Here's Gov. Cox's full response to Taberon Honie's last attempt at delaying execution

SALT LAKE CITY (KUTV) — On Aug. 1, federal public defenders Therese Day and Eric Zuckerman temporary reprieve in the death sentence of Taberon Honie, arguing, among other things, that the state had rushed the process from the date their client's death warrant was signed less than two months prior.

Below is public defenders' letter to the governor, followed by Cox's response.

Both texts are presented below, followed by their respective unedited PDF versions of Cox's and the public defenders' emails.

__________

Request for temporary reprieve from Taberon Honie's attorneys to Utah Gov. Spencer Cox

August 1, 2024

The Honorable Spencer J. Cox,

Governor of the State of Utah

350 North State Street, Suite 200

Salt Lake City, UT 84114

Sent VIA email

Dear Governor Cox,

The Utah Department of Corrections’ hasty rush to prepare for an execution risks dangerous outcomes. The entire process is shrouded in secrecy and we ask you to exercise your constitutional discretion to grant a temporary reprieve so that adequate time and preparation can be taken to ensure a safe process.

Over three months ago, the Utah Attorney General’s Office sought an execution warrant against Mr. Taberon Honie, a registered member of the Hopi Tribe. Since then, the Utah Department of Corrections has changed its intended execution method three times. Initially, the Department decided on a lethal injection drug combination that differs from the previous combination in its execution protocol, but details of this procedure remain publicly undisclosed as the Department refuses to declassify the relevant documents.

On the eve of the hearing on the State’s application for an execution warrant against Mr. Honie, the Department changed course and unveiled a controversial plan to use a novel and experimental drug combination, including ketamine, fentanyl, and potassium chloride. This plan was supported by an anonymous pharmacist willing to prescribe the drugs in violation of state law, and cited the unavailability of pentobarbital to justify why such an experimental lethal injection combination was necessary.

Mr. Honie filed a lawsuit, and at a hearing three weeks before the scheduled execution, the Department changed course for a third time. They now claim that pentobarbital is available from a secret, anonymous source who plans to charge the state over $200,000 for the drug, more than twice what any other state has paid. Due to a new state secrecy statute that was surreptitiously added to an uncontroversial corrections bill at the last minute, without any public notice or debate, information about the source of the pentobarbital is being kept secret from both Mr. Honie and the public. Reports indicate that after news surfaced about Utah’s experimental drug combination, an anonymous individual contacted Director Redd and connected him with another anonymous individual who purports to be a distributor of pentobarbital and was willing to provide pentobarbital in violation of pharmaceutical distribution agreements.

The Department refuses to provide any original documentation verifying the source’s licensing and other relevant legal compliance, or the drug’s validity, including a certificate of analysis. Furthermore, the secret supplier apparently claims to store pentobarbital somewhere between freezing temperatures and not above 104 degrees Fahrenheit. However, the United States Pharmacopeia requires pentobarbital to be stored at temperatures between 59 and 86 degrees Fahrenheit, raising serious concerns about whether the drug has already been tainted.

There is no way to verify the storage conditions due to the extreme level of secrecy imposed by the Department and since the Department may not even take possession of the drug until three days before the execution, which leaves no time for proper vetting.

MORE INFO: Taberon Honie Death Sentence

• Anti-death penalty group presenting petition to Utah governor ahead of Honie execution
  
• Brother of last executed Utahn reflects on what final 24 hours are like
  
• Lockdown initiated at Utah's prisons 18 hours before Honie execution
  
• The price and secrecy of Taberon Honie's execution
  
• Honie tries to pause execution, which has happened in other states
  

Complicating matters further, the Department refuses to update its execution protocol to include specific instructions for the use of pentobarbital, instead insisting that the outdated execution protocol from 2010 that references entirely different drugs is sufficient to ensure the constitutional administration of a completely different drug and process. Rather than simply updating the execution protocol to account for the drug change, the Department has drafted additional informal instructions that conflict with the written execution protocol. The Department insists both are active and accurate, leading to irreconcilable conflicts that risk confusion during the execution process. For example, there are conflicting instructions for the storage of pentobarbital, which creates a risk the drug will be stored improperly leading to issues with its efficacy, and for its preparation including a lack of clarity regarding the administration of the drug, which risks a lingering death.

This rush is due to the Department’s attempt to meet a court-imposed deadline to execute Mr. Honie on August 8. The Attorney General’s Office did not give the Department any advance notification before seeking an execution warrant, leaving them unaware of the execution timeline and resulting in repeated changes to the intended execution method during the last few months.

