COLUMBIA (AP) — A South Carolina judge should block the executions of two men scheduled to die later this month so the court can evaluate a new law that effectively forces death row prisoners to choose to die by either electric chair or firing squad, prisoners’ attorneys argued Monday.
Attorneys for Brad Sigmon and Freddie Owens, two men set to die later this month, said the law is unconstitutional because their clients were sentenced under an older iteration of the statute that made lethal injection the default execution method. If South Carolina carries out the executions as scheduled, both men would likely die in the state’s 109-year-old electric chair because prison officials have not yet put together a firing squad.
The lawsuit was filed shortly after Gov. Henry McMaster signed into law a bill aimed at restarting executions after an involuntary 10-year pause, when the state ran out of lethal injection drugs. The new law compels the condemned to choose to be electrocuted or shot if lethal injection drugs are not available. Prior to the law, prisoners could choose between lethal injection or electrocution.
The new law is first time a U.S. jurisdiction has attempted to revert to an earlier method of execution, argued Hannah Freedman of Justice 360, the organization representing Owens and Sigmon that is seeking to block the law.
“We’re here today to address a crisis,” Freedman argued in state court Monday. “They’re attempting to make South Carolina the first American jurisdiction to revert to a more brutal, less humane, more onerous method of execution.”
The South Carolina Supreme Court set Sigmon’s execution for June 18 after prison officials indicated the state’s electric chair was ready for use. Owens is slated to die a week later, on June 25.
Attorneys for Gov. Henry McMaster and the South Carolina Department of Corrections argued the inmates also do not have a right to choose between methods. The agency is interpreting the law to mean that after receiving execution notices from state Supreme Court, officials will move to carry out the executions with the methods available at the time, attorneys said.
Lawyers for the state pointed to the potential ” cruel irony ” of lethal injection as a growing body of evidence suggests some of the drugs administered could inflict torturous pain while a paralyzing agent conceals suffering.
“South Carolina is not going back to a method of execution that is intended to cause pain,” said Daniel Plyler, a lawyer representing the corrections agency.
State Circuit Court Judge Jocelyn Newman said she would make a decision “within the next few days” on whether to temporarily block the law as the lawsuit makes its way through the courts.
The lawsuit filed in state court is just one of several last-minute avenues the attorneys are pursuing to stall or halt the executions. Sigmon’s attorneys are also arguing in federal court that South Carolina is not trying hard enough to get ahold of the lethal injection drugs.
Three men, including Owens and Sigmon, have run out of traditional appeals in recent months, leading the court to schedule their execution dates earlier this year, before the passage of the new law. Those dates were delayed after the corrections agency acknowledged it could not procure lethal injection drugs to carry out the executions.
At the time, Sigmon did not choose between electrocution or lethal injection, the two methods available by law; Owens elected lethal injection.
On Monday, Newman said the firing squad component of the new law was a “red herring” in the case, observing that the true question is how lawmakers have effectively shifted the default method of execution.
South Carolina is one of eight states to still use the electric chair and four to allow a firing squad, according to the Death Penalty Information Center. Prison officials have been researching how firing squads carry out executions elsewhere, but have not indicated a timeline for when the firing squad will be up and running.
Three prisoners, all in Utah, have been killed by firing squad since the U.S. reinstated the death penalty in 1977.
South Carolina’s last execution took place in 2011, and its batch of lethal injection drugs expired two years later. There are 37 prisoners awaiting death in South Carolina, all of them men.
Sigmon, 63, has lived on death row since 2002, when he was convicted of killing his ex-girlfriend’s parents with a baseball bat in Greenville County.
Owens, 43, was first sentenced to death in 1999 for the shooting murder two years earlier of a gas station employee, Irene Graves, during an armed robbery, also in Greenville County. He changed his legal name to Khalil Divine Black Sun Allah in 2015, court filings note.
Liu is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.