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THE STATE OF SOUTH CAROLINA

In the Supreme Court
__________________________________

APPEAL FROM RICHLAND COUNTY

Court of Common Pleas

Honorable Jocelyn Newman, Circuit Court Judge

___________________________________

Appellate Case No. 2022-_____

Case No. 2021-CP-40-02306

___________________________________

FREDDIE EUGENE OWENS, BRAD KEITH SIGMON, GARY DUBOSE

TERRY, and RICHARD BERNARD MOORE,............................................. Respondents,

v.

BRYAN P. STIRLING, in his official capacity as the Director of the

South Carolina Department of Corrections; SOUTH CAROLINA
DEPARTMENT OF CORRECTIONS; and HENRY MCMASTER, in his
official capacity as Governor of the State of South Carolina, ................ Appellants.
_______________________________________

NOTICE OF APPEAL
_______________________________________

Appellants Bryan P. Stirling, in his official capacity as the Director of the South Carolina

Department of Corrections; South Carolina Department of Corrections; and Henry McMaster, in

his official capacity as Governor of the State of South Carolina appeal from the Order of the

Honorable Jocelyn Newman dated September 6, 2022. Appellants received written notice of this

Order on the date it was electronically filed. A copy of the Order is attached to this Notice of

Appeal.
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Respectfully submitted,

s/Wm. Grayson Lambert

Thomas A. Limehouse, Jr. (S.C. Bar No. 101289)
Chief Legal Counsel
Wm. Grayson Lambert (S.C. Bar No. 101282)
Senior Legal Counsel
Erica W. Shedd (S.C. Bar No. 104287)
Deputy Legal Counsel
OFFICE OF THE GOVERNOR
South Carolina State House
1100 Gervais Street
Columbia, South Carolina 29201
(803) 734-2100
[email protected]
[email protected]
[email protected]
Counsel for Governor McMaster

s/ Daniel C. Plyler
Daniel C. Plyler (S.C. Bar No. 72671)
Austin T. Reed (S.C. Bar No. 102808)
SMITH│ROBINSON
2530 Devine Street
Columbia, SC 29205
(803) 254-5445
[email protected]
[email protected]

Counsel for Director Stirling and SCDC

September 14, 2022

Columbia, South Carolina

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 ELECTRONICALLY FILED - 2022 Sep 14 8:32 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4002306
THE STATE OF SOUTH CAROLINA
In the Supreme Court
__________________________________

APPEAL FROM RICHLAND COUNTY

Court of Common Pleas

Honorable Jocelyn Newman, Circuit Court Judge

___________________________________

Appellate Case No. 2022-_____

Case No. 2021-CP-40-02306

___________________________________

FREDDIE EUGENE OWENS, BRAD KEITH SIGMON, GARY DUBOSE

TERRY, and RICHARD BERNARD MOORE,............................................. Respondents,

v.

BRYAN P. STIRLING, in his official capacity as the Director of the

South Carolina Department of Corrections; SOUTH CAROLINA
DEPARTMENT OF CORRECTIONS; and HENRY MCMASTER, in his
official capacity as Governor of the State of South Carolina, ................ Appellants.
_______________________________________

CERTIFICATE OF SERVICE
_______________________________________

I certify that Notice of Appeal was served on counsel of record on September 14, 2022, via

email under Paragraph (d)(1) of Order Re: Methods of Electronic Filing and Service Under Rule

262 of the South Carolina Appellate Court Rules (As Amended May 6, 2022), Appellate Case No.

2020-000447.

s/Wm. Grayson Lambert

Wm. Grayson Lambert
Counsel for Governor McMaster

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STATE OF SOUTH CAROLINA IN THE COURT OF COMMON PLEAS

COUNTY OF RICHLAND FOR THE FIFTH JUDICIAL CIRCUIT

Freddie Eugene Owens; Brad Keith Sigmon; Civil Action No. 2021CP4002306
Gary Dubose Terry; and Richard Bernard
Moore,

Plaintiffs,
ORDER GRANTING DECLARATORY AND

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v. INJUNCTIVE RELIEF

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Bryan P. Stirling, in his official capacity as
Director of the South Carolina Department of
Corrections; South Carolina Department of
Corrections; and Henry McMaster, in his
official capacity as Governor of South
Carolina,

Defendants.

These matters came before the Court for a non-jury trial, which began on August 1, 2022,

and concluded on August 4, 2022. Plaintiffs did not appear for the trial but were represented by

their attorneys, J. Christopher Mills, Esquire; Joshua S. Kendrick, Esquire; Lindsey S. Vann,

Esquire; and Hannah Freedman, Esquire. Defendants Stirling and South Carolina Department of

Corrections were represented by Daniel C. Plyler, Esquire, and Austin Reed, Esquire. Defendant

McMaster was represented by Thomas A. Limehouse, Jr., Esquire, and William Grayson Lambert,

Esquire.

Having fully considered all of the arguments, testimony, and evidence presented by the

parties, the Court makes the following findings of fact and conclusions of law pursuant to Rule

52(a) of the South Carolina Rules of Civil Procedure.

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FACTUAL AND PROCEDURAL BACKGROUND

I. The Parties

One of the defendants in this action is the South Carolina Department of Corrections

(“SCDC”), the state agency charged with implementing and carrying out the policy of the State of

South Carolina with respect to its prison system. See S.C. CODE ANN. § 24-1-30 (1976, as

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amended); see also S.C. Const. art. XII, § 2 (“The General Assembly shall establish institutions

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for the confinement of all persons convicted of such crimes as may be designated by law, and shall

provide for the custody, maintenance, health, welfare, education, and rehabilitation of the

inmates.”). The remaining defendants are Bryan P. Stirling, the Director of SCDC (“Director

Stirling”), and Henry McMaster, Governor of the State of South Carolina (“the Governor”), both

of whom are sued in their official capacities only.

Each of the plaintiffs is an inmate at SCDC, having been convicted of committing at least

one murder and sentenced to death. Gary Dubose Terry (“Terry”) was convicted of murder in

Lexington County and has been on death row since 1997. State v. Terry, 339 S.C. 352, 529 S.E.2d

274 (2000). Freddie Eugene Owens (“Owens”) was convicted of murder and sentenced to death

in 1999, after he shot and killed a convenience store clerk during the commission of a nighttime

robbery. State v. Owens, 346 S.C. 637, 552 S.E.2d 745 (2001), abrogated by State v. Gentry, 363

S.C. 93, 610 S.E.2d 494 (2005). Like Owens, Richard Bernard Moore (“Moore”) was convicted

of a murder that he committed during the commission of a nighttime robbery. State v. Moore, 357

S.C. 458, 593 S.E.2d 608 (2004). He was sentenced to death in October 2001. Id. Brad Keith

Sigmon (“Sigmon”) murdered two people in Greenville County in 2002, and a jury subsequently

sentenced him to death. State v. Sigmon, 366 S.C. 552, 623 S.E.2d 648 (2005).

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Between November 2020 and March 2021, the Supreme Court of South Carolina set

execution dates for Moore, Sigmon, and Owens after they exhausted their appellate and post-

conviction remedies. At that time, South Carolina law provided that any death-sentenced inmate

be executed by electrocution or by lethal injection. See 1995 S.C. Acts No. 108, § 1 (codified at

S.C. CODE ANN. § 24-3-530(A) (2007)). That statutory scheme required that, fourteen days before

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the scheduled execution, the inmate must choose his method of execution. Id. If the inmate made

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no election, the default method of execution was lethal injection. Id.

Before each of Plaintiffs’ scheduled execution dates, SCDC informed the Supreme Court

that it could not obtain lethal injection drugs to carry out the executions. The Court responded by

issuing stays of execution until “[SCDC] advises the Court it has the ability to perform the

execution as required by law.” See, e.g., Order, State v. Moore, No. 2001-021895 (S.C. Nov. 30,

2020).

II. S.C. CODE ANN. § 24-3-530

For many years, SCDC has been unable to obtain or to compound the drugs necessary to

carry out lethal injection. This moratorium was due, in part, to the South Carolina legislature

declining to pass certain legislation which would facilitate procurement of the drugs. Failures such

as these resulted in a de facto stay of executions, as inmate after inmate opted for death by lethal

injection. See S.C. House, Video of Judiciary Subcommittee on Constitutional Laws, 1:45 (Apr.

21, 2021), https://tinyurl.com/4czcc4yc (testimony from Director Stirling to a House Judiciary

subcommittee that SCDC “cannot carry out an execution by lethal injection because [SCDC] could

not obtain the drugs”).

In order to address this problem, the South Carolina legislature (“the General Assembly”)

amended the law regarding executions. Act 43 of 2021 (“the Act”) – which was approved by the

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General Assembly and ratified by the Governor – amended S.C. CODE ANN. § 24-3-530 to change

the default method of execution to electrocution. See 2021 S.C. Acts No. 43, § 1 (amending S.C.

