Utah Judge Hears Argument in Prisoners’ Lawsuit Against Execution Protocol

On October 26, 2023, Judge Coral Sanchez of Utah’s Third Circuit Court heard arguments in a lawsuit filed by five death-sentenced prisoners against the State in April. Ralph Menzies, Troy Kell, Michael Archuleta, Douglas Carter, and Taberon Honie seek an order vacating Utah’s current execution protocol and enjoining its use. The lawsuit argues that the State’s two-pronged protocol, with lethal injection as the default method of execution and firing squad as a backup, constitutes cruel and unusual punishment in both methods and is therefore unconstitutional under the Eighth Amendment. At the hearing, the State defended the current protocol and asked the court to dismiss the lawsuit. Judge Sanchez deferred ruling and stated that she would issue a written opinion in about thirty days. The plaintiffs represent the majority of Utah’s death row, which has seven people. Utah is expected to seek an execution date soon for plaintiff Ralph Menzies, whose appeal was denied by the U.S. Supreme Court on October 2.

The lawsuit argues that Utah’s lethal injection protocol “lacks sufficient detail and important safeguards to guard against maladministration of the lethal injection process.” Utah has used a three-drug cocktail beginning with sodium thiopental in the past but does not make its protocol publicly available and has said that it does not have a current supply of sodium thiopental. Assistant Utah Attorney General David Wolf argued to Judge Sanchez that the State does not need to modify the protocol because it permits the use of “similar” drugs as alternatives. “The absence of sodium thiopental was anticipated,” Mr. Wolf said. “The State is free to either obtain sodium thiopental if they can, compound a similar drug, obtain similar drugs that are effective at causing death, and if none of those are available, the firing squad.” Cory Talbot, the plaintiffs’ lawyer, argued that the lack of specific information was unconstitutional. “The State could execute plaintiffs by using indisputably torturous drugs,” said Mr. Talbot, and “plaintiffs would have no way to challenge that.”

Under recent legislative changes, the firing squad will become Utah’s default method if the State cannot obtain lethal injection drugs. The plaintiffs argue that the firing squad is also cruel and unusual as implemented. “Utah’s execution protocol creates substantial risk of a botched firing squad execution because, among other reasons, it creates a realistic possibility that one or more projectiles will miss the heart,” the lawsuit states. Utah’s last execution, of Ronnie Lee Gardner in 2010, occurred by firing squad; the plaintiffs claim that Mr. Gardner did not die instantaneously. Multiple viewers reported that Mr. Gardner moved after he was shot. “Some of us weren’t sure if he had passed away because we could see movement,” said journalist Sandra Yi. “He had his fist clenched and we could see his elbow move up and down.”

Several states have recently authorized firing squads as a method of execution in the wake of widespread difficulties obtaining lethal injection drugs. Firing squad has been by far the least used execution method, with a 2014 book finding that it had been used just 34 times in 8,776 executions since 1890 (0.4%). DPI has found that three of 1,578 executions in the modern era of the death penalty occurred by firing squad (0.2%). At least two executions by firing squad have been botched, both in Utah: Wallace Wilkerson took 27 minutes to die and was thrown out of his chair when bullets missed his heart in 1879, and Eliseo J. Mares did not die for several minutes in 1951 when bullets struck his hip and abdomen. In a report for the prosecution in a 2019 federal case, anesthesiologist Joseph Antognini wrote that prisoners could remain conscious after being shot, which could be “severely painful, especially related to shattering of bone and damage to the spinal cord.” Mr. Talbot told reporters in April that the Utah lawsuit “seeks to protect the rights of prisoners to be free from unnecessary pain at the hands of the government.”