The Department’s refusal to update the written protocols to ensure the procedures are clear also deprives execution personnel adequate time to prepare to carry out the execution in compliance with the protocol and the Constitution.

UDC has dismissed Mr. Honie’s concerns, claiming there are no issues because it is no longer using the untested ketamine/fentanyl/potassium chloride combination and instead is using protocols from other states that have been implemented in other executions. While pentobarbital is undoubtedly less risky than the experimental three-drug combination, it is not without risks of unconstitutional pain and suffering. Its administration is still a medical procedure that requires careful implementation by medical professionals and has resulted in botched executions in the past. Additionally, UDC’s lethal injection protocol is not the same as any other state. This is a direct result of UDC’s refusal to amend its 2010 lethal injection procedures. No state carries out executions without an accurate and complete written protocol. The only thing they have in common with other states is the fact that they intend to use pentobarbital.

Utah’s refusal to update its protocols also violates state law. Utah Code Annotated 77-19-10(6) states: “The department shall adopt and enforce rules governing procedures for the execution of judgments of death.” By adopting inconsistent and incomplete protocols, it is impossible for the Department to enforce them. Mr. Honie brought a lawsuit in an attempt to force the Department to comply with its statutory obligations, but the judge dismissed the lawsuit because the law does not allow private citizens to force the Department to follow the law with respect to the execution (even if that citizen is scheduled to be executed according to UDC’s protocols.)

We are asking you to use your power as the Governor to instruct the Department of Corrections to follow the law and update its protocols. Other republican governors have stepped in to make sure that their corrections departments have adequate time to prepare for executions.

For example, in 2022, Alabama Governor Kay Ivey halted executions in that state and ordered a “top-to-bottom review” of the state’s execution procedures. Given that this is the first lethal injection in Utah in over 25 years, and the process has been unnecessarily rushed, it would be prudent for Utah to conduct a similar review of its execution procedures.

Transparency is the hallmark of a free society, yet this process has been anything but transparent. The Department’s current plan, announced less than two weeks ago, leaves less than three weeks for prison personnel to prepare for Mr. Honie’s execution. It would be prudent to give the Department additional time to formalize its execution plans, instead of rushing forward with unclear and conflicting documents as the only guide, and for the State to conduct a review to ensure that any execution occurs in a manner that comports with the Constitution and all applicable laws. We request a temporary reprieve to ensure that Utah’s first lethal injection execution in over 25 years is conducted transparently, with ample time for preparation, planning, and proper documentation for execution personnel, and to ensure that the drugs are safe and effective.

Truly yours,

Therese Day and Eric Zuckerman

Counsel for Mr. Honi

__________

Utah Gov. Spencer Cox response to Taberon Honie attorneys' request for temporary reprieve

Aug. 6, 2024

Therese Day and Eric Zuckerman

Counsel for Taberon Honie

Office of the Federal Public Defender

District of Arizona

Capital Habeas Unit

Dear Ms. Day and Mr. Zuckerman,

I have received and considered your request for a temporary reprieve that you sent me on behalf of your client, Taberon Honie, on Aug. 1, 2024. After thorough review, I am denying your request for a temporary reprieve.

The Utah Constitution gives me the authority to grant reprieves for the vast majority of convictions. See Utah Const. art. VII, 12. Importantly, unlike some governors, I do not have the authority to grant clemency or commute sentences. I am only given the authority to grant temporary reprieves that last until review by the Board of Pardons and Parole, that would likely occur by the next business day. This is not an authority I take lightly. I have evaluated your concerns and other facts surrounding Mr. Honie’s case prior to issuing my decision. In making this decision, I am mindful of the fact that Mr. Honie has had every opportunity to challenge his sentence since it was imposed 25 years ago, in litigation and before the Board of Pardons and Parole. It is my understanding that Mr. Honie has exhausted his appeals before our state courts. He also had a commutation hearing before the Board of Pardons and Parole. The Board declined to commute his sentence.

I also must strongly disagree with how you have characterized the efforts of the Utah Department of Corrections in your request. The Department has gone above and beyond in planning and preparing for Mr. Honie’s execution. It is my understanding that the majority of concerns in your request were previously raised in court. In fact, in reviewing these concerns, the court found the Department has provided Mr. Honie with more than the law requires. Ultimately, my review of your request indicates that a temporary reprieve is not warranted. Indeed, it is not clear to me that any benefit would come from delaying Mr. Honie’s sentence further. I am thus denying your request for a reprieve.

Sincerely,

Spencer J. Cox

Governor

__________

__________