CODE ANN. § 24-3-530). The Act also added a firing squad as a third option for the method of

execution. It 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

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the election of the convicted person, by firing squad or lethal

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injection, if it is available at the time of election, under the direction

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of the Director of the Department of Corrections.

S.C. CODE ANN. § 24-3-530(A) (2021). Therefore, if an inmate does not make an election as to

his method of execution, or if lethal injection or the firing squad are unavailable, he must die by

electrocution. Id.

The Act “applies to persons sentenced to death as provided by law prior to and after [its]

effective date,” including Plaintiffs. 2021 S.C. Acts No. 43, § 3. In other words, despite Plaintiffs

having previously rejected the option death by electrocution, the amended law requires that they

die in this manner unless lethal injection or the firing squad is deemed “available” by Director

Stirling. With lethal injection remaining unavailable as it has been for many years, Plaintiffs have

only two choices: being electrocuted or being shot to death.

III. This Lawsuit

In May 2021, soon after the Act was signed into law, Plaintiffs filed this action. They also

filed a Motion for Preliminary Injunction, which was denied by this Court in June 2021. At the

same time, Director Stirling advised the Supreme Court that SCDC “has been unable, despite

numerous and diligent attempts, to acquire the drugs necessary, in a useable form, to perform lethal

injection” and that “SCDC does not currently have the necessary policies and protocols, as required

by the statute, for an execution by firing squad.” Letter, Stirling to Shearouse (June 8, 2021), filed

in Sigmon, No. 2002-024388. The Supreme Court again stayed Plaintiffs’ executions, stating:

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According to the Director’s response, lethal injection is unavailable
due to circumstances outside of the control of the Department of
Corrections, and firing squad is currently unavailable due to the
Department of Corrections having yet to complete its development
and implementation of the necessary protocols and policies.

Under these circumstances, in which electrocution is the only

method of execution available, and due to the statutory right of
inmates to elect the manner of their execution, we vacate the
execution notice. See S.C. Code Ann. § 24-3-530 (2021). We further

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direct the Clerk of this Court not to issue another execution notice

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until the State notifies the Court that the Department of Corrections,
in addition to maintaining the availability of electrocution, has

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developed and implemented appropriate protocols and policies to
carry out executions by firing squad.

Order, State v. Sigmon & Sigmon v. State, Nos. 2002-024388, 2021-000584 (S.C. June 16, 2021);

Order, State v. Owens, No. 2006-038802 (June 16, 2021).

This prompted SCDC to quickly develop protocols necessary to implement the firing squad

as a method of execution. It did so and notified the Supreme Court of its work on March 18, 2022.

The Court then set new execution dates for Moore and Sigmon of April 29, 2022 and May 13,

2022, respectively; and Director Stirling submitted an affidavit to the Court certifying that “the

only statutorily approved methods of execution available to the Department are electrocution and

firing squad.” The Supreme Court stayed those execution notices during the pendency of this

action.

After a series of revisions to the original pleadings and the consolidation of related cases

into this one, Plaintiffs filed their “Third Amended Complaint for Permanent Injunctive Relief and

for a Declaratory Judgment” (“the Complaint”) on April 11, 2022. In it, they assert eight “claims

for relief” (labeled as Count I through Count VIII) – (1) that the Act is “retroactive legislation,”

which violates their due process rights; (2) that the Act amounts to unconstitutional ex post facto

legislation; (3) that the execution statute, as amended, is void for vagueness; (4) that the courts

must determine the meaning of the word “available” with respect to methods of execution, not

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Defendants; (5) that the Act violates the Non-Delegation Doctrine of the South Carolina

Constitution; (6) that both electrocution and the firing squad are prohibited by the South Carolina

Constitution; (7) that Plaintiffs’ right to elect their manner of execution is rendered meaningless

by the lack of constitutional choices from which to make that election; and (8) that the statutory

methods of execution, as applied to Terry, are unconstitutional.

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The trial of this case began on August 1, 2022. At that time, Plaintiffs abandoned and

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withdrew Count I of the Complaint and consented to sever Count VIII for determination at another

time. While six “claims for relief” remain, it appears that the thrust of Plaintiffs’ argument is that

S.C. CODE ANN. § 24-3-530 (2021) is unconstitutional because both electrocution and the firing

squad violate the South Carolina Constitution’s prohibition on cruel, unusual, and corporal

punishments. The Court heard testimony and received exhibits as to these allegations, culminating

in closing arguments on August 4, 2022.

FINDINGS OF FACT

I. Methods of Execution

The parties largely agree on the mechanics of each method of execution.

A. South Carolina’s Firing Squad

The protocol for South Carolina’s firing squad calls for the inmate to be strapped into a

backless metal chair. Once the inmate is restrained in the chair, an “aiming point” is placed over

his heart by a physician, and his head is covered by a hood. A three-member team is armed with

rifles containing .308 Winchester 110-grain TAP urban ammunition. The team is positioned

approximately fifteen feet from the inmate. When instructed to do so, the members of the team

focus the sights of their rifles on the aiming point. They then fire their rifles at the inmate’s chest.

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Following the first volley, if the inmate appears unresponsive, a physician is called to check

the inmate’s vital signs. Vital signs are checked every sixty seconds until none are present, at

which time the physician will certify death. However, if vital signs continue to be present after

ten minutes, the firing squad team will fire a second volley at the inmate. Altogether, the protocol

provides for contingencies for up to three volleys fired at the inmate if he continues to exhibit signs

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of life.

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B. Electrocution

In 1912, South Carolina became the eighth state to adopt the electric chair as a method of

execution. See 1912 S.C. Acts. 702, No. 402 § 1 (“Be it enacted by the General Assembly of the

State of South Carolina, That after the approval of this Act by the Governor all persons convicted

of capital crime and have imposed upon them the sentence of death shall suffer such penalty by

electrocution within the walls of the State Penitentiary, at Columbia, under the direction of the

Superintendent of the Penitentiary instead of by hanging.). Today, SCDC uses the same electric

chair that it purchased in 1912, although some of the components have been replaced. It is a

wooden chair equipped with leather straps which are used to restrain an inmate’s head, legs, arms,

and body.

Once the inmate is restrained, one copper electrode is attached to his right leg and another

attached to his head using a copper hat. A sponge, soaked in a conductive solution, is placed

between the inmate’s scalp and the head electrode. An electric current is then applied to the

inmate’s body as follows: 2000 volts for 4.5 seconds followed by 1000 volts applied for eight

seconds (the rounds of high-voltage current), ending with 120 volts of electric current (i.e., low

voltage current) applied for two minutes. This process disrupts the inmate’s bodily functions such

as respiration and circulation, causes electrical burns, and ultimately results in death.

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II. Witness Testimony

Plaintiffs presented the testimony from five witnesses, including two expert witnesses.

Defendants offered testimony from three expert witnesses.

A. Defendant Bryan Stirling

Director Stirling testified that he became Interim Director of SCDC in 2013. He was then

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confirmed by the South Carolina Senate as Director in 2014. Since that time, SCDC has not carried

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out any executions. Director Stirling stated that he offered testimony before the legislative

committees which were tasked with evaluating Act 43 but that he never advocated for or against

any particular method of execution.

While the Court found Director Stirling to be a credible witness, he is admittedly not a

subject matter expert in executions. Rather, he has a general familiarity with SCDC’s protocols

for its electric chair and firing squad and relies on experts to advise him on needed updates to the

electric chair and the design and processes involved in utilizing the firing squad. Therefore, it is

apparent that Director Stirling has very limited firsthand knowledge about many of the legal issues

raised in this action.

B. Colie Rushton

Rushton currently serves as the Director of Security and Emergency Operations at SCDC.

He has been employed by SCDC in various capacities for forty-nine years and has been in his

current position since May 2007. Rushton is familiar with both the electric chair and the newly-

implemented firing squad.

According to Rushton, SCDC’s current protocols for judicial electrocutions were

established before May 2007. Therefore, while he is knowledgeable about the electric chair itself

and the voltage and timing applied pursuant to the protocols, he does not know why any specific

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voltage or time period was chosen. Rushton testified that while the electric chair is old, the

electrical system was built in the late 1980’s. Further, he was present when the electrical system

was tested by a professional engineer in June 2021 and again in April 2022. That testing confirmed

that the system was in proper working order.

Unlike electrocution, the protocol for SCDC’s firing squad was developed by Rushton. He

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testified that he did internet research about historical uses of firing squads and the FBI’s testing of

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certain ammunition. Rushton spoke to officials in the State of Utah regarding their use of a firing

squad, and he was the person who ultimately chose the ammunition to be used in such executions.

