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A South Carolina inmate scheduled to be executed in just over three weeks is asking a federal judge to take away the power of granting clemency from the governor who is a former state attorney general and place it with a parole board.
The South Carolina constitution gives the governor the sole right to spare an inmate's life, and Gov. Henry McMaster's lawyers said he intends to retain it.
Lawyers for Richard Moore are arguing that McMaster cannot fairly consider the inmate's request to reduce his death sentence to life without parole because for eight years starting in 2003 he was the state's lead prosecutor and oversaw attorneys who successfully fought to uphold Moore's death sentence.
“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,” the attorneys wrote in asking a federal judge to pause the execution until the matter can be fully resolved.
McMaster has taken tough-on-crime stances and also in the past said he is against parole. The governor said in 2022 that he had no intention to commute Moore's sentence when an execution date was a possibility, Moore's attorneys said in court papers filed Monday.
Lawyers for McMaster said he has made no decision on whether to grant Moore clemency, and courts have repeatedly said attorneys general who become governors do not give up their rights to decide whether to set aside death sentences.
Currently, nine states, including South Carolina, are run by former attorneys general. Among the top prosecutors cited by the state who later become governors and made decisions on clemency is former President Bill Clinton in Arkansas.
“Moore’s claims are based on the underlying assumption that the Governor will not commute his death sentence. Whatever the Governor ultimately decides, that decision is his alone,” McMaster's attorneys wrote.
A hearing on Moore's request is scheduled for Tuesday in federal court in Columbia.
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, while Mahoney died from a bullet to the chest.
Moore didn't call 911. Instead, his blood droplets were found on Mahoney as he stepped over the clerk and stole money from the register.
State law gives Moore until Oct. 18 to decide or by default that he will be electrocuted. 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 through review
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.
McMaster has said he will follow longtime tradition in South Carolina and wait until minutes before an execution is set to begin to announce whether he will grant clemency in a phone call prison officials make to see if there are any final appeals or other reasons to spare an inmate's life.
And his lawyers said his decision on whether to spare Moore life will be made under a different set of circumstances than his decision to fight to have Moore's death sentence upheld on appeal.
“Clemency is an act of grace,” the governor's attorneys wrote. “Grace is given to someone who is undeserving of a reprieve, so granting clemency in no way requires the decisionmaker to ‘renounce’ his previous work.”
