Is SC’s Death Penalty Unconstitutional? Did You Know that the SC Constitution Prohibits “Corporal” Punishment?

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Is South Carolina’s death penalty unconstitutional?

A SC judge has held that execution by firing squad and execution by electrocution violate SC’s Constitution, although the court’s Order does not invalidate execution by lethal injection.

The court cites many reasons for the unconstitutionality of execution by firing squad or by the electric chair, but the most interesting one is the prohibition in Article I, § 15 of the SC Constitution against cruel, corporal, or unusual punishment.

Did you know that the SC Constitution prohibits corporal punishment? It is an additional layer of protection not provided under the US Constitution (which prohibits cruel or unusual punishments), and it has been conveniently ignored by SC courts until now…

Execution by Firing Squad and Execution by Electric Chair are Unconstitutional in SC

Following a hearing where the court heard testimony from multiple expert witnesses and SC officials, Circuit Court Judge Jocelyn Newman found SC’s death penalty unconstitutional, to the extent that execution by firing squad and execution by the electric chair violate the SC Constitution because:

  • Both methods of execution violate the SC Constitution’s prohibition on cruel, corporal, or unusual punishments (the court found that each execution method violates all three prohibitions),
  • The SC legislature’s amendments to SC Code § 24-3-530 create an ex post facto violation by increasing the punishment of capital defendants (although the statute says the inmate has their choice, the only method of execution now available is death by electrocution, which is a more severe method of punishment than death by lethal injection),
  • The SC legislature’s amendments to SC Code § 24-3-530 are unconstitutionally vague because the statute now eliminates the options of firing squad or lethal injection unless the Director of the Department of Corrections determines that those methods are “available,” without defining what the term “available” means or providing standards by which a court could determine if the execution methods are “available,” and
  • The SC legislature’s amendments to SC Code § 24-3-530 violate the SC Constitution’s Separation of Powers Clause and the Non-Delegation Doctrine by giving “unbridled discretion” to the Director to determine the method of execution.

Execution by electrocution or by firing squad is “unusual” because the methods aren’t commonly used in the US or SC. Execution by firing squad, in particular, has never been used as a method of execution by the State of SC.

They are cruel because there is a significant risk the inmate will not die immediately and will be subjected to excruciating pain before their death. Execution by firing squad, when the inmate does not immediately die, “constitutes torture, a possibly lingering death, and pain beyond that necessary for the mere extinguishment of death, making the punishment cruel.”

The court found that execution by electrocution does not necessarily result in an immediate and painless death, and, in many cases, is tantamount to burning the inmate alive in a process that leaves the inmate’s body burned and blistered as their internal organs and brains are cooked. The court found that burning a person alive, whether it is tied to a stake over an open flame or tied to an electric chair as current runs through their body, is cruel and unusual punishment.

Is SC’s Death Penalty Unconstitutional? Corporal Punishment is Prohibited by the SC Constitution

Is SC’s death penalty unconstitutional under the US Constitution? Not unless the US Supreme Court says it is, but SC’s Constitution has additional protections.

The US Constitution prohibits “cruel and unusual” punishments. Therefore, when analyzing a punishment to determine if it violates the US Constitution, the court decides whether it is “cruel and unusual” – both adjectives are taken together.

Article I, § 15 of the SC Constitution 1) adds the additional protection of prohibiting “corporal” punishments, and 2) separates each adjective with commas – “nor shall cruel, nor corporal, nor unusual punishment be inflicted,” which means SC courts must analyze a punishment to determine whether it violates any of the three prohibitions individually:

Unlike the federal constitution, South Carolina’s constitution uses disjunctives to distinguish the categories of prohibited punishment. Therefore, the Court must account for all three prohibitions – cruel, unusual, and corporal – in determining whether a specific method of execution (i.e., the inmates’ punishment) is unconstitutional. This is consistent with our state’s 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).

The prohibition on corporal punishment is rarely mentioned in SC appellate opinions – most opinions that reference Article I, §15 omit the term corporal and only talk about “cruel and unusual” punishment as it is referenced in the US Constitution.

The court’s Order references State v. Brown, 284 S.C. 407, 326 S.E.2d 410 (1985), for the proposition that “a method of punishment which mutilates the human body, such as the firing squad, is violative of the South Carolina Constitution,” but that’s not exactly what State v. Brown says…

State v. Brown is a very short opinion that says “[c]astration, a form of mutilation, is prohibited by Article I, § 15.” Like most SC appellate opinions, however, it ignores Article I’s prohibition of “corporal” punishment and says only that “Article I, § 15, of our Constitution prohibits the infliction of cruel and unusual punishment.”

Article I, § 15 doesn’t say, “cruel and unusual punishment.” It says, “nor shall cruel, nor corporal, nor unusual punishment be inflicted,” and it is time for SC’s appellate courts to stop ignoring the plain language of our State’s Constitution.

What does corporal mean?

According to the Merriam-Webster Dictionary (2022), which is our best reliable source to define the term in the absence of SC case law defining “corporal,” the word means “of, relating to, or affecting the body.”

In a discussion of the uses of the word “corporal,” the dictionary says that “The adjective corporal today usually appears in the phrase corporal punishment, which means ‘bodily punishment.’ This used to include such acts as mutilation, branding, imprisonment, and even death.”

How can the courts credibly dispute that any capital punishment (by the way, “capital punishment” originally referred to decapitation; capit– means “head”) is corporal? Perhaps this is why the SC Supreme Court has repeatedly ignored the fact that the SC Constitution prohibits corporal punishment and refused to define the term?

The firing squad undeniably involves corporal punishment, as fragmenting bullets destroy the human body.

Electrocution undeniably involves corporal punishment, as the body is burned, and internal organs are cooked by the electric current.

The court’s opinion did not address the constitutionality of lethal injection, but isn’t the use of a needle to inject fatal drugs into a person’s bloodstream “of, relating to, or affecting the body?”

Is South Carolina’s death penalty unconstitutional?

Is there any form of capital punishment that is not “of, relating to, or affecting the body?”

Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC

The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC including murder and manslaughter charges. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.

If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.