By Grace Koppenheffer

As morbid as it is, most of us have probably thought about the way we would want to die, and the ways we definitely would not.  We instinctively recoil against those deaths that seem the most painful, the most inhumane.

Richard Bernard Moore, a death row inmate in South Carolina, was the first South Carolina prisoner to decide the method of his execution.[1]  In 2021, after South Carolina had had problems for years securing lethal injection drugs, the state passed a law that “made the electric chair the default execution method instead of lethal injection, and also codified the firing squad as an alternative option for condemned inmates.”[2]  Moore’s options were either death via electric chair or death via firing squad, and although he found both options unconstitutional, “he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice.”[3]  His death was scheduled for April 29, 2022, but the South Carolina Supreme Court issued a temporary stay on April 20, 2022.[4]

Moore’s death would have been the first time South Carolina killed an inmate via firing squad, and only the fourth firing squad execution in the country since 1976.[5]  Although four states (Mississippi, Oklahoma, South Carolina, and Utah) allow death by firing squad, the previous three all happened in Utah, with the most recent firing squad execution in 2010.[6]  In Utah, “[t]he prisoner is strapped into a chair, has a hood put over his or her face and a target placed on his or her chest above the heart.”[7]  In the event of stray bullets or ricochet, sandbags are placed around the chair.[8]  There are five sharpshooters, but one has a blank, so that each shooter can have “psychological deniability,” which may itself be imperfect because “they can tell the difference between live ammunition and a blank.”[9]  The South Carolina law provides, “[i]n the case of a firing squad execution, three volunteer prison workers will train their rifles on the condemned prisoner’s heart.”[10]

The Eighth Amendment guarantees that “cruel and unusual punishment [cannot be] inflicted.”[11]  The United States Supreme Court, however, has never struck down a method of carrying out the death penalty as unconstitutional.[12]  In the 1878 case Utah v. Wilkerson,[13] the Court explicitly stated that death by firing squad was constitutional: “[c]ruel and unusual punishments are forbidden by the Constitution, but . . . the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment.”[14]  The Court, however, acknowledged that “punishments of torture,” including being “embowelled alive, beheaded, and quartered,” all practices that were at one time legal but which even the Court in 1878 recognized as “atrocious,” would be unconstitutional.[15]  When Wilkerson was executed sixty days after the Court’s decision, he chose not to be blindfolded.[16]  “[W]hen the sheriff commanded, ‘Ready, aim,’ Wilkerson would draw up his shoulders, causing the target to move and the bullets to miss the target, causing him to jump forward, screaming, ‘Oh God!’”[17] It took him twenty-seven minutes to die, bleeding and withering on the ground.[18]

In Baze v. Rees,[19] followed by Glossip v. Gross[20] and Bucklew v. Precythe,[21] the Court created a two-pronged test for an inmate to challenge the constitutionality of the method of his death: “first, he must demonstrate that the method of execution is very likely to cause substantial harm or suffering, and second, he must present a feasible, readily implemented, less painful alternative that is prescribed by at least one state.”[22]

Scholars, politicians, and those sentenced to death have various opinions about execution by firing squad.  In 2014, Representative Paul Ray from Utah described execution by firing squad as “probably the most humane way to kill somebody.”[23]  Some scholars also argue that the firing squad is better than lethal injection as a means of execution because it is less likely to be botched and it is less painful.[24]  Additionally, “[i]nmates in Alabama, Ohio, Tennessee, and Texas have asked to be executed by firing squad, arguing that lethal injection is very likely to have a risk of serious harm,” providing some evidence that if forced to choose, people would rather die by firing squad.[25]  Even Moore chose death by firing squad over the electric chair when he had to choose between them.

On the other hand, some, like Moore’s lawyers, have argued that execution by firing squad is “barbaric.”[26]  Some scholars contend that death by firing squad is not any less painful or less likely to be botched because “[h]urling projectiles toward an inmate in the hopes of causing cardiac failure, asphyxiation, or some other condition that will result in death, is far from an exact science.”[27]  Additionally, the inmates requesting execution by firing squad reside in states that do not allow that method to carry out the death penalty.[28]  In those states that do allow inmates to choose death by firing squad, they rarely do, and if they do elect such a method, they do so for reasons other than to reduce pain.[29]

Moreover, the Americans Civil Liberties Union of South Carolina has criticized South Carolina’s death penalty legislation as “modern-day lynching,” in part because only 27% of the state’s population is black but over half of those on death row are black.[30]  Executive director Frank Knaack stated, “[l]et’s not kid ourselves, this bill is about finding a new way to restart executions within a racist, arbitrary, and error-prone system.  We cannot divorce the method of execution from the system itself.”[31]

For those who oppose carrying out the death penalty by firing squad, the best route may be to go through legislatures rather than trying to have courts invalidate the method.  After all, “[s]hocking as they are, archaic methods of execution can affect how the public regards capital punishment,” and the legislature is designed to respond to public sentiment.[32]  If our modern sensibilities recoil from the thought of the firing squad being humane, not only will we as a society have to grapple with what methods are humane, but also we will need to grapple with whether the death penalty as a whole is humane.  As one judge put it, “[i]f we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”[33]

[1] Michelle Liu, South Carolina Inmate Picks Firing Squad over Electric Chair, AP News (Apr. 15, 2022),

[2] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, NPR (Apr. 20, 2022, 2:38 PM),

[3] Liu, supra note 1.

