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.