by L. Kay Gillespie
[p.11]On 21 January 1878 the case of Wallace Wilkerson versus Utah was heard by the Supreme Court of the United States. Wilkerson, convicted of killing William Baxter in a saloon argument over cards on 11 June 1877, had been sentenced to die by firing squad. His appeal was the first eighth amendment challenge to the death penalty ever heard by the Supreme Court. The court ruled “that execution by shooting was not prohibited by the Eighth Amendment’s cruel and unusual punishment clause, in that the method used (quite apart from the act of dying) did not entail torture or unnecessary cruelty.”1
This challenge points to the commonly held belief in the uniqueness of Utah’s death penalty. Utah allows the condemned to choose between a firing squad and another form of death, originally beheading or hanging but now lethal injection. However, seven states in addition to Utah offer more than one form of execution. Only Utah, Idaho, and Oklahoma provide the option of a firing squad, but other states (as well as the military) have used firing squads. Those states in [p.12]which more than one method of execution is provided generally allow the condemned to choose how he or she will die.
Utah is unique in that the state’s practice of allowing the condemned his choice of execution stems from a religious doctrine: only through choosing a method of execution which results in blood being “spilled” (or shed) can the condemned hope to receive forgiveness in the next life. The existence and evolution of this belief—known in Mormon theology as “blood atonement”—is complex.
After arriving in the Salt Lake valley in July 1847, early Mormon settlers established the state of Deseret, ruled by the laws of God’s new kingdom. The area they settled belonged to Mexico, but this did not daunt their zeal. Under the leadership of Brigham Young, they planned for settlements encompassing parts of the present states of Utah, Idaho, Arizona, Nevada, California, Colorado, New Mexico, Wyoming, and Oregon. The area passed to the United States in 1848, and territorial status was granted in 1850. The first territorial legislature enacted a criminal code based on one originally created by the general assembly of the state of Deseret, a body controlled by Mormon leaders.2 The punishment prescribed for first-degree murder was execution with the condemned allowed to choose among firing squad, hanging, or beheading.
Mormon leaders believed that Jesus’ blood did not forgive murderers, who could personally “atone” for their sin only by offering their own blood. Brigham Young, for example, maintained: “There are sins that men commit for which they cannot receive forgiveness in this world, or in that which is to come, and if they had their eyes open to see their true condition, they would be perfectly willing to have their blood spilt upon the ground, that the smoke thereof might ascend to heaven as an offering for their sins; and the smoking incense would atone for their sin; whereas, if such is not the case, they will stick to them and remain upon them [p.13]in the spirit world.”3 Young’s counselor Jedediah M. Grant agreed: “I say, that there are men and women that I would advise to go to the President immediately, and ask him to appoint a committee to attend to their case; and then let a place be selected, and let that committee shed their blood.”4 On another occasion he argued, “Brethren and sisters, we want you to repent and forsake your sins. And you who have committed sins that cannot be forgiven through baptism, let your blood be shed…before God as an atonement for your sins…”5 Apostle Heber C. Kimball also echoed these sentiments: “I think it would be an excellent thing for this people to be sanctified from such persons, and have them cleansed from our midst, by making an atonement.”6 On another occasion he commented, “If a man has shed innocent blood, he will have to pay the atonement, or he never can atone for his sin.”7
In 1888 beheading was dropped as an alternative. No one had ever selected it, even after an appeal for the use of the guillotine appeared in the Daily Ogden Junction on 17 May 1879 following a particularly ‘messy’ execution—ironically, that of Wallace Wilkerson:
The execution of Wallace Wilkerson at Provo yesterday affords another illustration of the brutal exhibitions of inquisitorial torture that have of late disgraced…the country and which have in some States so shocked the natural sensibilities of the people that extreme punishment has been abrogated from pure disgust excited by the sickening spectacles of rotten ropes, ignorantly or carelessly adjusted nooses or inexperienced marksmen. These disgusting scenes are invariably ascribed to accidental causes, but they have become so horrifyingly frequent that some other method of judicial murder should be adopted. The French guillotine never fails. The swift falling knife flashes in the light, a dull thud [p.14]is heard and all is over. It is eminently more merciful to the victim than our bungling atrocities, and the ends of justice are as fully secured.
