A repeal of Utah's firing squad for executing death row inmates should be retroactive — even if that means opening a new avenue for appeals — Utah's Sentencing Commission decided Wednesday.

Passed on a vote of 11-6 with two abstentions, the recommendation will be forwarded to legislators, some of whom want to end the practice of execution by firing squad and make lethal injection Utah's sole method of execution.

Lethal injection is the most common form of execution used in the United States, where capital punishment is law in 37 states and in federal statues. Utah is one of seven states that gives the condemned a choice of method and the only state that continues to use the firing squad.

A retroactive repeal would effectively block the firing squad executions of four of the 11 men on Utah's death row. Roberto Arguelles, Dave Taberone Honi, Troy Kell and Ralph Menzies have all selected the firing squad method. All still have appeals pending in the courts, but Menzies is scheduled for execution Nov. 10.

If a repeal were passed, the condemned could have new grounds for appeal, arguing that their choice has been taken away. That could stretch out an already lengthy appeals process, some on the commission said.

"All it's going to do is provide one more little wrinkle for some creative defense team to file one more appeal," Utah Board of Pardons and Parole Chairman Mike Sibbett said. "I don't think it's worth it."

But anytime the law changes, there is a risk of court challenges and more lengthy appeals, said Ed McConkie, director of the Commission on Criminal and Juvenile Justice. He argued that any repeal should be retroactive; otherwise it leaves the firing squad in place until all pending cases are resolved.

"The Sentencing Commission has crossed a line where we have made a recommendation that we agree based on express rationale that the firing squad is inappropriate. If we now say that (repeal) is only prospective, we dilute that conclusion," said McConkie. "I realize that might delay the execution of some offender . . . anytime you change sentencing you risk that."

The commission's debate lasted nearly two hours before the issue came to a vote.

Ultimately, legislators will have the final say.

Rep. Sheryl Allen, R-Bountiful, plans to carry a firing squad repeal bill during the 2004 legislative session. She unsuccessfully carried a similar bill in 1996. Allen's bill isn't drafted yet, but she said Wednesday evening that she plans to heed the commission recommendation for a retroactive repeal.

Utah defense attorneys who handle capital cases had mixed reactions to the commission recommendation, but all agreed it would trigger additional appeals. The question will be whether the method of one's execution is a "right" or merely a procedural matter, said Mike Sikora, who represented death row inmate Elroy Tillman.

"I think it probably could be argued as procedural rather than a substantive right," said Sikora. "Nevertheless, it has to be litigated and whenever something has to be litigated, it takes time."

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E-mail: jdobner@desnews.com