The information on this page provides a brief overview of capital clemency in South Carolina and is not intended to serve as the basis for a capital clemency petition or campaign. For additional information, please see the full South Carolina Clemency Memo prepared by the ABA Capital Clemency Resource Initiative:
Under Section 14 of Article IV of the South Carolina Constitution, the governor has limited clemency power. The Executive is empowered to grant reprieves or commute a death sentence to life imprisonment. All other clemency actions, including pardons, are granted to the South Carolina Board of Probation, Parole, and Pardon Services.
The Decision Maker(s)
The clemency power is split between the governor, who has the power to commute death sentences to life imprisonment and issue reprieves, and the South Carolina Board of Probation, Parole, and Pardons (“Board”), which may grant pardons or otherwise offer non-binding recommendations to the governor regarding commutation decisions. The Supreme Court of South Carolina has affirmed this distribution of authority. Moreover, the Supreme Court of South Carolina has held that clemency is an exercise of mercy reserved for the Executive.
The governor’s commutation and reprieve powers are given wide discretion in both case law and statute. Section 24-21-50 of the South Carolina Codes sets out the procedures of the Board. That section states that “[t]he board shall grant hearings and permit arguments and appearances by counsel or any individual before it at any such hearing while considering a case for parole, pardon, or any other form of clemency provided for under law. No prisoner has a right of confrontation at the hearing.”
While exclusive power to grant clemency rests with the governor, the Board’s Policy and Procedure Manual states that the governor may request that the Board submit a non-binding recommendation for the commutation of a death sentence. Though the governor may act without reference to the Board, if she seeks and subsequently rejects their recommendation, she must present her reasons for this decision to the General Assembly. The Policy and Procedure document also affirms that the governor’s decision is not subject to judicial review.
There is no official website for the governor’s clemency function, though the Board of Probations, Parole, and Pardon Services does have a web presence.
How Petitions are Brought
In South Carolina, the governor is the exclusive decision maker with respect to capital clemency. Although the governor can ask the Board for a nonbinding recommendation, counsel at the Board have stated that such a review has not been requested in recent memory. Previous clemency petitions were addressed directly to the governor but did not include a specific mailing address where capital clemency applications are regularly to be brought. The current governor’s public mailing address is:
The Honorable Henry McMaster State House 1100 Gervais Street Columbia, South Carolina 29201
There is no information suggesting that a hearing typically takes place in reviewing a petition for capital clemency. No hearing is required by the statute governing the Board—and, indeed, this statute specifically provides that there is no right to a hearing or to otherwise confront witnesses in clemency. Nevertheless, there is nothing indicating that a hearing cannot take place if requested by the petitioner and/or petitioner’s counsel.
Responding to a Petition
There is no indication in the clemency statute governing that the governor is required to make public any information concerning either a grant or denial of clemency. However, as stated prior, if the governor requests that the Board review a clemency petition and rejects the Board’s recommendation, she must give reasons for her decision to the General Assembly.
Current Clemency Decision Maker(s)
The Board of Probation, Parole, and Pardon Services: Henry S. Eldridge (Chair), Kim Frederick (Vice Chair), Christopher F. Gibbs, Mollie DuPriest Taylor (Secretary), Frank D. Wideman, Reno R. Boyd, Dr. Lonnie Randolph. Complete biographies can be found online.
The Governor: Republican Governor Henry McMaster is currently serving in his first term as South Carolina Governor. He was sworn in on January 24, 2017, after former governor Nikki Haley was appointed to serve as U.S. Ambassador to the United Nations and was elected to a full term in November 2018. Prior to becoming governor, McMaster was elected Lieutenant Governor on November 4, 2014. McMaster has also served as South Carolina Attorney General (2003-2011), served on the South Carolina State Ports Authority (2011-2016), and was co-chair of the South Carolina Ethics Reform Commission (2012-2013).
Notably, Governor McMaster was a very early supporter of President Donald J. Trump, endorsing him in January 2016. On Trump, McMaster said, “You know, we’ve got a saying in the South that says it’s not the dog in the fight that’s important, it’s the fight in the dog that’s important. Well this dog’s got plenty of fight — and it’s gonna take some fighting.” McMaster delivered the nominating speech for Trump at the Republican National Convention.
In November 2017, McMaster pushed the general assembly to pass a secrecy law that would allow the seller of the death penalty drugs to remain secret. McMaster argued that drug companies were refusing to provide the state with drugs needed for execution because their identities were not shielded.
In the midst of a ten-year span without an execution in the state, McMaster signed a bill into law in May 2021 that compels death row prisoners to choose between execution by firing squad or electric chair if the state does not possess the drugs necessary for lethal injection. The bill aims to end the decade-long halt in executions by providing alternatives to the dwindling supply of lethal drugs in the state. South Carolina is one of four states to still permit death by a firing squad and one of nine to allow executions via the electric chair.
There have been two somewhat recent denials of capital clemency in South Carolina. Richard Charles Johnson was convicted of killing two people, a motorist who had picked up Johnson, and a state trooper who stopped the vehicle. Johnson was initially convicted and sentenced to death in 1986. The South Carolina Supreme Court overturned his conviction on appeal, in part due to statements by the prosecutor at closing which touched on Johnson’s lack of remorse and failure to admit guilt. The court also found error in that significant evidence of prior bad acts was introduced during the guilt phase of trial, that had no bearing on Johnson’s culpability for the crime at issue. Johnson was retried and again convicted and sentenced to death, a sentence that was upheld on appeal, although similar errors regarding the admissibility of prior bad acts were raised.
Johnson’s clemency petition was largely premised on his claimed innocence of Smalls’ murder. The petition maintained that the sole evidence the jury heard was the inconsistent testimony of Johnson’s co-defendants. Both were offered immunity in exchange for their testimony and Johnson’s attorneys contended that either was equally likely to be responsible for the death of both the motorist, Swanson, and of Officer Smalls. Johnson also submitted that he was intoxicated at the time of Smalls’ shooting and had no memory of the incident. His clemency campaign also attracted broad support, including national coalitions such as the ACLU.
Despite public pressure in favor of a commutation, Governor Jim Hodges denied Johnson’s clemency petition, and Johnson was executed on May 3, 2002.
The other notable clemency denial in South Carolina was that of Joseph Ernest Atkins. Atkins was a Vietnam veteran who was convicted of killing his father and a young neighbor while he was out on parole for killing his brother. Atkins’ clemency petition relied on several factors. Most prominent was his post-traumatic stress disorder, stemming from his military service during the Vietnam War. Atkins also cited the physical and emotional abuse he suffered at the hands of his father and brother. Atkins did not deny that he committed the crimes, but rather sought mercy based on his mental illness and history of childhood trauma. Governor Jim Hodges denied clemency alongside a statement issued by his spokesman affirming his general support for the death penalty and reluctance to overturn a jury verdict.