South Carolina "Whichcraft" Law Challenged: Court Hears Expert Evidence On Execution Law that Forces People to Choose between Authorities Murdering Them by Electrocution or Firing Squad

From [EJI] A Richland County court heard expert evidence last week in a lawsuit challenging a law that forces people facing execution to choose between electrocution and firing squad. 

The plaintiffs—four people sentenced to death in South Carolina—argue that both methods violate South Carolina’s constitutional prohibition against cruel, corporal, or unusual punishments. 

“The electric chair and the firing squad are antiquated, barbaric methods of execution that virtually all American jurisdictions have left behind,” the plaintiffs alleged in their lawsuit.

In 2021, South Carolina passed a new law providing that, if the department of corrections determines that lethal injection is not available, the person will be electrocuted in South Carolina’s 110-year-old electric chair unless they elect death by firing squad. The person is required to make that election in writing before the execution date.

Richard Moore was scheduled to be executed on April 29, 2022. South Carolina corrections officials said they could not obtain lethal injection drugs, which forced Mr. Moore to elect death by firing squad to avoid the electric chair.

“I believe this election is forcing me to choose between two unconstitutional methods of execution,” Mr. Moore said in a written statement on April 15, “and I do not intend to waive any challenges to electrocution or firing squad by making an election.”

The state supreme court issued stays of execution for Richard Moore and Brad Sigmon, who faced a May 13, 2022, execution date, which allowed their lawsuit to proceed to a hearing.

Electrocution and Firing Squad Both “Painful and Excruciating”

At the hearing in Richland County last week, South Carolina Department of Corrections director Bryan Stirling and Colie Rushton, director of security and emergency operations, testified about their knowledge of execution protocols—or lack thereof.

As the Greenville News reported, Mr. Stirling said he did not know the age of the state’s electric chair and was not involved in any testing of the chair. Both Stirling and Rushton, who has worked at SCDC for nearly five decades, said they did not know why a specific three-phase voltage and timing sequence is used in electrocutions.

Mr. Rushton testified that he developed the state’s firing squad protocol based on information from Utah—one of four states where the firing squad is legal—and the internet.

John Wikswo, a Vanderbilt Univeristy professor with expertise in molecular physiology and biomedical engineering, testified that no scientific evidence shows that electrocution causes instantaneous or painless death. He added: “The animal husbandry community, after intense work, has concluded that they would not do to an animal in the slaughterhouse what is done in South Carolina in the death penalty.” 

On Wednesday, forensic pathologist Dr. Jonathan Arden joined three expert witnesses for the State to testify about the effect of electrocution on the  brain, heart, and skin and how quickly someone may lose consciousness when shot directly in the heart by a firing squad, the Greenville News reported.

Dr. Arden testified that, “As long as the person is still conscious when that person would be perceiving the high voltage of electricity through his or her body, that in and of itself would be painful and excruciating.”

“I’m sorry to have to say this so plainly, but you get the effects on parts of the body, including internal organs, that’s the equivalent of cooking,” he said.

In firing squad executions, “bullets have to break through soft tissue and bones to reach the heart, where sharpshooters are aiming,” Dr. Arden testified. “If someone were to be shot like that and then have a brief period of consciousness and were to breathe or move, that person would be experiencing excruciating pain.”

Dr. D’Michelle DuPre, a former police officer and medical examiner, said that the firing squad would be “very rapid” and painless—but only if the shooters have the requisite level of marksmanship skill. She admitted on cross examination that she’d seen nothing in the protocol requiring a certain level of marksmanship for the shooters. 

And even purportedly qualified marksmen have failed to hit their target. Wallace Wilkerson suffered for 27 minutes after a Utah firing squad shot him in the torso and arm, shattering the bone; and in 1951, another Utah firing squad shot Eliseo Mares in the hip and abdomen, rather than the heart, and he bled to death painfully over the course of several minutes.

Closing arguments completed the hearing last Thursday. The court has 30 days to issue a decision, according to the state supreme court’s order.