[4] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2.

[5] Id.

[6] Id.

[7] Laurel Wamsley, With Lethal Injections Harder To Come by, Some States Are Turning to Firing Squads, NPR (May 19, 2021, 5:00 AM)),

[8] Id.

[9] Id.

[10] Liu, supra note 1.

[11] U.S. Const. amend. VIII.

[12] Methods of Execution, Death Penalty Info. Ctr., (last visited Apr. 25, 2022).

[13] 99 U.S. 130 (1878).

[14] Id. at 134–35

[15] Id. at 135–36.

[16] Rob Warden & Daniel Lennard, Death in America Under Color of Law: Our Long, Inglorious Experience with Capital Punishment, 13 Nw. J. L. & Soc. Pol’y 194, 214 (2018).

[17] Id.

[18] Id.

[19] 553 U.S. 35 (2008) (plurality opinion).

[20] 135 S. Ct. 2726 (2015).

[21] 139 S. Ct. 1112 (2019).

[22] Stephanie Moran, Note, A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, 74 U. Mia. L. Rev. 276, 296 (2019).

[23] Mark Berman, The Recent History of States Contemplating Firing Squads and Other Execution Methods, Wash. Post (May 22, 2014),

[24] See, e.g., Moran, supra note 22, at 299 (“[S]cientific research indicates that the initial pain felt by the victim may be comparable to being punched in the chest. There is some indication that the pain may also be hampered by an ‘adrenaline surge.’”) (quoting Christopher Q. Cutler, Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah’s Controversial Use of the Firing Squad, 50 Cleveland St. L. Rev. 335, 413 (2002)).

[25] Id. at 304.

[26] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2

[27] Michael Conklin, No, the Firing Squad Is Not Better Than Lethal Injection: A Response to Stephanie Moran’s A Modest Proposal, 44 Seattle U. L. Rev. 357, 369 (2021).

[28] Id. at 362

[29] Id.

[30] Wamsley, supra note 7.

[31] Id.

[32] Id.

[33] Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, C.J., dissenting), vacated by Ryan v. Wood, 573 U.S. 976 (2014).

By Kelsey Mellan

On November 21, 2016, the Fourth Circuit issued a published opinion in Bennett v. Stirling, a prisoner death penalty appeal involving a prosecutor’s racially charged remarks throughout a sentencing hearing. Petitioner Johnny Bennett (“Bennett”) challenged the imposition of a capital sentence in South Carolina courts. While the Fourth Circuit recognized that courts typically give great deference to death sentence decisions pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this court agreed with the district court that prosecution comments made during Bennett’s sentencing were so racially charged that a fair proceeding was impossible. Therefore, the Fourth Circuit affirmed the district court’s grant of habeas relief.

Facts & Procedural History

In 1995, Bennett, an African-American male, was convicted of murder, kidnapping, armed robbery, and larceny in a South Carolina trial court. A mixed-race jury sentenced Bennett to death for murder. On appeal, the South Carolina Supreme Court upheld the convictions but reversed the death sentence, ordering the trial court to conduct a new sentencing hearing. This sentencing hearing was held in 2000, in front of a panel composed of only white jurors. Before this jury, prosecutor Donald Myers (“Myers”) chose to use racially charged language from the beginning of his opening argument all the way throughout the hearing until the end of his closing statement (as opposed to the racially neutral presentation he had given to the mixed-race jury). He referred to Bennett as “King Kong,” a “caveman,” a “monster,” and a “big old tiger.” Myers also alluded to Bennett’s sexual relationship with a “blonde-headed lady,” informing the jury of Bennett’s interracial relationship with one of the prison guards at the correctional facility where he was housed.

Despite these numerous derogatory remarks, the trial court denied Bennett’s motion for a new trial. The court determined that the labels of “King Kong” and “cave man” did not result in the denial of Bennett’s due process rights and therefore did not warrant a new sentencing hearing. The South Carolina Supreme Court affirmed the death sentence, holding that the derogatory remarks “did not improperly inject racial issues into the trial.” In 2008, Bennett sought post-conviction relief in state court, alleging that one of the jurors in the 2000 panel was racially biased and thus the seating of that juror violated his 6th and 14th Amendment rights to an impartial jury. The state court denied relief on the grounds that the juror was not actually biased at the time of the 2000 hearing, and the South Carolina Supreme Court denied certiorari.

