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.”