A new era of capital punishment: Legal challenges to South Carolina’s firing squad

By Samiar Nefzi

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    COLUMBIA, South Carolina (WLOS) — South Carolina’s options for execution have caught the attention of anti-death penalty advocates across the country after the use of firing squad was signed into law.

“We’re playing God,” said Randy Gardner, the brother of the last person executed by firing squad in the U.S. “If you’re pro-life, everybody’s life matters. You don’t kill people to show killing is wrong.”

The firing squad was signed into law in South Carolina on May 14, 2021, after gaining bipartisan support (32-11), which was later signed off by Governor Henry McMaster.

“It still haunts me,” Gardner said. “I don’t think I’ll ever get over it.”

In 2010, Ronnie Lee Gardner was executed in Utah, marking the last firing squad execution to take place.

“It was state sanctioned murder,” Gardner said. “It was by our own government.”

He recently told News 13 that the graphic photos of the four bullets lodged in his brother’s chest will be a sight he’ll never forget.

“The holes in his chest, it looked like a bowling ball with an extra hole in it,” he explained.

Ever since, Gardner has made it his mission to advocate against the death penalty across the country. He’s been outspoken about 57-year-old Richard Moore’s case, a man from Greenville, South Carolina.

“I don’t understand why people are allowing it to happen,” Gardner said. “This is modern times, not the wild west age.”

HOW SOUTH CAROLINA’S FIRING SQUAD CAME TO BE For nearly 10 years, South Carolina has been at a standstill with executions, until last year when Democratic State Senator Dick Harpootlian and Republican State Senator Greg Hembree argued in favor of adding the firing squad as an option.

“Use of the electric chair is not my preferred method,” Sen. Hembree said. “It’s not as humane as a firing squad, quite frankly. You want to use the most humane method available.”

Following the 2021 approval, the South Carolina Department of Corrections (SCDC) spent $53,600 on supplies and materials to make changes to the execution chamber.

Overview of changes at the Capital Punishment Facility:

The chamber now includes a chair in which inmates will sit if they choose execution by firing squad. The chair is in a corner of the room away from the current electric chair, which cannot be moved. Bullet-resistant glass has been installed between the witness room and death chamber. The firing squad chair is metal with restraints and is surrounded by protective equipment. The chair faces a wall with a rectangular opening 15 feet away. Overview of protocols for execution by firing squad:

Three firing squad members will be behind the wall, with rifles facing the inmate through the opening. The rifles and open portal will not be visible from the witness room. All three rifles will be loaded with live ammunition. The witnesses will see the right-side profile of the inmate. The inmate will not face the witness room directly. The electric chair faces the witnesses directly. The inmate will wear a prison-issued uniform and be escorted into the chamber. The inmate will be given the opportunity to make a last statement. The inmate will be strapped into the chair, and a hood will be placed over his head. A small aim point will be placed over his heart by a member of the execution team. After the warden reads the execution order, the team will fire. After the shots, a doctor will examine the inmate. After the inmate is declared dead, the curtain will be drawn, and witnesses escorted out. Members of the firing squad are volunteer SCDC employees. They must meet certain qualifications.

DEATH BY FIRING SQUAD IN THE U.S. “What the firing squad kind of does to bodies is visibly gruesome,” said Ngozi Ndulue with the Death Penalty Information Center, a Washington D.C. nonprofit organization.

As of May 4, 2022, firing squad executions have only been approved in Mississippi, Oklahoma, Utah and most recently South Carolina – with three modern executions that all took place in Utah.

Inmates executed by firing squad in the modern era:

36-year-old Gary Gilmore – 1977 (Utah) 36-year-old John Taylor – 1996 (Utah) 49-year-old Ronnie Lee Gardner – 2010 (Utah) KUTV, based in Salt Lake City, Utah, covered John Taylor’s execution in 1996. This is how reporter Michael Ross described the execution:

There was a single violent moment when bullets blew apart the white target over Taylor’s heart. But, if execution is set to be done, this seemed as efficient and painless method as any. SEEKING ALTERNATIVES TO LETHAL INJECTION The firing squad gained the attention of lawmakers in South Carolina after pharmaceutical companies essentially stopped selling states necessary drugs to create the lethal injection serum.

Representatives with Pfizer told News 13: “We strongly object to the use of any of our products in the lethal injection process for capital punishment.”

The state eventually hit a snag when their lethal injection supply expired in 2013.

Since 1985, lethal injection became the state’s primary method of execution, with electrocution as a secondary option, according to the Death Penalty Information Center.

South Carolina execution history since 1985:

Lethal Injections – 36 Electrocutions – 7

A work-around for 14 states to obtain drugs for lethal injection has been to create a shield law, a spokesperson for SCDC said, essentially keeping the names of companies that supply the drugs private.

“Other states have passed shield laws; we have just not been able to do that,” Sen. Hembree stated.

A spokesperson for SCDC wrote in a statement the department has remained unsuccessful when trying to obtain lethal injection drugs:

Companies won’t sell execution drugs to South Carolina until our state law is changed to shield their identities from anti-death penalty activists, who have been very effective in chilling the sale of drugs to departments of corrections across the country. “This has been attempted previously for quite a few years, “Sen. Hembree said.

Hembree explained legislation to institute a shield was blocked by what he believes were members of the general assembly who do not support the death penalty.

“It’s been an effective strategy,” he said. “It will no longer be effective.”

APRIL 29, 2022 EXECUTION HALTED; WHAT’S NEXT? The firing squad was set to be unveiled as South Carolina’s newest method of execution on April 29, 2022, after Richard Moore, of Greenville, elected the method over the electric chair.

“It’s defiantly cruel and unusual punishment,” said Gardner, while discussing Moore’s case with News 13. “I think making them pick between firing squad and electric chair, how dare them. I think it’s very brutal and barbaric.”

“It’s shocking,” said Kristin Collins with the Center for Death Penalty Litigation, a Durham, North Carolina-based nonprofit. “We are used to a death penalty that does appear more sanitized and appear more like a medical procedure.”

In a Hail Mary attempt, Moore and his legal team challenged the legality and constitutionality of the firing squad and electric chair in Richland County. Moore wrote in a statement:

I believe this election is forcing me to choose between two unconstitutional methods of execution, and I do not intend to waive any challenges to electrocution or firing squad by making an election.

Moore’s statement brings to light questions around the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

“The Eighth Amendment is something that, it’s sort of bigger than any individual case,” Collins said. “It’s a very subjective thing, deciding what constitutes cruel and unusual. And that’s something that also changes over time.”

On April 20, 2022 the South Carolina Supreme Court granted Moore a temporary stay on his execution.

“I do believe that the firing squad has been upheld as a constitutionally sound method of execution,” Sen. Hembree said. “I think it will be up, ultimately upheld in the courts”

It remains unclear why the temporary stay order was issued. The state Supreme Court wrote that they would release further information at a later date.

Moore’s legal team asked for a stay on his execution for two reasons:

To appeal his case to the Supreme Court of the United States, based on an opinion written by South Carolina Justice Kaye Hearn, who wrote Moore’s actions were not the “worst of the worst,” meaning the death penalty would be disproportionate in his case. For the ongoing lawsuit in Richland County challenging the electric chair and firing squad.

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