Utah Judge Clears the Way for Use of the Firing Squad

On December 22, 2023, Judge Coral Sanchez of Utah’s Third Circuit Court dismissed a lawsuit brought by five men on the state’s death row that challenged Utah’s two execution methods and protocols. Ralph Menzies, Troy Kell, Michael Archuleta, Douglas Carter, and Taberon Honie sought an order vacating Utah’s current execution protocols for lethal injection and firing squad and enjoining their future use. The prisoners argue that both methods constitute cruel and unusual punishment under the Eighth Amendment. In her decision to dismiss their lawsuit, Judge Sanchez wrote that the “plaintiffs have offered no legal precedent or historical facts to support facts to support their interpretation of the cruel and unusual punishment clause: that a method of execution must result in instantaneous death.” Judge Sanchez further stated that the “plaintiff’s interpretation of Utah’s prohibition on cruel and unusual punishments requires a painless execution, not just a (sic) execution without severe pain.”  Judge Sanchez’s order clears the way for Utah to execute prisoners by firing squad, a method last used in 2010.

Utah’s lethal injection protocol employs a three-drug cocktail that includes sodium thiopental, a drug the U.S. Food and Drug Administration has said has no legal use in the United States. Assistant Utah Attorney General David Wolf argued to Judge Sanchez in November 2023 that the protocol allows the use of a drug similar to sodium thiopental. If unable to acquire sodium thiopental or a similar drug, the state is allowed to carry out executions by firing squad. In 2010, Utah executed Ronnie Gardner by firing squad and plaintiffs argue that Mr. Gardner did not have an instantaneous death. Following Mr. Gardner’s execution, journalist Sandra Yi wrote that “some of [the execution witnesses] weren’t sure if [Mr. Gardner] had passed away because we could see movement… He had his fist clenched and we could see his elbow move up and down.”  

In her decision to dismiss the suit, Judge Sanchez also wrote that “plaintiffs have identified problems with Utah’s current protocols but have not advanced alternative protocols that would alleviate the current issues, such as a protocol about where to place a target on a person’s body to reduce the prolonged consciousness when being executed by a firing squad.” The onerous standard set by the U.S. Supreme Court in Bucklew v. Precythe requires successful plaintiffs to “show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” 

The five plaintiffs have 21 days from the issuance of Judge Sanchez’s decision to file a motion to amend their original complaint. If they do not do so, their lawsuit will be dismissed without prejudice. Judge Sanchez’s decision comes after a motion to dismiss the suit was filed by the Utah Attorney General’s Office. That office released the following statement after Judge Sanchez’s order:

For those sentenced to death before May 2004, prisoners may choose between execution by lethal injection or by a firing squad. If sentenced after that date, prisoners must be executed by lethal injection, unless this method is ruled unconstitutional or unavailable. If Utah cannot obtain the necessary drugs, the state may make use of the firing squad.

Mr. Menzies was sentenced to death in 1988 for the 1986 murder of a gas station employee in Kearns, Utah. The Utah Attorney General’s Office has announced they intend to seek a death warrant for Mr. Menzies, whose sentence of death is to be carried out by a firing squad.