However, Rushton admitted that the protocol was developed without consulting with any doctors,

firearms experts, ballistics experts, or any professional who could determine the proper positioning

of the target on the inmate’s body.

C. Witness X

Witness X, another SCDC employee, testified in camera pursuant to S.C. CODE ANN. § 24-

3-580 (2010). Witness X oversees judicial executions and ensures that security is maintained

during those executions. The witness has been present at the capital punishment facility when

executions were carried out by SCDC but has never personally observed the body of any inmate

after judicial electrocution has occurred. In Witness X’s role at SCDC, the witness would be

advised if any problems arose during a judicial execution. However, Witness X testified that they

are unaware of any problems or anomalies having occurred during any of those executions.

D. John Peter Wikswo, Jr., Ph.D.

Dr. Wikswo is a tenured professor of biomedical engineering, molecular physiology and

biophysics, and physics at Vanderbilt University. The Court found, based on his education,

training, and experience, that he is qualified as an expert in each of those three subjects. Dr.

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Wikswo admitted that although he has been studying the electric chair and electrophysiology since

1992, he has no expertise in consciousness, pain, or forensic pathology. He has never attended

medical school and has no training in medicine or forensic pathology, but he has studied how the

human body responds to stimuli, including electricity. Therefore, Dr. Wikswo’s testimony

primarily concerned the mechanics of electrocution and its effect on the body.

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Dr. Wikswo also explained that electrocution is meant to cause fibrillation, the process by

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which the heartrate increases until its electrical circuitry is disrupted and it can no longer pump

oxygenated blood through the body, resulting in brain death. The heart, however, is capable of

spontaneously regaining function after it enters fibrillation, meaning it can resume pumping

oxygenated blood without any medical intervention. This is significant because, as Dr. Wikswo

testified, the heart has an “upper threshold of vulnerability” beyond which a current will not induce

fibrillation. According to Dr. Wikswo, that upper threshold is approximately 1000 volts. South

Carolina’s protocols call for the application of an initial current equal to or greater than this upper

threshold. Therefore, Dr. Wikswo testified, the first 12.5 seconds of the inmate’s electrocution is

unlikely to induce fibrillation in most people, meaning that most inmates who are electrocuted in

South Carolina’s electric chair will not die from loss of oxygen to the brain after the first two

shocks.

According to Dr. Wikswo, when judicial electrocutions are performed, the hope is that the

electric current is first applied to the inmate’s brain, but that this scenario is unlikely to actually

occur. He testified that the human skull is not a good conductor of electricity. Thus, when the

electric current is applied to the inmate’s scalp, it spreads into the facial muscles and thoracic

portions of the body, with only a small fraction entering the brain. In other words, the electric

current primarily travels around the skull before and down the skin and tissues of the neck and

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torso before reaching the electrode on the inmate’s leg. However, Dr. Wikswo admitted that he

cannot quantify the percentage of electric current that reaches the brain and that there is no

evidence of how much of the brain is rendered nonfunctional during the process.

Instead, Dr. Wikswo opined that because the human skull is significantly more resistive

than the skin, the muscles, and the connective tissue around the head, when current is applied to

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the top of the head, the vast majority does not enter the brain. Rather, it flows from the head

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electrode to the leg electrode. It does not cause immediate loss of consciousness but causes severe

pain due to the tetany, or full contraction, of the body’s skeletal muscles. Dr. Wikswo testified

that tetany caused by a judicial electrocution may be forceful enough to cause broken bones. For

this reason, Dr. Wikswo explained, the use of a head-to-hoof or head-to-leg arrangement is not

even permitted for animal slaughter.

Dr. Wikswo also testified that when electric current flows through the body, it encounters

resistance, which generates heat. In the case of the electric chair, the current generates enough

heat to cause burning, charring, and arcing – a phenomenon in which electricity jumps through the

air, as with a lightning strike or a spark. Arcing can cause burns to appear to on parts of the body

that are not touching electrodes. Dr. Wikswo testified that one of the autopsies he reviewed from

South Carolina documented that the fleshy portion of the inmate’s nose had been burned off, which

Dr. Wikswo explained was likely caused by arcing. He also testified that in the autopsies he

reviewed from South Carolina and from other states, he observed damage consistent with severe

electrical burns, charring, and arcing. Specifically, he testified that multiple of the South Carolina

autopsies documented burns so deep that the underlying fat tissue rendered, causing the skin to

slip and fall away from the bone. He did, however, admit that he was unable to determine whether

the burns and other damage to the body occurred pre- or post-mortem.

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In summary, Dr. Wikswo opined that there is no scientific evidence that electrocution –

particularly in the manner applied by SCDC – causes painless, instantaneous death, and that he is

unable to find scientific rationale to support for South Carolina’s electrocution protocols. In fact,

South Carolina’s use of multiple, prolonged shocks is evidence that the first application of current

is insufficient to kill the inmate. Further, there are no measurements to prove that the human brain

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is rendered insensate from the first electrical shock in judicial electrocutions, and that there is a

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substantial risk that the inmate remains conscious, sensate, and in pain for some period of time.

Thus, while it is impossible to determine the exact moment that death occurs during a judicial

electrocution, the process is neither instantaneous nor painless.

E. Dr. Jonathan Arden

Dr. Arden is a board-certified forensic pathologist. He has worked as a medical examiner

in many jurisdictions and is currently a parttime forensic pathologist for the State of West Virginia

and the City of San Diego, California. He is also a private consultant. Based on his education,

training, and experience, the Court admitted Dr. Arden as an expert in the field of forensic

pathology. Dr. Arden offered testimony about the kinds of injuries an inmate suffers when

subjected to death by firing squad or by electrocution.

1. Firing Squad

According to Dr. Arden, the mechanism that causes death by firing squad is destruction of

the heart, causing cessation of circulation. He explained that gunshot wounds to the chest would

cause extensive damage, including fractures of the ribs and sternum. This, he testified, would

cause excruciating pain as long as the person remained sensate, especially when making any

movements such as flinching or breathing. Dr. Arden supported his conclusion that the firing

squad would hit and fracture bone by reviewing a report of examination and photographs from a

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firing squad execution in Utah. The pathological diagnoses in that execution noted “fragmentation

of anterior chest wall,” which Dr. Arden recognized as indicating broken bones in the chest cavity.

Dr. Arden testified that an inmate would remain sensate and able to feel pain for

approximately fifteen seconds, assuming the heart was rendered completely unable to circulate

blood to the brain. If, however, the heart function was not completely disrupted – either because

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the bullets were not properly aimed at the heart or because the fragmentation caused the bullet

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fragments to hit surrounding areas – the inmate would remain sensate for longer. Based on his

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extensive experience as a pathologist, Dr. Arden testified that it is a scientific fact that a person

will not immediately lose consciousness upon disruption of the heart because the remaining blood

in the brain will provide sufficient oxygen to maintain consciousness for approximately fifteen

seconds even if circulation is completely disrupted.

2. Electrocution

Dr. Arden testified that he has reviewed more than eighty autopsy reports from electric

chair executions in various states and that all of those autopsies showed severe injuries.

Specifically, he described severe electrical and thermal burns on inmates’ bodies and “effects on

parts of the body, including internal organs, that is the equivalent of cooking.” Some of the burns

Dr. Arden observed were classified as third-degree burns, and he testified that if a person were

conscious during that process, they would feel “horrific pain.” Like Dr. Wikswo, Dr. Arden

testified that when a person is electrocuted, their skeletal muscles tetanize, causing them to contract

painfully. The muscles around the chest and lungs, which regulate breathing, also tetanize,

meaning a person who is electrocuted is unlikely to be able to breathe. He also opined that the

experience of electrocution and the passage of high voltage current through the body “in and of

itself would be painful and excruciating.”

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According to Dr. Arden, although it is not possible to distinguish between all pre- and post-

mortem injuries, it is possible for some injuries. For example, he stated that some of the injuries

he observed in the autopsy reports could only have occurred post-mortem, such as subdural

hematomas. However, he testified that the presence of subdural hematomas in South Carolina

electric chair autopsies is an indication that the inmates were exposed to extreme heat, as in

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cooking. Other injuries, Dr. Arden testified, could only have happened pre-mortem. Those injuries

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include bruising corresponding to the configuration of the restraints, for example, which Dr. Arden

observed in many of the autopsies he reviewed, including those from South Carolina. According

to Dr. Arden, bruising occurs when blunt force trauma causes blood to rush to the area of injury, a

process that can only happen when the heart is beating. The presence of bruising, Dr. Arden

explained, is a clear signal that a person killed in the electric chair did not die immediately.

