C.
Of course, everyone has a general sense of what the word “unusual” means in
everyday discourse: uncommon, rare, out of the ordinary, or unused. Our common,
contemporary understanding of the word, however, does not fully encompass the
legal, or constitutional, definition. In the constitutional context, I believe the term
“unusual” carries a more precise meaning.
More specifically, the law concerning “unusual punishment” naturally emphasizes a temporal component: for a punishment to be “unusual” in a constitutional sense, it must have either become largely unused over a long period of time or never been adopted despite being in existence for a long period of time. Bucklew v. Precythe, 587 U.S. 119, 130–31 (2019) (describing unusual punishments as ones that have fallen out of usage for a long period of time (citing John F. Stinneford, The Original Meaning of “Unusual“: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71, 1814 (2008) (citations omitted))).
Necessarily woven into the temporal component is the reason underpinning a certain punishment‘s long disuse. That reason is critical to the constitutional analysis, for it must signify a repudiation and permanent abandonment of the punishment; otherwise, mere disuse is, merely, disuse.40 See Glossip v. Gross, 576 U.S. 863, 895 (2015) (Scalia, J., concurring) (opining that the term “unusual” does not include a mere decline in use, and any effort to so include it would constitute a “meaning[less] legal argument“).
Accordingly, a punishment may properly be deemed “unusual” only when there is
long disuse and that long disuse is fairly attributable to its rejection by the citizens
of a state or nation. Cf. Stinneford, supra, at 1768–72, 1792–1815 (explaining that
Americans in the late 18th and early 19th centuries described as “unusual”
governmental actions that were not customarily-employed over a long period time,
evinced those practices did not have the consent of the people). For example,
although employed in the colonial era, brutal punishments historically used in
England such as burning at the stake, drawing and quartering, and disembowelment
fell out of use in the colonies
and, by the time of the founding, had long fallen out of use and so had become ‘unusual‘” (cleaned up)).
Thus, I find the
D.
Having established the constitutional definition of the term “unusual,” I find the
firing squad violates the
In explaining the complete absence of the firing squad from our state‘s history, the
majority submits that “until the drugs necessary for lethal injection became
unavailable in the years preceding the 2021 amendments to
death penalty has been a sanctioned feature of South Carolina law, which reflects a
policy judgment that is also embedded in our state constitution. In that time, our
death penalty law has been the subject of numerous legislative enactments. At no
time, however, has South Carolina sought to use—or to revive—the methods of
execution that existed during colonial times, including the firing squad.44 Instead,
the State authorized and used hanging until 1912 when it abandoned that method of
execution in favor of electrocution. Electrocution was our state‘s sole method
In examining the history surrounding firing-squad executions for civilian inmates, the firing squad has been largely abandoned since colonial times. Even in the last century, the firing squad has been rarely utilized. Only 3 of over 1,500 executions in the last the 50 years—less than 1% of recent civilian executions—were carried out by a firing squad. Significantly, all three of those firing-squad executions occurred in a single state, Utah. Utah‘s unique use of the firing squad has been often linked to its citizens’ historic religious beliefs related to a condemned inmate repaying a blood debt. Deborah W. Denno, The Firing Squad as “A Known and
Available Alternative Method of Execution” Post-Glossip, 49 U. Mich. J.L. Reform 749, 788 (2016).
Moreover, aside from Utah, no state has performed a firing-squad execution in the last century. In fact, looking back even as far as the colonial era, fewer than 145 firing-squad executions of the over 16,000 executions in our country‘s history—less than 1% of all civilian executions—have ever been carried out in territories that would eventually form our nation. Significantly, the federal government has never formally adopted or used the firing squad. To state the obvious, notwithstanding its availability, the firing squad has been largely rejected throughout our nation‘s history.45
To be clear, none of this historical discussion is intended to suggest new methods of
effectuating a death sentence—such as lethal injection—should be considered
“unusual” simply because they have never been tried before. Indeed, nothing in the
text or history of
Rather, until now, the firing squad has never been adopted or used in South Carolina, and its historical use throughout the nation has been almost nonexistent. Even the military—the principal proponent of the firing squad throughout our nation‘s history—has long since abandoned its use. Notwithstanding its availability since
colonial times, the firing squad has remained on the sidelines, leading to only one plausible conclusion: the firing squad is constitutionally “unusual,” and the recent legislative introduction of the firing squad cannot stand.
IV.
Unlike the