Issue 4: South Carolina Constitution Prohibits Executions By Electric Chair & Firing Squad, Trial Court Says

September 16, 2022 By Kyle C. Barry

Unable to obtain drugs for lethal injections, South Carolina in 2021 revived its electric chair as the default method of execution, while adding firing squad (with a quickly cobbled-together protocol from “the internet”) as another option. Last week, a South Carolina trial court struck down this scheme, finding that it violates the state constitution’s prohibition on excessive punishments. 

As in most other states, the text of South Carolina’s constitution is broader than the 8th  Amendment’s ban on “cruel and unusual” punishments (only 11 states mirror the 8th Amendment verbatim). It prohibits punishments that are any or all of “cruel,” “unusual,” or “corporal” — and the state’s death penalty statute, the court found, is all three. 

At trial, state officials urged the court to ignore these obvious textual differences and treat the state provision as coextensive with — and providing no greater protections than — the 8th Amendment. But noting both text and precedent, the court concluded that the state constitution “offers greater protections than those found in the Constitution of the United States.”

The Court rejects Defendants’ argument that the South Carolina Constitution should be analyzed in the same manner as the United States Constitution. South Carolina’s courts have historically reached the same conclusion. See, e.g., id. at 644, 541 S.E.2d at 841 (finding that the South Carolina Constitution’s prohibition on “invasions of privacy” provides greater protections that the Fourth Amendment to the United States Constitution); Singleton v. State, 313 S.C. 75, 437 S.E.2d 53 (1993) (holding that the state constitutional right to privacy prohibited the state from forcibly medicating a death row inmate in preparation of his execution); State v. Brown, 284 S.C. 407, 326 S.E.2d 410 (1985) (finding that despite being permitted under the federal constitution, castration is a form of mutilation, which is prohibited by Article I, Section 15 of the South Carolina Constitution). 

The court’s full analysis is worth reading, but is concisely summed up in its concluding graf:

In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die. In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency.

Washington Supreme Court Retreats On Youth Sentencing Reform

The Washington Supreme Court has recently been a leading example of how state constitutions can protect people (and especially children) from excessive punishments and unfair criminal prosecutions. Since 2018 the court has struck down the death penalty; effectively decriminalized drug possession throughout the state; prohibited mandatory life without parole sentences for anyone 21 or younger (going beyond the federal age limit of 18); and barred any life without parole sentence (mandatory or otherwise) for youth under 18. 

Last year the court clarified that last ruling, holding in a case called Haag that the ban on LWOP for children also includes de facto LWOP—terms of years so long that they are functionally, if not formally, the same as a life sentence. As a result, the court struck down a 46-year sentence that had been given to a 17-year-old.

But this week — and not even a full year later — two justices flipped and the court reversed course, upholding a 17-year-old’s 61-year sentence in a 5-4 decision that drew multiple sharp dissents. 

The majority unconvincingly argued that Haag was never meant to be a categorical ban on de facto LWOP for all kids, just those whose crimes “reflect youthful immaturity, impetuosity, or failure to appreciate risks and consequences.” (To provide more cover for its harsh result, the majority used a footnote to cynically applaud itself for using this softer language instead of phrases like “irreparable corruption” and “irretrievably depraved character” that have appeared in U.S. Supreme Court opinions.)

Chief Justice Steve Gonzalez, though, had none of it: “The majority rewrites our jurisprudence to profoundly limit the protection we have found our state constitution gives to children,” he wrote in dissent. 

The dramatic about face happened not because of new personnel, but because two justices, Susan Owens and Helen Whitener, switched the votes they had cast in Haag. The question is, why? In separate dissents, Gonzalez and Justice Mary Yu said that racism and racial inequality in these cases is inescapable. Timothy Haag, they pointed out, is white, while Tonelli Anderson, whose 61-year sentence the court upheld, is Black. And both jurists invoked the judiciary’s often-shirked duty to guard against pernicious racial stereotypes like the myth of “superpredator” children:


All too often we have decided that some disfavored group is not due the full protections our founding documents’ promise. We have shrugged our robed shoulders at cruelties embodied in law. We know that trial judges in our own state are more likely to sentence harshly in election years. So it was with the usually Black or brown children, like Tonelli Anderson, who were demonized by the war on crime social panic, racialized fears, and discredited science. “The superpredator theory tapped into and amplified racial stereotypes that date back to the founding of our nation.” State v. Belcher, 342 Conn. 1, 17, 268 A.3d 616 (2022). Under its influence, all too many Black and brown children were explicitly or tacitly classified as “juvenile superpredators” and treated as irredeemable monsters.