Finally, Dr. Arden testified that of the eighty autopsies he reviewed, ten revealed that the

executions were “botched,” meaning they did not go according to plan. Dr. Arden testified that

some of the botches involved inmates surviving and remaining conscious past the first application

of current, as indicated by voluntary movement or breathing. He stated that at least one of the

South Carolina autopsies indicated a botched electrocution, as the head electrode appeared to have

moved and fallen into the inmate’s eyes. Dr. Arden explained that if the inmate were conscious

during any of his electrocution, he would have experienced excruciating pain from having an

electrical burn in his eyes. In conclusion, Dr. Arden testified that “[t]here is no proof that judicial

electrocutions, botched or not, provide instantaneous death.”

F. Dr. Ronald Wright

Dr. Wright – deemed by the Court to be an expert in forensic pathology – testified about

the electric chair on behalf of Defendants. He largely disagreed with Plaintiffs’ witnesses.

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According to Dr. Wright, when a person is electrocuted with very high voltage current,

they are rendered instantaneously unconscious and cannot regain consciousness because their brain

cells are subject to immediate poration. Poration, Dr. Wright testified, is a phenomenon in which

an electrical current punches sub-microscopic holes into tissue, causing irreparable damage. He

also stated that even if the brain does not instantly porate, a person will still die very quickly

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because the human heart tetanizes instantly. For this reason, Dr. Wright opined that “[i]f I had

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been sentenced to die, that [the electric chair] would be my choice because it doesn’t hurt.” Dr.

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Wright could not, however, offer any affirmative proof to support this theory of instant poration

and insensibility. To the contrary, Dr. Wright acknowledged that a person whose brain has been

subject to instant poration would not be capable of breathing, moving, or screaming; and he was

unable to explain electrocutions during which inmates breathed, moved, and screamed after the

application of electric current.

Dr. Wright also opined that the second application of electric current in South Carolina’s

protocol is not necessary, given his view that the first application of high-voltage current causes

instantaneous loss of consciousness. As to the third application of current, he testified that low-

voltage current – which he described as current of less than 600 volts – is “very dangerous” and

that electrocution with low-voltage current is particularly painful. He acknowledged that if a

person survived and remained sensate after the first two applications of current in South Carolina’s

electric chair, they would experience considerable pain and suffering. Consistent with this, Dr.

Wright also acknowledged that electro-convulsive therapy (ECT), a medical treatment for some

severe psychiatric illnesses, always involves the administration of anesthesia to induce sedation,

followed by a strong muscle relaxant to prevent damage to the musculoskeletal system that can

occur when a person’s skeletal muscles tetanize. ECT never involves a heat-to-leg electrode

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system, but instead always requires cross-brain electrical current. These measures, Dr. Wright

acknowledged, are designed to reduce pain and suffering. Dr. Wright could not explain how a

head-to-leg electrode system – as is used by SCDC – is consistent with the goal of reducing pain

and suffering.

Additionally, Dr. Wright acknowledged during his testimony that in reaching his opinions,

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he relied on a meta-analysis of more than fifty other peer-reviewed articles. See Hannah McCann,

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Giampaolo Pisano, & Leandro Beltrachini, Variation in Reported Human Head Tissue Electrical

Conductivity Values, 32 BRAIN TOPOGRAPHY 825 (2019). Dr. Wright specifically described this

article as “very good.” However, when confronted with the fact that the article explicitly details a

consensus view among experts that the human skull is significantly more resistant than the scalp,

muscles, fat, blood, and the brain, Dr. Wright discounted it and attributed those findings to the

studies having used low voltages. He did not explain why a low voltage would impact the

resistance measures.

G. Dr. Jorge Alvarez

Dr. Alvarez is a cardiologist in San Antonio, Texas, is the medical director of the South

Texas Hearth Valve Center, and is the co-medical director of the Methodist Hospital Chest Pain

Center. The Court qualified Dr. Alvarez as an expert in cardiology and heard testimony from him

regarding the use of a firing squad to cause death.

Dr. Alvarez agreed with other witnesses that when a firing squad is utilized, death is

accomplished by disruption of the heart and surrounding vessels, which would stop blood

circulation. He also agreed that the heart is located behind a series of bones, including the ribs and

the sternum, with the sternum covering between one-third to one-half of the heart.

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Regarding consciousness, Dr. Alvarez testified that the ammunition would cause relatively

immediate stoppage of blood flow and a rapid decline in consciousness. Based on his experience

as a cardiologist, he testified that the loss of consciousness would be relatively quick: less than ten

seconds. On cross examination, Dr. Alvarez agreed that the precise location of where the bullet

hits could impact how quickly a person would be exsanguinated, possibly increasing the amount

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of time a person could remain conscious. Finally, while he disagrees with Dr. Arden about

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precisely how long it takes for unconsciousness of the inmate to occur, they agree that loss of

consciousness is not immediate; that accuracy in the administration of the firing squad is a

necessary component of a rapid death; and that broken bones and chest cavitation cause pain.

H. Dr. D’Michelle DuPre

The final testifying witness was Dr. DuPre, a private consultant and forensic pathologist

who has previously been employed as a medical examiner in multiple states. This Court qualified

Dr. DuPre as an expert in forensic pathology. She offered testimony concerning the use of the

firing squad.

Unsurprisingly, Dr. DuPre agreed with Drs. Arden and Alvarez about the mechanism of

death and location of the heart behind bone. She also agreed with Rushton’s assessment that the

ammunition he selected would cause increased cavitation due to its frangibility. According to Dr.

DuPre, each bullet fragment would itself create a temporary cavity in the inmate’s body, causing

more damage.

Dr. DuPre disagreed with other experts about how long an inmate remains conscious after

being shot. Unlike the other experts, Dr. DuPre opined that death by firing squad would be very

rapid with unconsciousness occurring “almost immediately.” She asserted that it would be so

quick that the inmate would not experience pain at all. She based this opinion, in part, on the idea

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that the blood loss caused by the gunshot wounds would cause nearly instantaneous

unconsciousness. However, Dr. DuPre offered no affirmative evidence to support her opinion that

the firing squad causes immediate loss of consciousness.

In addition, Dr. DuPre acknowledged that her opinion about the firing squad was premised

on an assumption that it would be carried out properly, with well-trained marksmen who would

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not miss their targets. She admitted, however, that she did not have any information about the

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marksmanship training received by the firing squad team and that she was not involved in the

design of the protocol. Moreover, Dr. DuPre testified that shooting and killing another person is

difficult and that a person with inadequate training or insufficient psychological preparation would

be more likely to flinch or hesitate at the last moment, increasing the chances of a botched

execution. Thus, it is clear that Dr. DuPre’s testimony about the firing squad is based on a series

of unsupported assumptions.1

CONCLUSIONS OF LAW

The Uniform Declaratory Judgments Act is an appropriate method to challenge the

constitutionality of a statute. See S.C. CODE ANN. § 15–53–20 (1976). It provides that “[c]ourts

of record within their respective jurisdictions shall have power to declare rights, status, and other

legal relations whether or not further relief is or could be claimed.” Id. “Any person ... whose

rights, status, or other legal relations are affected by a statute ... may have determined any question

of construction or validity arising under the ... statute ... and obtain a declaration of rights, status

or other legal relations thereunder.” S.C. CODE ANN. § 15-53-20 (1976); see also Rule 57, SCRCP.

“In an action for declaratory relief, the burden of proof rests with the party seeking the

declaration…” SPUR at Williams Brice Owners Ass’n, Inc. v. Lalla, 415 S.C. 72, 82, 781 S.E.2d

1
Here, the Court makes no attempt to discredit Dr. DuPre’s testimony. Rather, the Court recognizes that they are
premised on assumptions, which are just that – assumptions.

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115, 121 (Ct. App. 2015) (citations omitted). Generally, “that party must meet its burden by a

greater weight or preponderance of the evidence.” Id. (citing Vt. Mut. Ins. Co. v. Singleton, 316

S.C. 5, 10, 446 S.E.2d 417, 421 (1994); Menne v. Keowee Key Prop. Owners’ Ass’n, Inc., 368 S.C.

557, 564, 629 S.E.2d 690, 694 (Ct. App.2006)). However, when the action alleges the

unconstitutionality of a statute, the same must be proven beyond a reasonable doubt. See, e.g.,

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Joytime Distribts. & Amusement Co. v. State, 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999) (“A

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legislative act will not be declared unconstitutional unless its repugnance to the constitution is clear

and beyond a reasonable doubt.”).

The criminal justice “system affords greater protection to the accused [in capital cases]

since the imposition of death by public authority is so ‘profoundly different’ from any other

sanction.” State v. Butler, 277 S.C. 452, 456, 290 S.E.2d 1, 3 (1982), overruled on other grounds

by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (quoting State v. Shaw, 273 S.C. 194,

206-07, 255 S.E.2d 799, 805 (1979), overruled on other grounds by Torrence, 305 S.C. 45, 406

S.E.2d 315; Lockett v. Ohio, 438 U.S. 586, 605 (1978)). However, it remains true that “[a]ll

statutes are presumed constitutional and will, if possible, be construed so as to render them valid.”

