Estimated read time: 4-5 minutes
- Utah Supreme Court considers when death row inmates can challenge execution protocols.
- Amy Fly, the attorney for two death row inmates, argued they still have constitutional rights during their execution.
- Joshua Davidson, assistant Utah solicitor general, argued not providing a deadline would cause unnecessary delays.
SALT LAKE CITY — An attorney for two Utah death row inmates, Michael Anthony Archuleta and Troy Michael Kell, argued in front of the Utah Supreme Court Wednesday that they should always be able to challenge the constitutionality of Utah's execution protocols.
"Prisoners do not lose their constitutional rights during an execution. This case is about how and when and how they can enforce those rights under Utah's Constitution," Amy Fly said.
Fly, with the federal public defender's office, asked the Supreme Court judges to reverse a district court decision that said claims the death row inmates filed against the execution protocols were filed too late and were not sufficient. She said the claims were filed shortly after federal appeals for Ralph Menzies, who has since died of natural causes, had been resolved, and the other two joined in.
She said the ruling the high court reaches will also impact every future death row inmate in Utah.
If the case is dismissed, courts will resolve claims on hypothetical facts, with "guesswork" based on an execution protocol that Utah does not have to follow, Fly claimed. She said these inmates would have to file challenges to the process before it is relevant for them, calling it an undue burden on the inmates and a waste of court resources.
"They have to challenge not just the protocol that will actually be used, but multiple protocols," Fly said.
The attorney argued there should not be a statute of limitations for claims about the constitutional rights a prisoner has during their execution, but if there is one she suggested four years after their federal appeal resolves, as that is the final appeal death row inmates have a right to.
Joshua Davidson, assistant Utah solicitor general, argued that not having a deadline for filing claims about the protocol goes against the interest of the state and victims' family members to have the execution happen in a timely fashion and would instead encourage unnecessary delays.
"The system requires finality, and enforcing the statute of limitations promotes stability and public confidence in the judicial system," he said.
He argued any substantial change in the protocol would reset the clock allowing a death row inmate to file the lawsuit, and any lawsuits against the current protocol could have already been filed. He said there has not been any substantial change in the firing squad protocol, and the protocol outlines that if there is not a drug available, a firing squad is a backup execution method for those who are set to die by lethal injection.
"They're making it sound like, willy nilly, without any notice to them," he said.
Davidson said Utah's execution protocol gives discretion and anticipates the need for use of other drugs. He said since the death penalty has been found to be constitutional, there has to be a constitutional way to carry it out.
Fly said Utah is the only state with a "completely discretionary" execution protocol; in other states there is discretion but material aspects that could lead to constitutional challenges are not allowed to be changed.
She used the example of Taberon Honie, and said two months before he was set to be executed, Utah announced it would use a "completely different protocol." During his execution, he was injected with twice the dosage required — not because there was a medical necessity, Fly said, but because the state did not want to waste drugs already put in a second syringe. She said there were multiple documents outlining the protocol for his execution that did not match.
"That's what arbitrary decision-making looks like, and it happened during the execution. We had no advanced notice of it," Fly said.
She said when decisions are made "on the fly," there is no opportunity to challenge them in the courts. She said because executions are rare in Utah, inmates are not able to see protocol by looking at past executions.
Fly said she recognizes that if the court rules that the claim needs to be filed after federal appeals are completed, then this current case would be dismissed. However, that ruling would allow her clients to challenge the protocols later.
Archuleta was convicted of aggravated murder for torturing, raping and murdering Gordon Ray Church, a 28-year-old Southern Utah University theater student, on Nov. 22, 1988.
Kell was sentenced to death on Aug. 8, 1996 for the brutal killing of a fellow inmate, Lonnie Blackmon, who was stabbed 67 times with a homemade shank at the Utah State Prison in Gunnison. Previously, Kell was given a life sentence without parole in Nevada for shooting a man six times in the face in 1986.
