Owens v. Stirling

443 S.C. 246

904 S.E.2d 580

Freddie Eugene OWENS, Brad Keith Sigmon, Gary DuBose Terry, and Richard Bernard Moore, Respondents-Appellants,

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-Respondents.

Appellate Case No. 2022-001280

Opinion No. 28222

Supreme Court of South Carolina.

Heard January 5, 2023 and February 6, 2024

Filed July 31, 2024

Rehearing Denied August 16, 2024

Appeal from Richland County, Jocelyn Newman, Circuit Court Judge

Senior Legal Counsel William Grayson Lambert, Chief Legal Counsel Thomas Ashley Limehouse Jr., and Deputy Legal Counsel Erica Wells Shedd, all of Columbia, for Appellant- Respondent Governor Henry McMaster; Daniel Clifton Plyler, Austin Tyler Reed, and Frederick Newman Hanna, Jr., all of Smith Robinson, of Columbia, for Bryan P. Stirling, Director, and the South Carolina Department of Corrections, Appellants-Respondents.

John H. Blume, III, of Ithaca, NY; Lindsey Sterling Vann, Emily C. Paavola, Breedan Matthew Van Winkle, and Allison Ann Franz, all of Justice 360; John Christopher Mills, of J. Christopher Mills, LLC, all of Columbia; and Joshua Snow Kendrick, of Kendrick & Leonard, P.C., of Greenville, for Respondents-Appellants.

John Lafitte Warren, III, of Law Offices of Bill Nettles, of Columbia, for Amicus Curiae Concerned Public Health Professionals, Scientists, Former Regulators, and Educators. Howard Walton Anderson, III, of Truluck Thomason LLC, of Greenville, for Amicus Curiae Pharmaceutical Manufacturers.

JUSTICE FEW:

This is a challenge by four condemned inmates to the constitutionality of section 24-3-530 of the South Carolina Code (Supp. 2023), which sets forth three alternative methods by which the State of South Carolina may carry out the inmates’ death sentences. The inmates do not contend the section violates the Constitution of the United States. We hold section 24-3-530 does not violate the South Carolina Constitution.

I. Background

The death penalty for murder has been an important part of our criminal justice system since the founding of South Carolina as a colony in 1670. As the four inmates point out in their brief, "For most of South Carolina’s history, executions were carried out by hanging." In 1912, joining a national trend toward a less inhumane manner of executing an inmate, South Carolina adopted electrocution as the sole method of carrying out the death penalty. Act No. 402, 1912 S.C. Acts 702, 702 (codified at S.C. Code Ann. § 24-3-530 (1976)). In 1995, South Carolina joined the next national trend seeking to make executions less inhumane—this time the trend toward lethal injection—and amended section 24-3-530 to provide, "A person convicted of a capital crime and having imposed upon him the sentence of death shall suffer the penalty by electrocution or, at the election of the person, lethal injection …." Act No. 108, 1995 S.C. Acts 695, 696. The 1995 version of section 24-3-530 was in effect for the trials and death sentences of each of the four inmates in this case.¹

Beginning in the late 2000s, however, it became increasingly difficult for South Carolina and other states to acquire the drugs necessary to carry out the death penalty by lethal injection. The Supreme Court of the United States explained that this "practical obstacle" to the use of lethal injection resulted "as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences." Glossip v. Gross, 576 U.S. 863, 869-70, 135 S. Ct. 2726, 2733, 192 L. Ed. 2d 761, 769 (2015). The inability to obtain the drugs brought capital punishment to a halt in South Carolina because the 1995 version of section 24-3-530 made lethal injection the default method of execution.²

This allowed an inmate to effectively prevent his execution by electing lethal injection, or by simply declining to elect, because the unavailability of the necessary drugs rendered it impossible for the State to carry out the inmate’s sentence of death.

"Until recently," according to the State’s brief, South Carolina "had, for almost a decade, been unable to obtain the drugs necessary to carry out an execution by lethal injection." According to our research, South Carolina has not executed anyone by lethal injection since 2009. In 2021, in an effort to address the unavailability of the necessary drugs, and yet enable the State to carry out the sentence of death for inmates upon whom that sentence was lawfully imposed, our General Assembly again amended section 24-3-530, this time to permit condemned inmates a choice between three alternative methods of execution. Act No. 43, 2021 S.C. Acts 163, 164. Act 43 added subsection 24-3-530(A), which provides, "A person convicted of a capital crime and having imposed upon him the sentence of death shall suffer the penalty by electrocution or, at the election of the convicted person, by firing squad or lethal injection, if it is available at the time of election …." S.C. Code Ann. 24-3-530(A) (Supp. 2023). The subsection provides that after a condemned inmate is served with a notice of execution, his "election for death by electrocution, firing squad, or lethal injection must be made in writing fourteen days before [the] execution date or it is waived. … If the convicted person waives the right of election, then the penalty must be administered by electrocution." Id.