Davis v. Cnty. of Greenville, 322 S.C. 73, 77, 470 S.E.2d 94, 96 (1996). “When the issue is the

constitutionality of a statute, every presumption will be made in favor of its validity and

no statute will be declared unconstitutional unless its invalidity appears so clearly as to leave no

doubt that it conflicts with the constitution.” State v. Jones, 344 S.C. 48, 58, 543 S.E.2d 541, 546

(2001) (citations omitted). “This general presumption of validity can be overcome only by a clear

showing the act violates some provision of the constitution.” Johnson v. Collins Ent. Co., 349

S.C. 613, 626, 564 S.E.2d 653, 660 (2002) (citing Main v. Thomason, 342 S.C. 79, 535 S.E.2d 918

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(2000); State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994); Westvaco Corp. v. S.C. Dep’t of

Revenue, 321 S.C. 59, 467 S.E.2d 739 (1995)).

I. Count VI: Both Electrocution and the Firing Squad are Unconstitutional

Plaintiffs allege that electrocution and the firing squad are unconstitutional methods of

execution. Specifically, Plaintiffs contend that both methods of execution are cruel, unusual, and

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corporal, in violation of Article I, Section 15 of the South Carolina Constitution. The Court agrees.

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The Constitution of the State of South Carolina provides, in relevant part,

All persons shall be, before conviction, bailable by sufficient

sureties, but bail may be denied to persons charged with capital
offenses or offenses punishable by life imprisonment, or with
violent offenses defined by the General Assembly, giving due
weight to the evidence and to the nature and circumstances of the
event. Excessive bail shall not be required, nor shall excessive fines
be imposed, nor shall cruel, nor corporal, nor unusual punishment
be inflicted, nor shall witnesses be unreasonably detained.

S.C. Const. art. I, § 15. Notably, this language offers greater protections than those found in the

Constitution of the United States. See U.S. Const. amend. VIII (“Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”). This is

because the federal constitution “sets the floor for individual rights while the state constitution

establishes the ceiling.” State v. Forrester, 343 S.C. 637, 643-44, 541 S.E.2d 836, 840 (2001).

The Court rejects Defendants’ argument that the South Carolina Constitution should be

analyzed in the same manner as the United States Constitution. South Carolina’s courts have

historically reached the same conclusion. See, e.g., id. at 644, 541 S.E.2d at 841 (finding that the

South Carolina Constitution’s prohibition on “invasions of privacy” provides greater protections

that the Fourth Amendment to the United States Constitution); Singleton v. State, 313 S.C. 75, 437

S.E.2d 53 (1993) (holding that the state constitutional right to privacy prohibited the state from

forcibly medicating a death row inmate in preparation of his execution); State v. Brown, 284 S.C.

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407, 326 S.E.2d 410 (1985) (finding that despite being permitted under the federal constitution,

castration is a form of mutilation, which is prohibited by Article I, Section 15 of the South Carolina

Constitution).

Unlike the federal constitution, South Carolina’s constitution uses disjunctives to

distinguish the categories of prohibited punishment. Therefore, the Court must account for all

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three prohibitions – cruel, unusual, and corporal – in determining whether a specific method of

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execution (i.e., the inmates’ punishment) is unconstitutional. This is consistent with our state’s

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tradition of “providing [our] citizens with a second layer of constitutional rights,” beyond what is

guaranteed by the federal constitution. See State v. Austin, 306 S.C. 9, 16 & n.6, 409 S.E.2d 811,

815 & n.6 (Ct. App. 1991).

A. The Firing Squad

1. The Firing Squad is Unusual

A review of executions nationally and in South Carolina demonstrates that the firing squad

is unusual. The Supreme Court of the United Sates recognized nearly a century and a half ago that

the punishment was used mainly as a military punishment for soldiers, not civilians. See, e.g.,

Wilkerson v. Utah, 99 U.S. 130, 135 (1878), (“Soldiers convicted of desertion or other capital

military offences are in the great majority of cases sentenced to be shot.”). Later, in ruling the

nation’s death penalty was unconstitutional in the 1970s, United States Supreme Court Justice

Brennan noted that executions by “shooting [had] virtually ceased” following the adoption of

supposedly more humane methods of execution including electrocution and lethal gas. Furman v.

Georgia, 408 U.S. 238, 296-97 (1972) (plurality opinion) (Brennan, J. concurring). Dr. DuPre

corroborated this conclusion, testifying that her research confirmed that less than 1% of executions

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have been carried out by firing squad, with only thirty-four since 1900, all but one of which were

in Utah.

In fact, no one disputes that the State of South Carolina has never before employed a firing

squad as a method of execution or non-military punishment and has never carried out such an

execution. This is so even though firing squads have existed for many years, meaning that it is not

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a newly created or recently discovered means of execution. Rather, it is a reversion to a historic

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method of execution that has never before been used by our State and is not used in the

overwhelming majority of other states. Thus, execution by firing squad is unusual punishment both

nationally and in South Carolina.

2. The Firing Squad is Cruel

The use of a firing squad to accomplish death is cruel. “Punishments are cruel when they

involve torture or a lingering death . . . something more than the mere extinguishment of life.” In

re Kemmler, 136 U.S. 436, 447 (1890). Here, it is clear that the firing squad causes death by

damaging the inmate’s chest, including the heart and surrounding bone and tissue. This is

extremely painful unless the inmate is unconscious which, according to Drs. Arden and Alvarez,

is unlikely. Rather, the inmate is likely to be conscious for a minimum of ten seconds after impact.

Moreover, the length of the inmates’ consciousness – and, therefore, his ability to sense pain –

could even be extended if the ammunition does not fully incapacitate the heart. During this time,

he will feel excruciating pain resulting from the gunshot wounds and broken bones. This pain will

be exacerbated by any movement he makes, such as flinching or breathing.

This constitutes torture, a possibly lingering death, and pain beyond that necessary for the

mere extinguishment of death, making the punishment cruel.2

2
Not only do South Carolina courts acknowledge that such conscious pain and suffering exist prior to death, but our
system of justice routinely compensates a person’s heirs for that discomfort. See, e.g., Welch v. Epstein, 342 S.C. 279,

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3. The Firing Squad is Corporal

The firing squad constitutes corporal punishment. “Corporal” is defined as “pertaining or

relating to the body.” Merriam-Webster Dictionary (2022), https://www.merriam-

webster.com/dictionary/corporal. For purposes of interpreting the South Carolina Constitution,

“corporal” also refers to mutilation of the human body. See, Brown, supra. Thus, a method of

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punishment which mutilates the human body, such as the firing squad, is violative of the South

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Carolina Constitution.

The firing squad clearly causes destruction to the human body. Rushton testified that in

developing South Carolina’s protocols, he chose frangible ammunition because it would break

apart upon impact and inflict maximal damage to the inmate’s body. Rushton opted for specific

ammunition which he understood would cause cavitation (a hole in the inmate’s chest) up to six

inches in diameter, at a depth of 45 inches into the body. He expects that the ammunition will first

hit the bone in front of the inmate’s heart causing it to fragment, as opposed to if it hit only soft

tissue and possibly not fragmenting immediately. An inmate is to be struck by three such rounds

of ammunition, compounding the damage to his body.

The expected damage is confirmed by the Court’s review of the autopsy photos of the last

person executed by firing squad in Utah, which was introduced as an exhibit at trial. Those photos

depict multiple entrance wounds in the inmate’s chest and large volumes of blood poured out over

his body and clothing. The inmate’s body has been, by any objective measure, mutilated. 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

536 S.E.2d 408 (Ct. App. 2000); Smalls v. S.C. Dep’t of Education, 339 S.C. 208, 528 S.E.2d 682 (Ct. App. 2000);
Edwards v. SCAPA Waycross, Inc., 2022 WL 3050834 (Aug. 3, 2022).

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chamber with a black fabric to obscure any bodily fluid or tissues that emanate from the inmate’s

body.

B. Electrocution is Cruel, Unusual and Corporal

Only three states have ever addressed the constitutionality of death in the electric chair: the

Supreme Court of Florida in 1999, the Supreme Court of Georgia in 2001, and the Supreme Court

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of Nebraska in 2008. See Provenzano v. Moore, 744 So.2d 413 (Fla. 1999) (per curiam); Dawson

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v. State, 554 S.E.2d 137 (Ga. 2001); State v. Mata, 745 N.W.2d 229 (Neb. 2008). The Georgia

and Nebraska courts held that the electric chair violates those states’ constitutions, while the

Florida court held the opposite in Provenzano. However, after Provenzano was decided, the

Supreme Court of the United States granted certiorari review. In response, the Florida legislature

amended the state’s method of execution statute to make lethal injection the default method and

the Supreme Court dismissed the petition “[i]n light of the representation by the State of Florida,

through its Attorney General, that petitioner’s ‘death sentence will be carried out by lethal

injection.’” See Bryan v. Moore, 528 U.S. 1133 (2000) (describing “recent amendments to Section

922.10 of the Florida Statutes”). Thus, the decision of the Florida Supreme Court was effectively

abrogated when the Florida legislature amended that state’s methods of execution statute to remove

the possibility of an involuntary execution by electrocution.

