A South Carolina judge heard arguments on Monday on whether to temporarily halt a law effectively forcing death row prisoners to choose the electric chair or a firing squad.
Attorneys for Brad Sigmon and Freddie Owens, both set to die this month, said the law was unconstitutional because their clients were sentenced under an older version that made lethal injection the default execution method.
If executed, both men will probably die in a 109-year-old electric chair because officials have not put together a firing squad.
The lawsuit was filed shortly after Governor Henry McMaster signed a bill aimed at restarting executions after a 10-year pause when the state ran out of lethal injection drugs. The new law compels a choice to be electrocuted or shot if drugs are not available. Prior to the law, prisoners could choose between injection or electrocution.
Hannah Freedman of Justice 360, representing Owens and Sigmon, said: “We’re here today to address a crisis. 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 18 June after officials indicated the chair was ready. Owens is slated to die on 25 June.
Attorneys for McMaster and the state department of corrections argued the inmates do not have a right to choose. The agency is interpreting the law to mean officials will carry out executions with methods available at the time, attorneys said.
Lawyers for the state pointed to the potential “cruel irony” of lethal injection as evidence suggests some drugs can 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 for the corrections agency.
State circuit court judge Jocelyn Newman said she would rule “in the next few days”.
The lawsuit is one of several last-minute avenues attorneys are pursuing. Sigmon’s attorneys are arguing in federal court that South Carolina is not trying hard enough to obtain drugs.
Owens and Sigmon have run out of traditional appeals. Their execution dates were delayed after the corrections agency acknowledged it could not procure drugs. Sigmon did not choose between electrocution or lethal injection. Owens elected injection.
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.
Three prisoners, all in Utah, have been killed by firing squad since the US reinstated the death penalty in 1977. South Carolina’s last execution took place in 2011 and its drugs expired two years later. There are 37 prisoners awaiting death, all men.
Sigmon, 63, was convicted in 2002 of killing his ex-girlfriend’s parents with a baseball bat. Owens, 43, was sentenced in 1999 for shooting dead a gas station employee, Irene Graves, during a robbery. In 2015, he changed his legal name to Khalil Divine Black Sun Allah.