The above shows the space in the Department of Corrections’ Columbia prisons complex for executions, as seen from the witness room. The firing squad chair (left) was added following a 2021 state law that made death by firing squad an option. The electric chair is under the cover. (Provided by the S.C. Department of Corrections)
COLUMBIA — A South Carolina inmate scheduled for execution argues Gov. Henry McMaster can’t fairly decide whether to commute his sentence, since he was the state’s chief prosecutor who fought to keep the condemned on death row.
The final decision on whether Richard Moore lives or dies should instead go to the state’s pardon and parole board, his attorneys argued in a lawsuit filed in federal court Monday. Moore’s attorneys also asked the court to halt his Nov. 1 execution in order to hear out the lawsuit.
Richard Moore (Provided by SC Department of Corrections)
A district judge will hear arguments Tuesday on whether to suspend Moore’s pending execution, according to a Thursday court order.
Moore’s attorneys are arguing that McMaster can’t make a fair, unbiased decision as to whether or not Moore deserves life in prison because the Republican governor successfully fought Moore’s appeals while he was the state’s attorney general from 2003 to 2011.
“For Moore to receive clemency, McMaster would have to renounce years of his own work and that of his former colleagues in the Office of the Attorney General,” Moore’s attorneys wrote.
Moore’s attorneys also pointed to comments McMaster made in 2022, shortly after the state Supreme Court halted Moore’s pending execution, saying he did not plan to commute Moore’s sentence as evidence that he had already made up his mind.
“The jury made their decision in this particular case,” The State reported McMaster saying at the time. “I’ve seen the record, and there have been many hearings up and down, motions, and this penalty is a very strong response to criminal activity — but it is a necessary response.”
Considering those factors, “even a coin toss would undoubtedly offer a fairer procedure,” the lawsuit reads.
Moore has not yet submitted his request for clemency, the governor’s attorneys said in court filings. No governor in the state has granted a death row inmate clemency since federal courts allowed executions to resume in 1976, according to the Death Penalty Information Center.
Allowing the parole board to decide whether or not to give Moore clemency would essentially be rewriting state law, the governor’s attorneys replied. The state constitution gives the governor the ability to commute a prisoner’s death sentence to life in prison. A governor can refer his decision to the parole board, but nothing in state law requires it, McMaster’s attorneys argued.
“Whatever the Governor ultimately decides, that decision is his alone,” their filing reads.
Other courts have allowed other governors who also served as attorney general to decide whether or not to grant clemency, the governor’s attorneys argued. And with attorneys general often going on to become governor, saying they could not decide whether to grant clemency “makes no sense,” the governor’s attorneys argue.
“If Moore has his way, every time a State elects an attorney general as governor, the State will upend its constitutionally prescribed clemency process,” the filing reads.
Although McMaster was attorney general during most of Moore’s appeals process, he was not in that office when Moore was convicted and sentenced in 2001 for killing a Spartanburg gas station worker two years prior. Nor was McMaster attorney general when Moore’s appeals hearings began in 2011, the governor’s attorneys argued.
As for McMaster’s previous comments on Moore’s case, that shouldn’t keep him from deciding on Moore’s sentence, his attorneys argued.
SC’s 2nd execution after a 13-year hiatus is scheduled
In other states, governors have given blanket statements that they will not consider clemency for any death row inmates. Courts have decided those statements should not keep a governor from making that decision, even though they had clearly made up their minds before receiving the actual petitions, McMaster’s attorneys wrote.
Last month, before the state’s first execution in more than 13 years, McMaster was less forthcoming about his decision, telling reporters he would announce it only when after receiving the final call minutes before the scheduled execution.
Still, he suggested he would not grant Freddie Owens clemency, and he did not. His office released his written denial moments before Owens was executed Sept. 20.
McMaster’s staunch support for the death penalty and his background as a prosecutor did not keep him from carefully considering Owens’ application for clemency, his attorneys wrote.
“That the Governor ultimately decided not to commute Owens’s death sentence does not mean the Governor will not diligently review each inmate’s petition,” the filing reads.
Moore is one of five inmates expected to be executed over the next five months, at intervals of at least five weeks. Moore’s execution is set to occur six weeks after Owens died. There was a one-week delay in Moore’s death warrant, since the courts were closed due to Tropical Storm Helene on the first Friday after Owens’ execution.
The process resumed after the state Supreme Court ruled in July that firing squad and electric chair were constitutional means of execution. Those methods, as well as lethal injection, are available for Moore’s upcoming execution, Department of Corrections Director Bryan Stirling recently testified.
As per state law, Moore has until Oct. 18 — two weeks before his scheduled execution — to decide how he’ll die. If he makes no decision, the default method is electrocution.
Moore is one of five inmates questioning how much the state should tell inmates about the drug they could choose to kill them. A secrecy law passed in 2023 that allowed the state to replenish its supply restricts most information on the drug, including where it comes from and how it is tested.
Moore is also awaiting a response from the US Supreme Court to an appeal outside his normal process, filed Sept. 26, asking the court to halt his execution. Moore, who is Black, argued that prosecuting attorneys in his original trial improperly struck Black jurors from the pool, resulting in the all-white jury that recommended his death sentence