In Dawson, the Supreme Court of Georgia held that the electric chair violates the Georgia

Constitution for three independent reasons. First, the court noted that “the evidence establishes

that it is not possible to determine whether unnecessary pain is inflicted in the execution of the

death sentence.” 554 S.E.2d 142-43. In essence, the court held that the inmate had not satisfied

his burden of proof on the question of “unnecessary conscious pain suffered by the condemned

inmate.” Id. at 143. Second, however, the court held that the electric chair violates the Georgia

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Constitution because it “unnecessarily mutilate[s] or disfigure[s] the condemned inmate’s body,”

regardless of “whether or not the electrocution protocols are correctly followed and the

electrocution equipment functions properly.” Id. The court noted that the electric chair leaves

inmates’ bodies “burned and blistered with frequent skin slippage from the process” and “the

brains of condemned inmates are destroyed in a process that cooks them.” Id. Third, the court

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held that the electric chair is cruel and unusual “in light of viable alternatives which minimize or

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eliminate the pain and/or mutilation.” Id. Thus, the court concluded, “death by electrocution, with

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its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the

prohibition on cruel and unusual punishment” in the Georgia Constitution. Id. at 144.

Mata, decided less than a decade later, reached largely the same conclusions, but did so on

the basis of a more developed record with the benefit of additional scientific and medical

testimony. Unlike Dawson, the Mata court explicitly held that “death and loss of consciousness

is not instantaneous for many condemned inmates” and that the condemned inmate had met his

burden of proving that “electrocution inflicts intense pain and agonizing suffering.” 745 N.W.2d

at 277-78. The electric chair, Mata held, has a “proven history of burning and charring bodies”

that is “inconsistent with both the concepts of evolving standards of decency and the dignity of

man.” Id. at 278. “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. (quoting Jones v. State, 701 So.2d 76, 87 (Fla. 19997). The Court finds Mata

to be a relevant and persuasive opinion, given that two of the experts who testified in that case Drs.

Wright and Wikswo – also testified in this case and offered essentially the same opinions. See

Mata, 745 N.W.2d at 273-75 (describing Dr. Wikswo’s and Dr. Wright’s competing theories of

how the electric chair accomplishes death).

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According to the testimony adduced at trial, there is no evidence to support the idea that

electrocution produces an instantaneous or painless death. If the inmate is not rendered

immediately insensate in the electric chair, they will experience intolerable pain and suffering from

electrical burns, thermal heating, oxygen deprivation, muscle tetany, and the experience of high-

voltage electrocution.

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South Carolina’s electric chair also causes severe damage to an inmate’s body, some of

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which occurs pre-mortem. Because the human skull is significantly more resistant than other parts

of the head and upper body, not all of the electrical current applied in the first two rounds of current

will enter an inmate’s brain. This increases the likelihood that a person will survive the initial

shocks in the electric chair, even if the lower voltage third round of current does eventually kill

them by fibrillating their heart, cooking their organs, or preventing them from breathing.

There is evidence that inmates executed by electrocution continue to move, breathe, and

even scream after the shock is administered. The inmate may also regain heart function and

spontaneously resume breathing during the process. These are indications that a substantial

percentage of individuals survive and remain sensate long enough to experience excruciating pain

and suffering. In fact, the head-to-leg electrode protocol is not designed to reduce pain and

suffering. According to expert testimony, there is no scientific or medical justification for the way

South Carolina carries out judicial electrocutions. The South Carolina electric chair causes grave

damage to the body, but it is unlikely to immediately cause grievous harm to the two organs most

important to maintaining consciousness: the brain and the heart. This creates a risk that an inmate

will remain conscious and sensate while he is burned, bruised, and suffocated. 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. As a result of the

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inherently unpredictable nature of electrocution and the occurrence of human error, an intolerably

high percentage of judicial electrocutions do not go according to plan and cause extreme pain and

suffering.

Based on the foregoing findings of fact, the Court holds that the electric chair violates the

South Carolina Constitution because it is cruel, it is unusual, and it is corporal. Since 1976, the

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state has killed just seven men in the electric chair. In multiple of those executions, there is objective

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evidence, documented in the autopsy reports as bruising, that the condemned likely experienced

severe pain and suffering. The punishment is, at a minimum, no longer viewed as a reliable method

of administering a painless death, and the underlying assumptions upon which the electric chair is

based, dating back to the 1800s, have since been disproven.

As other courts have observed, although “it is not possible to determine conclusively

whether unnecessary pain is inflicted [in a judicial electrocution],” the affirmative evidence that

does exist strongly indicates that in an intolerably large number of cases, judicial electrocution

amounts to torture. Dawson, 554 S.E.2d at 142-43; see also Mata, 745 N.W.2d at 278. Moreover,

the law does not require certainty; even under the most demanding methods-of-execution analysis,

“[t]he standard is whether the punishment creates a substantial risk that a prisoner will suffer

unnecessary and wanton pain in an execution,” and the electric chair carries that risk. Id.

Even if an inmate survived only fifteen or thirty seconds, he would suffer the experience

of being burned alive – a punishment that has “long been recognized as ‘manifestly cruel and

unusual.’” Dawson, 554 S.E.2d at 143 (quoting In re Kemmler, 136 U.S. 436, 446 (1890)). Or, in

the words of the Supreme Court of Nebraska, the argument that fifteen to thirty seconds “is a

permissible length of time to inflict gruesome pain . . . is akin to arguing that burning a prisoner at

the stake would be acceptable if we could be assured that smoke inhalation would render him

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unconscious within 15 to 30 seconds.” Mata, 745 N.W.2d at 278. These risks are even more

intolerable in light of the fact that South Carolina authorizes execution by lethal injection, a method

that is known to be more humane and less painful when it is properly administered. Simply put,

“[e]lectrocution’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

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that early assumptions about an instantaneous and painless death were simply incorrect and that

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there are more humane methods of carrying out the death penalty.” Id. After more than a century

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of use, it is time to retire the South Carolina electric chair as a violation of the Article I, section 15

of the South Carolina Constitution.

II. Count II: The Statute Violates the Ex Post Facto Clauses of the United States and
South Carolina Constitutions

Plaintiffs allege the amended execution statute operates in violation of the Ex Post Facto

Clause because the prior statute provided an inmate would be executed by lethal injection unless

he affirmatively chose electrocution, but the new statute sets the default method as electrocution

unless firing squad and/or lethal injection are certified as available and the inmate choses it.

Because SCDC has indicated it cannot obtain the drugs to carry out lethal injection, Plaintiffs assert

they now face the greater punishment of death by electrocution or firing squad versus lethal

injection in violation of the Ex Post Facto Clause. The Court agrees.

Both the Constitutions of the United States and of South Carolina forbid ex post facto

legislation. See U.S. Const. art. I, § 10 (“No State shall … pass any … ex post facto law”); see

also S.C. Const. art. I, § 4 (“No … ex post facto law … shall be passed”). These provisions prohibit

legislatures from enacting any “law that changes the punishment, and inflicts a greater punishment,

than the law annexed to the crime, when committed.” Calder v. Bull, 3 U.S. 386, 390 (1798). Put

differently, a law is ex post facto when it “produces a sufficient risk of increasing the measure of

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punishment attached to the covered crimes,” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509

(1995), or “alters the situation of the party to his disadvantage,” State v. Malloy, 95 S.C. 441, 441,

78 S.E. 995, 997 (1913). See also Jernigan v. State, 340 S.C. 256, 264–65, 531 S.E.2d 507, 511–

12 (2000). Thus, although “a change in law that merely affects a mode of procedure but does not

alter substantial personal rights is not ex post facto,” a law that “poses a sufficient risk of increasing

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the measure of punishment” affects an inmate’s substantial personal rights and is not merely

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procedural. Barton v. S.C. Dep’t of Prob. Parole & Pardon Servs., 404 S.C. 395, 403, 413, 745

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S.E.2d 110, 114, 120 (2013).

