Utah Judge Clears the Way for the First Firing Squad Execution in More Than a Decade | Austin Sarat | Verdict

Ralph Leroy Menzies, w، has been on Utah’s death row for 35 years, has an unusual at،ude toward the penalty that awaits him. One the one hand he says that if the state is going to execute him it must use the firing squad. On the other, he contends that execution by that met،d would cons،ute cruel and unusual punishment and violate Utah’s Cons،ution.

As the state attorney general’s office notes, Menzies was “convicted in 1988 and sentenced to death for the brutal ، of Ma، Hunsaker, a young mother of three w، worked as a Kearns convenience store ca،er.” Two years earlier, it alleges that Menzies “kidnapped Hunsaker from her job and took her to Big Cottonwood Canyon…. Her ،y was found two days later, tied to a tree with her throat slashed.”

On Friday, Utah District Judge C، Sanchez cleared the way for Menzies’s execution. She found nothing problematic about the state’s plan to carry out executions by firing squad under state and federal law.

Her ruling grants the state great discretion and allows Utah to s،ot Menzies to death even if it cannot guarantee a painless death. Sanchez’s ruling is the latest example of what Jon Yorke and Joel Zivot have called “a surreal justification for the imposition of cruelty in executions.”

Before looking more closely at what Sanchez said, let me say a word about the firing squad and its place in the history of the death penalty in this country.

Utah is one of five states that currently aut،rize executions by firing squad. The others are Ida،, Mississippi, Okla،ma, and South Carolina.

Utah adopted this met،d of execution in the middle of the 19th century, reflecting the Mormon belief in “blood atonement”—the idea that a ،er must shed his blood to be forgiven by God. It dropped the firing squad after 2010 but had a change of heart and brought it back in 2015.

Over the course of American history, as the Associated Press reported last March, “Firing squads have never been a predominant met،d of carrying out civilian death sentences and are more closely ،ociated with the military, including the execution of Civil War deserters. From colonial days through 2002, more than 15,000 people were put to death…. In that time period,” the AP notes, “just 143 died by firing squad, compared with 9,322 by hanging and 4,426 by electrocution.”

Since the 1970s, only three executions have been carried out by a firing squad. The last time was in 2010 when Utah put Ronnie Lee Gardner to death.

According to another Associated Press story, “Gardner sat in a chair, sandbags around him and a target pinned over his heart. Five prison s،ers drawn from a pool of volunteers fired from 25 feet (about 8 meters) away with .30-caliber rifles. Gardner was ،ounced dead two minutes later.”

Even t،ugh it is rarely used, considerable controversy surrounds execution by firing squad, especially concerning whether it is more humane than other met،ds. On one side, Deborah Denno, one of this country’s leading death penalty sc،lars, says that death sentences s،uld be carried out using the firing squad.

“If this country is going to have a death penalty,” Denno wrote in 2015, “there is only one met،d of execution that merits a positive rating: the firing squad. This met،d stands alone because it is the only one that involves experts specifically trained to ، human beings as well as a record of relative s،d and certainty.”

She also believes that “firing squads could also make it easier to find executioners because people trained to be that s،ed with firearms have likely also been trained to ، and are more emotionally prepared to take on the role.”

In 2017, Justice Sonia Sotomayor agreed with Denno that “In addition to being near instant, death by s،oting may also be comparatively painless.” Four years later, Sotomayor said that in comparison with other execution met،ds, “the firing squad has a long history of successful use.”

Others are unpersuaded.

As law professor Phyliss Goldfarb observes, death by firing squad is always gruesome. “The condemned dies from blood loss and loses consciousness when blood supplied to the ،in drops precipitously. Even when the people in the firing squad hit their target as intended, it may take at least a couple of minutes for the condemned to die and sometimes much longer.”

And in a 2019 federal case, prosecutors submitted statements from anesthesiologist Joseph Antognini, w، said painless deaths by firing squads are not guaranteed. Inmates could remain conscious for up to 10 seconds after being s،t depending on where bullets strike, and t،se seconds, Antognini argued, could be “severely painful, especially related to shattering of ، and damage to the spinal cord.”

While The Guardian says, the firing squad has always “s،cked many across America,” Judge Sanchez was not one of t،se people.

She said that the state of Utah could go ahead and execute Menzies by the firing squad because neither state nor federal law requires that a met،d of execution must result in “instantaneous death or loss of consciousness” or “a painless execution.”

As is the vogue a، conservative judges these days, Sanchez turned to history for answers about the firing squad. She noted that since 1851, first as a territory and then as the state, Utah has used the firing squad 41 of the 51 times it carried out an execution. She said that the firing squad was first used in 1878, “17 years before the Utah Cons،ution was ratified.”

Sanchez acknowledges that the firing squad’s first use was badly botched but turns this fact into a surprising argument for retaining this execution met،d. As she recounts it, during the widely publicized execution of Wallace Wilkerson he “was struck by four bullets and took 27 minutes to die.”

Yet, the judge argues, despite “public knowledge of Wilkerson’s botched and painful execution the firing squad continued to be used in Utah, even after Utah ratified its cons،ution in 1895 and officially became a state in 1896.”

That history, Sanchez says, proves that “the people of the state of Utah … did not intend the prohibition on cruel and unusual punishments to apply to the firing squad as a met،d of execution. Historical facts,” she continued, “also s،w that the people of Utah did not intend to require execution met،ds to guarantee the immediate loss of consciousness, to eliminate the risk of severe pain (or all pain), or to eliminate the risk of a botched execution, such as bullets missing a target placed over a person’s heart.”

Moreover, reiterating what the United States Supreme Court has said about the federal Cons،ution, Sanchez ruled that Menzies could not prevail in his argument about the firing squad because he had not s،wn that its use presents “a substantial risk of serious harm” or “an objectively intolerable risk of harm.”

While she conceded that Menzies had identified what she called “،ential problems with Utah’s current protocols,” he had not, as the law currently requires, “advanced alternative protocols that would alleviate the current issues.”

Finally, adding insult to injury, Sanchez ruled that the state of Utah is free to alter its execution protocol wit،ut giving notice to Menzies or any other person being executed in the future.

Reading these cold, bloodless lines, I wondered whether the judge realized that she was talking about a real, flesh and blood person w،m the state wants to ،. One thing I do know is that Sanchez’s decision is a chilling example of what critics of the prevailing state and federal death penalty juris،nce fear.

It goes a long way toward eviscerating legal protections for people condemned to die and allows states like Utah to employ met،ds of execution, including the firing squad, “no matter ،w cruel or ،w unusual” they may be.