An ongoing shortage of the drugs used to carry out lethal injections has forced states across the country to scramble if they want to carry out executions. For some states, that has meant revamping their lethal injection protocols again and again, while others have considered returning to older methods that have largely been discarded.
In Utah, lawmakers have brought their state closer than any other to adopting a method that has fallen out of favor. The state’s Senate passed a bill Tuesday that would make a firing squad the state’s backup method of execution if officials cannot obtain lethal injection drugs.
It is unclear whether the bill will become the law of the land in Utah. Gov. Gary R. Herbert (R) has not decided whether he will sign the bill, his office told The Post on Wednesday. A spokeswoman said that there was currently no timeframe for when he might review the final bill and decide on a course of action.
Firing squads have never been formally banned in Utah. The state passed a law in 2004 that repealed the use of firing squads, with an exception in place for people sentenced to death before that law went into effect. These inmates are allowed to choose their method of execution, though lethal injection is the default choice if they do not make a request.
Lethal injection, which is the primary method of execution nationwide, would remain the default method of execution in Utah if the law passes. Herbert’s office said that is not changing.
“However, our state, as is the case with states around the country, is finding it increasingly difficult to obtain the substances required to perform a lethal injection,” Marty Carpenter, a spokesman for Herbert, said in a statement released Tuesday. “We are dedicated to pursuing all reasonable and legal options to obtain those substances to make sure that, when required, we are in a position to carry out this very serious sentence by lethal injection.”
States with lethal injection have been struggling to obtain the necessary drugs due to a drug shortage, which has prompted responses in states that carry out many executions as well as those that almost never put inmates to death. Texas, the country’s most active death-penalty state, is scheduled to run out of lethal injection drugs next week, and officials are not sure what they will do for the five executions scheduled to take place over the weeks that follow. Meanwhile, lawmakers in Wyoming, which has carried out just one execution over the last four decades, have considered allowing the use of firing squads.
The U.S. Supreme Court is hearing a case on lethal injections next month, one that directly relates to the drug shortage and the impact nationwide. As states have tried to find new drugs, at least three executions appeared to go awry, prompting the court to take up an issue it last considered in 2008, when a three-drug protocol was typical nationwide. Since the court acted in 2008, the drug shortage has radically altered the lethal injection landscape in the country, and the justices could potentially change it further.
If lethal injection drugs cannot be obtained in Utah, Carpenter said, the proposed change “would make sure that those instructed to carry out the lawful order of the court and the carefully deliberated decision of the jury can do so.”
The bill says that if Utah cannot “obtain the substance or substances necessary” for a lethal injection at least 30 days before the scheduled execution date, inmates will be killed by a firing squad instead.
In many ways, the potential change in Utah closely mirrors a law that Tennessee adopted last year. Much like Utah, Tennessee had made lethal injection its method of execution, with inmates who committed crimes before 1999 given the ability to choose between the electric chair or lethal injection. The law that went into effect in Tennessee last year says that if execution drugs are unavailable or lethal injection is deemed unconstitutional, executions would automatically be carried out using the electric chair.
Yet the change in Utah would be more extreme, if only because of the method involved. The electric chair is available in eight states, including Oklahoma, which allows it if lethal injection is found to be unconstitutional, and it has been used in 158 executions since the death penalty was reinstated in 1976, according to the Death Penalty Information Center. The firing squad, by comparison, has been used just three times in that period (all in Utah), and is only allowed in Utah and Oklahoma (and where it can be used if lethal injection and electrocution are both deemed unconstitutional).
Utah currently has no lethal injection drugs. The state, which has not carried out a lethal injection since 1999, currently has eight men on its death row, according the Department of Corrections. (A ninth inmate, Douglas Lovell, was sentenced to death by lethal injection, but his case has gone back to trial after the Utah Supreme Court ruled that he could withdraw his guilty plea.)
Three of the inmates on death row have selected the firing squad as their method of execution. Utah carried out the country’s last execution by firing squad in 2010, when the state put convicted murderer Ronnie Lee Gardner to death. That was also the last execution Utah has carried out.