With weeks to go before Taberon Honie’s scheduled execution, his attorneys have filed a new lawsuit raising concerns about the never-before-used drug combination Utah officials expect to use to kill the death row inmate.
They’ve also questioned the prison’s execution protocols — which haven’t been updated since 2010, and don’t specifically reference the drug combination of ketamine, fentanyl and potassium chloride that state officials have planned.
And the protocols don’t include any plan for what should happen if the ketamine or fentanyl cause Honie to hallucinate or be in distress instead of the desired result, which is to make him unconscious. They asked 3rd District Court Judge Laura Jones on Thursday to stop state officials from executing Honie until those protocols are updated.
Honie’s attorney, Eric Zuckerman, argued in the lawsuit that prison officials may be hesitant to update the 2010 protocols because they know it could possibly open the door for Honie to appeal the new version.
Prison officials have acknowledged that some minor changes need to be made — especially considering that the old prison from 2010 no longer exists and the execution will take place at the new prison in Salt Lake City — but have said that they don’t believe the protocol for the actual execution needs to be updated.
The department chose ketamine, fentanyl and potassium chloride “on the recommendation of medical professionals,” according to a news release. Utah law requires lethal injections be conducted with “sodium thiopental or other equally or more effective substance sufficient to cause death.”
It’s illegal to import sodium thiopental, a fast-acting barbiturate, and the only U.S.-based supplier stopped production in 2011.
Zuckerman argued that prison officials have tried to make written plans outside of the official protocol for how the execution will happen. But what’s been proposed, he argued, “have been piecemeal, incomplete, and at times, incoherent.”
“Because the new drugs do not have the same properties as those they are replacing, simply substituting the new drugs in the old protocol is insufficient and dangerous,” he wrote.
Glen Mills, the communications director for the Department of Corrections, said Friday that prison officials expected Honie to challenge the protocol, and “we’ll be watching to see how it plays out.” In the meantime, he said, they are moving forward with planning for the execution, as they are legally required to do.
In July 1998, Honie called his ex-girlfriend and demanded she visit him, threatening to kill her family if she refused. Later that evening, sometime before midnight, Honie took a cab to the house of Claudia Benn, his ex-girlfriend’s mother. He broke the door in with a rock and then beat, bit, stabbed and sexually assaulted Benn as he killed her, court documents state.
The new lawsuit indicates that prison officials have obtained the drugs they plan to use to execute Honie. But it appears they were caught flat-footed when the Utah attorney general’s office sought an execution warrant.
In a May text message thread, attached to the lawsuit as an exhibit, Utah Department of Corrections administrators were told that their own attorney — who also works at the attorney general’s office — had not been told that A.G. prosecutors had filed the request for a death warrant for Honie. He found out from Honie’s federal defender.
“They filed it last night. Nice to get notified!!!” Mills, the DOC communications director, wrote in the text thread, following up with another message: “Unbelievable!”
“Oh wow,” wrote Brian Redd, the director over the prison system. “Unreal.”
Mills said Friday that corrections officials had been informed last year that two executions were possible — Honie and another death row inmate, named Ralph Menzies. So they had started making plans, he said. The frustration expressed in the texts, Mills said, was about not being notified that a request for death warrant had been filed.
Zuckerman also argued in the lawsuit that prison officials have no written backup plan if the execution is botched, and have decided that Honie’s legal counsel cannot bring a phone or laptop into prison while it is carried out — which Zuckerman said he would use to alert a judge and ask for a stop to the execution if something goes wrong and Honie appears to be suffering.
Honie’s attorney noted that lethal injections result in the most botched executions around the country, and expressed his concern about the untested combination that the state plans to use — which he said the state selected on the recommendation of a pharmacist, not a trained medical doctor.
First, he argued that ketamine is a dissociative anesthetic — not a barbiturate, which is more commonly used to anesthetize a prisoner — which he said could cause Honie to experience extreme feelings of terror or delirium, particularly in the “hostile, death-inducing environment” of a death chamber. It could also cause Honie to vomit and possibly choke, he said, since he will be strapped to a gurney.
Then, Zuckerman argued that the large dose of fentanyl prison officials plans to use could cause chest wall rigidity, known as “wooden chest” syndrome, which could cause Honie to feel like his chest has turned to stone and make him unable to breathe. While fentanyl can relieve pain, Zuckerman argued, it does not relieve the sensation of suffocating.
He also argued that both drugs have a “ceiling effect for pain relief,” meaning that at a certain dosage, it doesn’t provide any further pain relief. He said that for both drugs, the ceiling effect occurs at half the dose that Utah authorities plan to use at Honie’s execution.
And if those drugs don’t work to sedate Honie, the potassium chloride which stops his heart will cause Honie extreme pain, Zuckerman argued — “a torturous death akin to the feeling of being set on fire.”
Zuckerman argued that if the state moves forward with the execution as currently planned, it would violate Utah’s Constitution by subjecting Honie to cruel and unusual punishment. He offered instead that Utah could execute Honie with a single dose of pentobarbital, which serves as the anesthetic and fatal drug.
He wrote in the lawsuit that this has become the preferred method in other states, which have been able to obtain the drug since as recently as last year. Yet, he said the pharmacist who advised Utah to use the three-drug combination believed that “pentobarbital is unavailable.”
A court date has not yet been set in this latest lawsuit. Honie also has a commutation hearing scheduled for later this month, where he will ask Utah’s parole board to spare his life.