Act 43 became effective on May 14, 2021. 2021 S.C. Acts at 165. On May 27 and June 1, 2021, the Clerk of this Court—fulfilling the ministerial responsibility set forth in section 17-25-370 of the South Carolina Code (2014)—issued a Notice of Execution in Sigmon’s and Owens’s cases, respectively. On June 11, the Director of the Department of Corrections—Appellant-Respondent Stirling—filed an affidavit with this Court stating, "I hereby certify that, as of this date, the only statutorily approved method of execution available … is electrocution." In a June 8 letter attached to the affidavit, Stirling explained, "As to lethal injection, the … Department of Corrections has been unable, despite numerous and diligent attempts, to acquire the drugs necessary, in usable form, to perform a lethal injection." Stirling continued, "As for firing squad, [the Department] does not currently have the necessary policies and protocols, as required by the statute, for an execution by firing squad."

On June 16, 2021, this Court entered a stay of execution in both cases and directed our Clerk "not to issue another execution notice until the State notifies the Court that the Department of Corrections … has developed and implemented appropriate protocols and policies to carry out executions by firing squad." On March 18, 2022, Stirling wrote the Attorney General asking that he notify this Court "the Department of Corrections … has developed and implemented the appropriate protocols and policies to carry out executions by firing squad." On April 7, our Clerk issued a Notice of Execution in Moore’s case. We later issued a stay of that Notice of Execution.

II. Procedural History

On May 17, 2021—shortly after the enactment of Act 43—Owens and Sigmon brought this declaratory judgment action in circuit court challenging the constitutionality of section 24-3-530. Terry and Moore joined the action later. At the direction of this Court, the circuit court conducted a trial in August 2022. Stirling remained unable to obtain the drugs at the time of trial. At the beginning of trial, the circuit court denied the inmates’ discovery request "asking the State to supply discovery information describing the State’s efforts to obtain the drugs needed for lethal injection." Owens v. Stirling, 438 S.C. 352, 356-57, 882 S.E.2d 858, 860 (2023). At the conclusion of trial, the circuit court ruled the Act unconstitutional. 438 S.C. at 358, 882 S.E.2d at 861. "Specifically, the court declared that (1) carrying out executions by either firing squad or electrocution violates the prohibition on the infliction of cruel, corporal, or unusual punishment in article I, section 15 of the South Carolina Constitution; (2) … the ‘right to elect’ his method of execution when alternatives are deemed ‘available’ … is unconstitutionally vague and an improper delegation of authority; (3) the lack of constitutional alternatives violates the statute; and (4) the retroactive application of the amended statute violates … ex post facto prohibitions …" Id.

On appeal, this Court reversed the discovery ruling, remanded that issue to the circuit court, and held "the remainder of the appeal in abeyance pending the circuit court’s resolution of the discovery issue." 438 S.C. at 354, 882 S.E.2d at 859.

While the case was on remand to the circuit court, our General Assembly enacted and the Governor signed Act 16 of 2023, 2023 S.C. Acts 41, which amended section 24-3-580 of the South Carolina Code (Supp. 2022) to, among other things, forbid the disclosure of any information regarding the State’s acquisition of drugs for use in carrying out an execution by lethal injection. The parties refer to the amended section as the "shield statute." S.C. Code Ann. § 24-3-580 (Supp. 2023). The shield statute took effect on May 12, 2023. 2023 S.C. Acts at 46. On May 17, the State made a motion in this Court "to stay the circuit court proceedings following the Court’s remand order … to give the Department of Corrections time to try to obtain lethal injection drugs with the benefit of" of the shield statute. With the inmates’ consent, we entered an order on June 8 to "stay the proceedings below" until further notice.

On September 19, the State notified this Court, "Once [the Department of Corrections] had the benefit of the shield statute, [the Department] was able to secure the drugs needed for carrying out an execution by lethal injection." The State...