ACLU Sues to Challenge Lethal Injection in Montana

By Beacon Staff

HELENA – A lawsuit filed Thursday by the American Civil Liberties Union of Montana challenges the lethal injection procedure the state uses in executions.

“As it stands today, there are more safeguards to ensure that an inmate getting his wisdom teeth pulled receives proper anesthesia, so that he does not feel pain during the procedure, than an inmate who is going to be executed,” lawyer Julie Johnson told reporters after the suit was filed in District Court here.

The ACLU sued on behalf of death row inmate Ronald Smith, a Canadian sentenced to execution for the 1982 deaths of two men. The sentence is under appeal. No execution date is set for Smith or for Montana’s other death row inmate, William Gollehon.

The lawsuit contends that death by lethal injection is unconstitutionally cruel and unusual punishment. Defendants are the state; the Montana Department of Corrections; Corrections Director Mike Ferriter; and Montana State Prison Warden Mike Mahoney.

Asked for comment, spokesmen for the Corrections Department and for Attorney General Mike McGrath said only that they are awaiting a U.S. Supreme Court opinion on challenges to lethal injection, a method used in all but one of the three dozen states with the death penalty. The Supreme Court heard arguments in January.

A spokeswoman for Gov. Brian Schweitzer said he does not comment on pending litigation.

The ACLU says that even with the Supreme Court expected to rule on lethal injection, the Montana lawsuit is necessary because different standards must be considered at the state level than at the federal level. The Montana Constitution affords human dignity stronger protection than does the U.S. Constitution, the ACLU says, and government secrecy surrounding lethal injection in Montana violates right-to-know provisions in the state constitution.

Johnson, who is one of Smith’s lawyers and spoke at an ACLU news conference Thursday, said Montana’s procedures and protocols for administering lethal injections do not ensure that an inmate is anesthetized properly before he receives a drug that paralyzes all body movement and another that stops his heart.

“If an inmate is not sufficiently under, he may be fully aware of the sensation of being suffocated as his lungs are paralyzed,” Johnson said.

“We have too often heard of the debate whether waterboarding is torture. The lethal injection protocol is simply chemical waterboarding.”

Johnson said that “what makes this all the more horrific is that the inmate cannot express his agony as he has been paralyzed by a chemical straitjacket.”

Polson resident Ethel Harding, whose daughter Lana was murdered, said in a telephone interview Thursday that challenging lethal injection is essentially challenging the death penalty and such action tends to overlook the constitutional rights of murder victims. Duncan McKenzie Jr. was executed by injection in 1995, 20 years after he was first told he must die for killing rural school teacher Lana Harding.

People such as McKenzie do not have constitutional rights, Ethel Harding said, adding that the death penalty is warranted only in extreme cases. Her daughter’s killing was “planned and executed with no thought to anybody’s welfare or life, misery or suffering,” she said.