Lethal injection is the least severe of the three statutorily authorized punishments, and the

amended statute effectively revokes that lesser punishment. When Plaintiffs committed their

crimes and received their death sentences, the default method of execution was lethal injection,

which is according to the Supreme Court of the United States is “believed to be the most humane

[execution method] available.” Baze, 553 U.S. at 62. When carried out properly, it can largely

eliminate the risk of pain that comes with other methods of execution. Id. at 49 (noting that the

first drug of the three-drug protocol “eliminates any meaningful risk that a prisoner would

experience pain from the subsequent injections”); see also Barr v. Lee, 140 S. Ct. 2590, 2591

(2020) (observing that a single-drug protocol is “widely conceded to be able to render a person

fully insensate and does not carry the risks of pain that some have associated with other lethal

injection protocols” (internal quotations omitted)). As a result, there is a “consensus among the

States and the Federal Government that lethal injection is the most humane method of execution.”

Workman v. Bredesen, 486 F.3d 896, 907 (6th Cir. 2007).

The Supreme Court’s decision in Malloy v. South Carolina (Malloy II), 237 U.S. 180

(1915), finding a change in the execution method from hanging to electrocution did not create an

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ex post facto violation, does not undermine this Court’s findings. Malloy, decided over a century

ago, relied on the then- “well grounded belief that electrocution is less painful and more humane

than hanging.” Id. at 180; see also Kemmler, 136 U.S. at 443-44 (approving electrocution as a

method of execution based on the assumption that “application of electricity to the vital parts of

the human body . . . must result in instantaneous, and consequently in painless, death”). As Drs.

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Wikswo and Arden testified, based on review of electrocution procedures and outcomes over the

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one hundred years since Malloy II and Kemmler, the assumption that electrocution causes an

instantaneous and painless death is a fallacy unsupported by scientific evidence or simulations.

Accordingly, the statute’s effect of changing the default method of execution from lethal injection

to electrocution constitutes an ex post facto violation.

Defendants assert a change in execution methods cannot violate the Ex Post Facto Clause

because it does not change the punishment itself (i.e., death) but is merely a change in the method

of carrying out that punishment. They also assert that even if it could, there is no ex post facto

violation unless the new punishments also violate the Eighth Amendment. Neither assertion

comports with the proper standards for reviewing a statute for ex post facto purposes.

Defendants rely on a concluding sentencing in Malloy II stating “[t]he statute under

consideration did not change the penalty – death – for murder” for the proposition that a change in

the method of execution cannot create an ex post facto violation. Malloy II, 237 U.S. at 180. This

reliance ignores the next sentence of the opinion: “The punishment was not increased [by adoption

of electrocution], and some of the odious features incident to the old method [hanging] were

abated.” Id. This demonstrates the ex post facto standard requires comparison between the

methods of execution to determine if the punishment is increased. Even if the United States

Supreme Court did not require such a comparative review, our state’s Supreme Court clearly does.

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In reviewing the same change from hanging to electrocution, the Supreme Court of South Carolina

conducted a comparative analysis of the two methods, describing “the manner in which an

execution by hanging is conducted,” including the adjustments made to ensure “when [the inmate]

drops from the scaffold his neck will be broken, thus destroying the structural formation of the

body” and instances “where the head is completely severed from the body” and “numerous

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instances where the neck is not broken, and the convict died of strangulation” and reviewing the

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Kemmler decision to find that the Supreme Court of the United States “clearly . . . regarded

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electrocution as a more humane method of punishment than that by hanging.” State v. Malloy

(Malloy I), 95 S.C. 441, 441, 78 S.E. 995, 998 (1913). Accordingly, comparative review of the

methods of execution is appropriate under the state and federal ex post facto clauses and

demonstrates that the amended statute subjects Plaintiffs to a greater punishment.

Finally, Defendants’ assertion that there can be no ex post facto violation unless the newly

adopted method of execution is itself a violation of the Eighth Amendment to the United States

Constitution is incorrect. State and federal courts have reviewed changes in punishment where

both the old and new punishments are clearly constitutional under the Eighth Amendment and

found the change nevertheless violates the Ex Post Facto Clause by increasing the punishment. See

Lindsey v. Washington, 301 U.S. 397, 401 (1937) (holding unconstitutional a retroactive law that

removed lesser punishments and made the maximum punishment mandatory); Jernigan v. State,

340 S.C. 256, 531 S.E.2d 507 (2000) (holding the change from annual to biannual parole review

could not be applied retroactively without violating South Carolina’s prohibition on ex post facto

punishment). Thus, regardless of whether electrocution and firing squad violate the Eighth

Amendment (a question not before this Court), subjecting Plaintiffs to them instead of lethal

injection constitutes an ex post facto violation.

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Because the amendments to the execution statute are retroactive, S.C. CODE ANN. § 24-3-

530(3) (2021), the only question is whether the law “increases the punishment” or whether “its

consequences alter[] the situation of a party, to his disadvantage.” Malloy, 95 S.C. at 441, 78 S.E.

at 997 (quotations and emphasis omitted). As discussed in great detail above, electrocution and

firing squad both cause excruciating pain and damage to the body of the condemned inmate. In

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comparison to lethal injection, these methods of execution “inflict a greater punishment” than

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lethal injection. See Calder, 3 U.S. at 390.

III. Counts III, IV, and V: The Use of the Term “Available” Voids the Statute

Plaintiffs raise three arguments that center on the use of the term “available” in the

amended execution methods statute – that it is impermissibly vague; that it must be defined by the

courts, not by Defendants; and that its use violates the Non-Delegation Doctrine of the South

Carolina Constitution.

A. Count III: Due Process Violation

First, Plaintiffs assert that the amended execution statute is unconstitutionally vague

because it does not define the term “available.” According to Plaintiffs, this renders the term

subject to multiple definitions depending on the context and, as such, the statute violates

procedural due process. The Court agrees.3

Procedural due process, which requires fair notice and proper standards for adjudication,

prohibits the state from enforcing a statute that is impermissibly vague. State v. Houey, 375 S.C.

106, 113, 651 S.E.2d 314, 318 (2007). “[T]he constitutional standard for vagueness is whether the

law gives fair notice to those persons to whom the law applies.” In re Amir X.S., 371 S.C. 380,

391–92, 639 S.E.2d, 144, 150 (2006). Specifically, a statute is unconstitutionally vague “if it

3
Plaintiffs also argue that the statute’s failure to address the sequence of events (such as certification and election)
renders it invalid. Because the Court finds vagueness as to the meaning of “available,” it need not address these issues.

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forbids or requires the doing of an act in terms so vague that a person of common intelligence must

necessarily guess as to its meaning and differ as to its application.” Curtis v. State, 345 S.C. 557,

572, 549 S.E.2d 591, 598 (2001).

The amended execution methods statute is unconstitutionally vague because a person of

average intelligence must guess as to its meaning. The words “available” and “unavailable” do

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not have meanings independent of their statutory context. Defendants have asserted that

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“available” plainly means “present or ready for immediate use,” but the word could also mean

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“accessible, obtainable,” or “capable of being gotten; obtainable.” MERRIAM-WEBSTER

DICTIONARY (2022), https://www.merriam-webster.com/dictionary/available; see also AMERICAN

HERITAGE DICTIONARY (2022), https://ahdictionary.com/word/search.html?q=available. The

various definitions of “available” demonstrate that the meaning of the word depends on the context

in which it originates. Therefore, this is not a case in which “the statute’s language is plain,

unambiguous, and conveys a clear, definite meaning,” leaving no room for judicial interpretation.4

S.C. Energy Users Comm. v. S.C. Pub. Serv. Comm’n, 388 S.C. 486, 491, 697 S.E.2d 587, 590

(2010).

Defendants would have this Court interpret the meaning of “available” in the context of

the Legislature amending the statute to allow executions resume despite SCDC’s assertion that it

cannot obtain drugs necessary to carry out executions by lethal injection. However, “context,” as

4
The Supreme Court’s Orders staying Plaintiffs’ execution dates in June 2021 are persuasive in rejecting the idea that
“available” has a plain meaning of “present and ready for immediate use.” As described above, following enactment
of the amended execution methods statute, Director Stirling, interpreting the statute, certified that neither lethal
injection nor firing squad were “available” and SCDC planned to carry out executions by electrocution. However,
after he provided an explanation for why, in his view, the firing squad was “unavailable,” the Supreme Court vacated
the execution notices it had previously issued and stayed all executions because “firing squad [was] currently
unavailable due to [SCDC’s failure to implement it].” Order, State v. Sigmon & Sigmon v. State, Nos. 2002-024388,
2021-000584 (S.C. June 16, 2021); Order, State v. Owens, No. 2006-038802 (June 16, 2021). The Supreme Court’s
rejection of Director Stirling’s interpretation—at least in that instance—indicates that the meaning of “available” is
vague and leaves “a person of common intelligence” to guess as to the meaning of the term in the statute.

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a matter of statutory interpretation, is not a broad reference to legislative debate or public opinion.

