Federal judge is skeptical about taking away South Carolina governor's clemency power

COLUMBIA, S.C. -- A federal judge appears unlikely to grant the request of a South Carolina inmate scheduled to be executed in just over three weeks to take away the power of granting him clemency from the governor.

Richard Moore's lawyers said Gov. Henry McMaster can't fairly decide whether to reduce his death sentence to life in prison because he was a state attorney general who oversaw prosecutors fighting Moore's appeals and McMaster told reporters he had no intention of commuting a sentence in 2022 when an execution date was set for Moore and then canceled. They want the judge to instead give clemency power to a parole board, the lieutenant governor or someone else they believe is more likely to be impartial.

But Judge Mary Geiger Lewis said she is averse to take away the constitutionally given right to the governor alone to decide clemency in South Carolina and thinks McMaster will carefully consider Moore's petition when it is filed. Moore's execution is scheduled for Nov. 1.

Moore “has access to the process. He just doesn't think the person who has to exercise the process is going to be favorable to him,” Lewis said at a hearing Tuesday.

She suggested she might rule from the bench at Tuesday's hearing, but said she would take time to issue a written order because of the case's importance to Moore, the governor and the law.

“Ever since this came to my desk, it is all I have thought about,” Lewis said.

Moore, 59, is facing the death penalty for the September 1999 shooting of store clerk James Mahoney. Moore went into the Spartanburg County store unarmed to rob it, and the two ended up in a shootout after Moore was able to take one of Mahoney’s guns. Moore was wounded in the arm, while Mahoney died from a bullet to the chest.

State law gives Moore until Friday to decide between dying by lethal injection, a firing squad or the electric chair. His execution would mark the second in South Carolina after a 13-year pause because of the state not being able to obtain a drug needed for lethal injection.

No South Carolina governor has ever granted clemency in the modern era of the death penalty. McMaster has said he decides each case on its merits after a thorough review.

Lewis asked McMaster's lawyers if the governor would considered making a sworn statement he would consider Moore's clemency petition fairly. They said they would prefer not to because the power is exclusively given to the executive branch, but if the judge insisted, the governor would do it.

McMaster told reporters outside the Statehouse about 30 minutes after the hearing that he has not made up his mind. He said he will announce his decision minutes before Moore's execution is set to begin and after he has been told all appeals are exhausted, as is tradition in South Carolina.

"My intention is to study the facts, to understand the facts, to understand whatever is available about the matter and then make a very considered opinion," McMaster said.

Moore’s lawyers have said he is an ideal candidate for ending up with a life sentence because he is a mentor for his fellow inmates.

“Over the past 20 years, Moore has worked to make up for his tragic mistakes by being a loving and supportive father, grandfather, and friend. He has an exemplary prison record,” they wrote.