Tolerance for capital punishment has remained steady in Utah, with many Mormons basing their support on the religious beliefs of their nineteenth-century leaders. In a letter dated 20 September 1978 and addressed to Mormon church president Spencer W. Kimball, Thomas B. McAffee, then editor of the Utah Law Review, asked several questions about the church’ s view death penalty and blood atonement. Responding on official letterhead at request of the First Presidency, Apostle Bruce R. McConkie wrote: “We do not believe that it is necessary for men in this day to shed their own blood to receive a remission of sins. This is said with a full awareness of what I and others have written and said on this subject in times past.” He went on to say that the law of blood atonement “has not been given to the church at anytime in this dispensation. It has no application whatever to anyone now living whether a member or a nonmember of the Church…. There simply is no such thing among us as a doctrine of blood atonement that grants a remission of sins or confers any other benefit upon a person because his own blood is shed for sins.”
In response to McAffee’s question whether statements of past Mormon leaders on blood atonement represented the official position of the church, McConkie wrote, “The answer, as indicated in the comments above set forth, is that they do not. The statements pertain to a theoretical principle that has been neither revealed to nor practiced by us.” McConkie concluded his letter by addressing McAffee’s final question if the church’s belief in blood atonement made any difference in how the death penalty is carried out: “As far as I can see there is no difference between a firing squad, an electric chair, a gas chamber, or hanging. Death is death and I would interpret the shedding of man’s blood in legal [p.15]executions as a figurative expression which means the taking of life. There seems to me to be no present significance as to whether an execution is by a firing squad or in some other way. I, of course, deleted my article on ‘hanging’ from the Second Edition of Mormon Doctrine because of the reasons here mentioned.”
McConkie affirmed the position of the Mormon church in favor of capital punishment: “We believe in capital punishment. In a revelation to Joseph Smith, on February 9, 1851, the Lord said: ‘And now, behold, I speak unto the church. Thou shalt not kill; and he that kills shall not have forgiveness in this world, nor in the world to come. And again, I say, thou shalt not kill; but he that killeth shall die’ (D&C 42:18-19).”8
When Utah’s largely Mormon legislature changed the state’s capital punishment statute in 1980, it replaced death by hanging with death by lethal injection but retained death by firing squad. Old perceptions do not change quickly. In 1984 Arthur Gary Bishop, eagle scout and former Mormon missionary, was sentenced to die for killing five young boys. Given the option of dying by lethal injection or firing squad, Bishop appealed for guidance to the First Presidency. Through Clyde Archer, his lay bishop, he received a response from Gordon B. Hinckley, counselor to President Spencer W. Kimball. At the insistence of Hinckley the letter was not shown to Bishop (or to anyone else) but was read to him by Archer, accompanied by Heber Guertz. Archer retained the original letter. On 11 June 1987 while awaiting execution, Bishop told me that Hinckley indicated the method of execution did not matter. Bishop implied that according to Hinckley, blood atonement ended with the crucifixion of Jesus Christ and the manner of execution today has no effect.9
A more recent statement about the Latter-day Saint church and capital punishment appeared in the Intermountain Catholic on 17 July 1987. The occasion was the execution [p.16]of Pierre Dale Selby, Utah’s first by lethal injection, and the speaker was Jerry Cahill of the church’s public communication office: “I guess what we are saying is that if the state and federal laws provide for capital punishment, we are bound by those laws. The U.S. allows for capital punishment, so we would go along with the decision here. In Great Britain, there is no capital punishment, so we would be against it there.” If Cahill was speaking in his capacity as spokesperson for the LDS church, he implies, contrary to what McConkie said, the LDS church’s position on capital punishment depends on the laws of the land.
2. Martin R. Gardner, “Illicit Legislative Motivation as a Sufficient Condition for Unconstitutionaltry Under the Establishment Clause—A Case for Consideration: The Utah Firing Squad,” Washington University Law Quarterly (1979): 450-51.