Instead, “context” requires the interpreting court to consider not only “the particular clause being

construed, but the undefined word and its meaning with the purpose of the whole statute and the

policy of the law.” S.C. Energy Users Comm., 388 S.C. at 492, 697 S.E.2d at 590.

First, the Court notes this is not a case in which the General Assembly “announced a

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purpose of the Act.” Contra id. at 202-03 & n.2, 733 S.E.2d at 906 (noting that the General

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Assembly expressed its intent in the title of the newly enacted legislation); S.C. Energy Users

Comm., 388 S.C. at 494-95, 697 S.E.2d at 592 (relying, in part, on the General Assembly’s own

explanation of the challenged law’s purpose). Therefore, the Court looks at the purpose based on

the whole statute. Inclusion of the term “if available” to make the election of execution method

conditional provides some support for the idea that the intent of the General Assembly was to

restart executions despite SCDC asserting it could not obtain lethal injection drugs. However, the

choice to retain an election between execution methods (including lethal injection) and adding

firing squad as an authorized method of execution indicates that the General Assembly intended

to do more than merely restart executions by a method other than lethal injection. What these dual

purposes fail to do is provide the Court, Director Stirling, or Plaintiffs with a definition for the

term “available” because the General Assembly failed to provide a definition or standards for

determining availability and the statute’s purpose leaves the term open to multiple definitions. The

statute is, therefore, unconstitutionally vague.

B. Count IV: Statutory Violation Based on the Meaning of “Available”

Plaintiffs also contend that “[w]hatever their obligations to make methods of execution

available under the statute, Defendants have failed to meet those obligations.” This claim is

necessarily dependent on the definition of the term “available” and what obligations that definition

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imposes on Defendants. Because this Court has found the statute unconstitutionally vague as to

the term “available,” this claim cannot and need not be decided at this time.

C. Count V: Violation of the Non-Delegation Doctrine

As a correlate to their claim that the amended execution methods statute is

unconstitutionally vague, Plaintiffs allege that by failing to provide standards for the determination

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of availability, the General Assembly vested unbridled discretion in Director Stirling to decide the

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methods of execution in violation of the non-delegation doctrine of the South Carolina

Constitution. See S.C. Const. art. I, § 8. The Court agrees.

Article I, Section 8 of the South Carolina Constitution provides that “the legislative,

executive, and judicial powers of the government shall be forever separate and distinct from each

other.” Specifically, although the General Assembly “may authorize an administrative agency or

board ‘to fill in the details’ by prescribing rules and regulations for the complete operation and

enforcement of the law within its expressed general purpose,” it may not vest “unbridled,

uncontrolled, or arbitrary power” in another branch of government. Bauer v. S.C. State Housing

Auth., 271 S.C. 219, 232-33, 246 S.E.2d 869, 876 (1978) (quoting S.C. State Highway Dep’t v.

Harbin, 226 S.C. 585, 593, 86 S.E.2d 466, 470 (1955)).

Although “there is no fixed formula for determining the powers which must be exercised

by the legislature itself and those which may be delegated,” the basic guiding principle is that a

delegation must not create an area of judicially unreviewable executive action, in light of the

statutory purpose. Id. at 233, 86 S.E.2d at 876-77. Accordingly, “a statutory delegation is

constitutional as long as [the General Assembly] ‘lays down by legislative act an intelligible

principle to which the person or body authorized to exercise the delegated authority is directed to

conform.’” Gundy v. United States, 139 S. Ct. 2116, 2123 (2019) (quoting Mistretta v. U.S., 488

U.S. 361, 372 (1989)); see also West Virginia v. Envt’l Protection Agency, 142 S.Ct. 2587, 2617
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(2022) (“[T]he framers believed that a republic – a thing of the people – would be more likely to

enact just laws than a regime administered by a ruling class of largely unaccountable

‘ministers.’ . . . [B]y vesting the lawmaking power in the people’s elected representatives, the

Constitution sought to ensure ‘not only that all power would be derived from the people,’ but also

‘that those entrusted with it should be kept in dependence on the people.’” (quoting The Federalist

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No. 11, p. 85 (C. Rossiter ed. 1961) (A. Hamilton) & id., No. 37, at 227 (J. Madison)).

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Without defining “available” or delineating standards for making the determination,

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Director Stirling’s determination of whether any given method is available is judicially

unreviewable. See Bauer, 271 S.C. at 233, 246 S.E.2d at 876 (explaining that a delegation is

unconstitutional where “the courts, when presented with a challenge of the agency’s actions,

would, there being no limitations on the agency’s authority, be unable to judicially review its

actions”). For example, if Director Stirling certifies that lethal injection is unavailable, the statute

provides no mechanism or standards by which the condemned person can challenge that

assessment. Because the statute is silent as to the meaning of “available,” “there is an absence of

standards for guidance of the [Director’s] action,” making it “impossible in a proper proceeding to

ascertain whether the will of [the Legislature] has been obeyed.” Mistretta, 488 U.S. at 379; see

also Harbin, 226 S.C. at 595, 86 S.E.2d at 470–71 (holding that the General Assembly effectuated

an unconstitutional delegation of power when it gave the State Highway Department the authority

“to suspend or revoke a license for any cause which it deems satisfactory”). Under the statute as

written, Director Stirling might determine that a specific method is not “available” for any reason

or for no reason at all.

Defendants’ assertion that the director of SCDC can be presumed to act in good faith does

not remedy the non-delegation issue. “The presumption that an officer will not act arbitrarily but

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will exercise sound judgment and good faith cannot sustain a delegation of unregulated discretion.”

Harbin, 226 S.C. at 596, 86 S.E.2d at 471. In this case, Director Stirling testified credibly and in

good faith. The constitutional problem, however, is that because the statute leaves it to his sole

discretion to decide what “available” means, he can always certify in “good faith” that a given

method is or is not “available,” based on his own definition. The intentions of Director Stirling

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are not in question; the reviewability of his decisions, as an unelected official of the executive, is

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the issue. The statute’s lack of standards and failure to define the term “available” renders it an

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unconstitutional delegation of authority.

IV. Count VII: Violation of the Methods-of-Execution Statute

Finally, the Court notes that even if its legal analysis of the statutory amendments is

incorrect, and the statute passes constitutional muster with respect to vagueness and delegation,

the statute is still rendered invalid by this Court’s findings on the firing squad and electrocution.

Because both methods are unconstitutional, the statute’s creation of an inmate’s right “to elect the

manner of their execution” is violated by the fact that an inmate does not have a choice between

two constitutional methods of execution. See Order, Sigmon, No. 2002-024388; see also Order,

Owens, No. 2006-038802. Accordingly, even Plaintiffs are not entitled to relief on Counts III, IV,

and V, Plaintiffs are entitled to a declaration that the statute is invalid.

CONCLUSION

In 2021, South Carolina turned back the clock and became the only state in the country in

which a person may be forced into the electric chair if he refuses to elect how he will die. In doing

so, the General Assembly ignored advances in scientific research and evolving standards of

humanity and decency.

Based on the foregoing, the Court finds that Plaintiffs are entitled to declaratory judgment

that (1) carrying out executions by electrocution and by firing squad violates the Constitution of

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the State of South Carolina Constitution and its prohibition on cruel, corporal, or unusual

punishments; and (2) S.C. CODE ANN. § 24-3-530, as amended in 2021, is unconstitutional and is,

therefore, invalid. Plaintiffs are also entitled to a permanent injunction as requested.

IT IS, THEREFORE, ORDERED that Plaintiffs’ request for a declaratory judgment is

GRANTED.

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IT IS FURTHER ORDERED that Defendants are permanently enjoined from forcing

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Plaintiffs to be executed by electrocution or by firing squad.

AND IT IS SO ORDERED.

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Richland Common Pleas

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Case Caption: Freddie Eugene Owens , plaintiff, et al vs Bryan P Stirling , defendant,
et al
Case Number: 2021CP4002306

Type: Order/Other

So Ordered

Jocelyn Newman

Electronically signed on 2022-09-06 16:29:20 page 39 of 39

 ELECTRONICALLY FILED - 2022 Sep 14 8:32 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4002306
From: Lambert, Grayson
To: Lindsey S. Vann; Hannah Freedman; Joshua Kendrick; Chris Mills
Cc: Limehouse, Thomas; Daniel Plyler; Austin Reed
Subject: Owens v. Stirling - Notice of Appeal
Date: Wednesday, September 14, 2022 8:28:00 AM
Attachments: Owens v. Stirling - Notice of Appeal.pdf
image001.png

Lindsey, Hannah, Josh, and Chris,

 
Please find attached the notice of appeal from Judge Newman’s order, which I’ll be
filing with the supreme court and the circuit court momentarily.
 
Regards,
Grayson