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CONSTITUTIONAL ISSUE IN UTAH FIRING SQUAD EXECUTION

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Until four years ago, Utah law provided for a choice by the convicted to be executed by firing squad. The law provided that in the event that the condemned refused to make the choice it was incumbent upon the sentencing judge to order a firing squad.

The purpose for the use of a firing squad in Utah was to ensure that the blood of the condemned would be caused to flow. That is a shedding of the blood of the condemned would be caused to flow by the actions of another.

It was an important ritual instigated by Mormon Doctrine to give the condemned an opportunity to be forgiven in the afterlife. Problem is that the actual carrying out of the execution constitutes the delivery of a religious ritual by the state which the U.S. constitution forbids under Amendments One and Fourteen.

The execution of Gary Gilmore by firing squad in 1977 in Utah, the first execution after the U.S. Supreme Court lifted its moratorium on the death penalty was, under Constitutional law, a forbidden act. I attempted to stop it by an Amicus curiae brief to the court. However I failed to timely append a motion for leave to file the Brief and thus the firing squad made up of volunteers mostly Mormons carried out the execution.

The need to spill blood for forgiveness of the condemned is best stated by Bruce McConkie in his seminal work, MORMON DOCTRINE, 1966. After acknowledging the sacrifice of the Lord Jesus Christ, the author then goes on:

"But under certain circumstances there are some sins for which the cleansing of Christ does not operate and the law of God is that men must then have their own blood shed to atone for their sins. Murder, for instance is one of these sins; hence we find the Lord commanding capital punishment"

"Joseph Smith taught that there were certain sins so grievous that man may commit, that they will place the transgressor beyond the power of the atonement of Christ. If these offenses are committed, then the blood of Christ will not cleanse them from their sins even though they repent. Therefore their only hope is to have their own blood shed to atone, as far as possible, in their own behalf."

"This doctrine can only be practiced in its fullness in a day when the civil and ecclesiastical laws are administered in the same hands. It was for instance, practiced in the days of Moses, but it was and could not be practiced in this dispensation, except that persons who understood its provisions could and did use their influence to get a form of capital punishment written into the laws of the various states of the union so that the blood of murders could be shed." Pages 92-93

Mr. McConkie nails it right. Its a religious ritual and may not be conducted by the state unless both civil and religious matters are in the same governmental hands [sort of like in the Dark Ages!]. When the doctrine was instituted, the Utah Territory was held in the hands of Brigham young both as Territorial Governor and president of the Mormon Church.

However, while the Supreme Court of Utah may not Constitutionally allow the execution to go forth under state auspices, it could bend to the will of the Mormon Church in pursuit of its ecclesiastical doctrine to save the condemned in the afterlife. All they have to do is to allow for the Mormon Church to deliver the ritual as a private contractor. Thus the state will be shielded from claims of violating the US Constitution and there will be any number of good Mormon men willing to help a brother into forgiveness in the afterlife!

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Retired Designer-Builder formerly practicing Attorney at Law.

Credentials include ordaining a Black man to priesthood in the LDS Church leading to a public struggle with the church yielding and ordaining Black men about 2 years (more...)
 

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