And Yu:

There can be no doubt that “adultification is real and can lead to harsher sentences for children of color if care is not taken to consciously avoid biased outcomes.” Miller, 21 Wn. App. 2d at 267. The majority today fails to take such care, leading to a harsh result for a former juvenile offender who is Black, which is irreconcilable with more lenient results obtained by former juvenile offenders who are white. 

Hawaii Supreme Court Sends Prosecutors Back To The Drawing Board In Felony Cases

In 2019, when Hawaii prosecutors tried to charge Richard Obrero with second degree murder and a raft of other charges, a grand jury refused to indict. As the state supreme court would later write, “it voted against allowing the State to subject Obrero to the indignity, expense, and stigma of a criminal prosecution.” That’s no small thing, given the general reputation of grand juries as rubber stamps for prosecutors. 

But rather than take the L, the prosecutors took a tack of lesser resistance. Just hours later they asked a judge to find probable cause and allow the prosecution to proceed by criminal complaint, and ultimately the judge agreed. 

This week the Hawaii Supreme Court put a stop to the prosecution, ruling 3-2 that a state statute requires all serious felonies to be charged by indictment. “HRS § 801-1,” the court said, “plainly states that the State must secure an indictment to subject Obrero to trial and sentencing.”

In a concurring and dissenting opinion, Justice Paula Nakayama disagreed that prosecutors must always seek indictment for serious felonies, but argued that the state constitution prohibits prosecutors from gaming the system with multiple bites at the apple. Once a grand jury says no, she said, prosecutors cannot turn around and present the same case to a judge. 

Prosecutors have unsurprisingly lamented the ruling and said they will seek a legislative reversal. In the meantime, they may have to dismiss cases or offer far more lenient plea deals. But as Obrero’s attorney Thomas Otake pointed out, prosecutors should have never used the criminal complaint process this way in the first place.

“To be clear, blame for any temporary chaos this ruling creates … should be placed on the prosecutors for getting it wrong,” he said. “Not on the Supreme Court for now getting it right.”

Related: Hawaii Supreme Court rules that police can’t lie about lie detectors [The Appeal]

Vacancies & Elections

Michigan Chief Justice To Step Down. Michigan Chief Justice Bridget McCormack is resigning with about six years remaining in her eight-year term. McCormack, the court’s only former public defender, spent the first five years of her legal career with the Legal Aid Society and the Office of the Appellate Defender in New York. In 2008, McCormack co-founded the Michigan Innocence Clinic while also serving as an associate dean of the University of Michigan Law School. 

The vacancy gives Democratic Governor Gretchen Whitmer her first state supreme court appointment. Whomever she picks will then face election in 2024 to serve the final four years of McCormack’s term. 

Two other quick points on McCormack’s surprise announcement: 

First, in just the last six weeks McCormack wrote several important and memorable opinions debunking the legal theories and talking points of reactionary prosecutors and her own Republican colleagues. In one concurrence squarely directed at Republican Justice Brian Zahra (who faces re-election in November), McCormack adder her voice to the national chorus ridiculing the idea of “originalism” (it is akin to consulting a “ouija board” and merely “disguise[s] policy choices,” she wrote) and defended a long line of Michigan precedent saying that, as in South Carolina, the state’s constitution does more to prohibit excessive criminal punishment than does the 8th Amendment. 

And she pulled no punches when Zahra and fellow-Republican Justice David Viviano voted to keep an abortion rights amendment off the ballot because, they said, the spacing was off and words were “jammed” together. McCormack wrote:

They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad. What a sad marker of the times. 

Second, the loss of McCormack in particular makes it all the more important that Whitmer maintain some degree of professional diversity on the court and appoint someone with public defense experience. There are no shortage of options:

Civil rights lawyer will finally get a hearing in New Jersey. Civil rights lawyer Rachel Wainer Apter, who was nominated last year to fill a vacancy on the New Jersey Supreme Court, will finally get a confirmation hearing this fall. But that progress comes with a trade-off: A Republican state senator agreed to withdraw her objection to Wainer Apter because Democratic Governor Phil Murphy also named Republican Douglas Fasciale to fill one of the court’s two other vacancies. And this all still leaves one open seat without a nominee.