In 2014, Bennett filed the instant petition for federal habeas relief under 28 U.S.C. § 2254 on the grounds of prosecutorial misconduct and juror bias. In Bennett v. Stirling (D.S.C. 2016), the district court granted relief on both grounds, vacated Bennett’s death sentence, and remanded the case to the Lexington County Court of General Sessions for resentencing within 180 days of the order. The district court vacated and remanded because the state court unreasonably determined that Myer’s racially motivated derogatory remarks about Bennett appealed to racial prejudice. This case stemmed from the respondents’ appeal.

AEDPA Deference

 Under § 2254(d), as amended by the AEDPA, a federal court may not grant a state prisoner’s habeas petition unless the state court’s adjudication of the prisoner’s claim was legally or factually unreasonable. Relief is only allowed if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” However, relief can be permitted where the state court’s decision was based on an unreasonable determination of the facts based on the evidence presented in the State court. Therefore, federal courts must give state courts great deference. Section 2254 imposes a substantial hurdle to habeas relief because, as the Supreme Court stated in Jackson v. Virginia, habeas relief is a “guard against extreme malfunctions in…criminal justice systems” rather than ordinary error correction.

The “clearly established Federal law” at issue in this case is from the Supreme Court decision, Darden v. Wainwright. In Darden, the Supreme Court held that a prosecutor’s improper comments offend the Constitution if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Courts must view the questionable comments in the context of the entire record, rather than analyzing the comments in a vacuum. However, the Supreme Court noted in United States v. Young, “the line separating acceptable from improper advocacy is not easily drawn.” While prosecutors retain substantial latitude to present their cases as they see fit, the Constitution condemns racially derogatory prosecutorial arguments. Moreover, because the punishment at issue is a death sentence, the Fourth Circuit could not “avert their eyes from racial prejudice” because of the finality of the punishment.

Prosecutions’ Racially Charged Remarks Constituted Due Process Violation

The Fourth Circuit decided the South Carolina state courts unreasonably determined that the prosecutor’s comments about Bennett throughout the trial were not appeals to racial prejudice and thus, unreasonably concluded that Bennett’s due process rights were not violated. In particular, the prosecutor’s derogatory references to Bennett during his closing arguments – characterizing Bennett as a primitive, sub-human species and a wild animal – were “unmistakably calculated to inflame racial fears” in the jury. Additionally, the Fourth Circuit determined that the state court’s acceptance of the prosecution’s “King Kong” and “caveman” comments was obviously unreasonable. “The prosecutor’s comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution.” While courts must be deferential to prosecutor’s trial strategies, the prosecutor’s specific derogatory statements about Bennett “plugged into potent symbols of racial prejudice, encouraging the jury to fear Bennett or regard him as less human on account of his race.”

In addition to the content of the derogatory remarks, the particular circumstances of the case confirmed that the comments were appeals to racial prejudice rather than neutral descriptions of Bennett’s size or strength. The prosecutor could have easily highlighted Bennett’s size or physical features in a neutral matter. In fact, in the earlier sentencing hearing, the state used cardboard cutouts to convey Bennett’s size in comparison to his victim. However, the prosecutor methodically chose inflammatory phrases to dehumanize Bennett to the all white jury.

The Fourth Circuit further explained that the prosecutor’s statements regarding Bennett’s race violated his due process rights when considering the “procedural distortion wrought by the challenged remarks.” In McCleskey v. Kemp, the Supreme Court emphasized the importance of jurors focusing “their collective judgment on the unique characteristics of a particular criminal defendant.” Here, the Fourth Circuit was firmly convinced that the prosecutor’s closing comments risked “reducing Bennett to his race” and diminished the jury’s ability to objectively determine an appropriate punishment.

Moreover, when looking to the record as a whole, the Fourth Circuit decided there was nothing isolated about the prosecutor’s derogatory references. In Donnelly v. DeChristoforo, the Supreme Court decided that an isolated remark from a prosecutor regarding a habeas petitioner’s race did not violate his due process rights as it “was but one moment in an extended trial.” Here, in contrast, the prosecutor’s misconduct was “pronounced and persistent with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.” When taken in comparison to the racially-neutral arguments made to the mixed-race jury, it became all the more evident that the prosecutor’s derogatory language was unnecessary and calculated. The Fourth Circuit ultimately held that the motivation behind the prosecutor’s prejudiced comments, coupled with the lack of curative instruction to the jury, warranted habeas relief. The Fourth Circuit concluded its discussion in this case by cautioning: “The criminal justice system must win the trust of all Americans by delivering justice without regard to the race or ethnicity of those who come before it…a proceeding like this one threatens to tear that trust apart.”


Therefore, the Fourth Circuit affirmed the district court’s grant of habeas relief.