Judge rules Montana’s execution protocol unconstitutional

A judge declares Montana’s lethal injection method unconstitutional.

The ruling comes in the case of Ronald Allen Smith, the only Canadian on Death Row in the U.S.

District Judge Jeffrey Sherlock says Montana must change the way it executes prisoners following a lawsuit from the American Civil Liberties Union. The ACLU says the state’s lethal injection method amounts to cruel and unusual punishment under both the U.S. and Montana Constitutions. Judge Sherlock agrees some aspects do fail to pass constitutional muster. ACLU Staff Attorney Anna Conley says the ruling gives direction to the state executive and legislative branches.

“To get our protocol and our lethal injection methods on par with the rest of the nation,” Conley said.

“Judge Sherlock’s ruling upholds most of Montana’s lethal injection protocol,” said state attorney Mark Fowler, who argued before Judge Sherlock in favor of the procedure.

Fowler points out the ruling finds fault with three areas of the protocol, areas he says can be changed easily and quickly.

“And if done,” Fowler said. if those areas of concern are addressed, the modified protocol would not be found in violation of the Montana Constitution.”

The first ruling says the person putting in the IVs for whoever is being executed must have IV experience. The ruling now only requires EMT training. ACLU Attorney Conley agrees that could be a quick fix.

“So the protocol could be fairly, simply changed to require that experience,” Conley said.

Same with the second ruling, she says. The protocol now only requires the warden monitor the consciousness of the person being executed. The warden doesn’t need medical experience now, and the ruling says that experience must be present while the three injection procedure is carried out.

“This is an important role,” Conley said, “because the person is conscious after that first drug injection, then they will feel significant pain as heart attack and suffocation are induced for the subsequent the drugs.”

Sherlock’s third ruling strikes down that three drug protocol because it violates state law, which calls for a two drug protocol. But the ACLU’s Conley says that law was passed in 1987 and the procedure it calls for is outdated.

“So it’s unlikely that the DOC is going to comply with state law as it exists because it doesn’t really make scientific sense as it exists,” she said.

She says this will probably require legislative action. The legislature doesn’t convene again until January.

The case was originally brought by convicted double-murderer, Alberta-native Ronald Allen Smith. The state’s only other person on death row, William Gollehon, later joined the case.

For now, the ruling strikes down the state’s lethal injection process, putting on hold any possible executions.



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