Cruel and Unusual?

By Beacon Staff

Butch Hurlbert and his daughter, Jennifer, want the man who destroyed their lives to die.

They don’t care how or by what means — Butch wishes he’d done it himself when he had the chance — but they believe the only channel to quell their anger, the only way to soothe their suffering, is for Tyler Michael Miller to breathe his last breath, the ultimate penance for the cruelty he dealt the family.

They almost got their wish. But in Montana, which hasn’t executed an inmate since 2006 when David Thomas Dawson was killed by lethal injection — the fourth inmate to die at the hands of the state in its history — the death penalty is never a sure thing, and executions have been suspended statewide pending the outcome of a legal challenge, while the country has experienced a gradual trend away from capital punishment.

Soon after Miller’s arrest in 2010, prosecutors elected to charge him with a capital crime for the Christmas Day double homicide of Jaimi Hurlbert, 35, and Alyssa Burkett, Jaimi’s 15-year-old daughter, in part because Montana law says the state must make a death penalty decision within 60 days of filing charges. It was the first capital case in Flathead County since the 1983 deliberate homicide conviction of Ronald Allen Smith, who remains on death row 32 years after murdering two Blackfeet men in East Glacier, his fate now squarely at the center of a lawsuit challenging the constitutionality of Montana’s lethal injection protocol.

Miller ultimately pleaded guilty to the crime, and Flathead County prosecutors, facing an expensive, time consuming and uncertain path in their pursuit of the death penalty, struck a deal that ensured a sentence of life imprisonment without the possibility of parole, thus avoiding a lengthy trial, subsequent hearings required of any death penalty case and a flurry of appeals.

The Hurlbert family understands the bureaucratic nuances of a capital case, the yards of red tape and the rationale behind the prosecution’s decision. But more than three years after the shooting, they anguish daily over the reality of their loss, and knowing that Miller still lives, even behind bars, they view the injustice in monochrome, the passage of time having done little to drive away their pain and anger.

“I want an eye for an eye,” Butch said. “There’s not a shadow of a doubt that he killed my daughter and granddaughter. I raised them both. Constitutional rights? Where were their rights?”

On Christmas Day 2010, Butch and Jennifer sat waiting in a truck outside Jaimi’s apartment, expecting the girls to arrive home any minute to set up the teenager’s gift — a new bed. The family had just come from opening presents at Butch’s Kalispell home, where ribbon and wrapping paper still littered the living room floor.

Before heading to the apartment, Jaimi and Burkett had gone to the home of Miller’s mother to pick up 17-month-old Hailey, the daughter she and Miller had together during their brief and turbulent relationship, which was characterized by physical and psychological abuse, as well as drug use.

Butch Hurlbert, whose daughter and granddaughter were gunned down on Christmas day 2010, pushed for the death penalty in Tyler Miller’s case. – Greg Lindstrom | Flathead Beacon

Miller was not allowed at his family home due to his constant methamphetamine use, but that day he convinced his mother, Cindy Regnier, to let him come over, promising there would be no confrontations between Hurlbert and himself, that he wanted to be with his family on Christmas.

Before Jaimi set out for the Regnier residence, she called to make sure Miller wasn’t home. He’d been harassing her for months, and over the course of the previous two days Miller had sent emails and text messages threatening her life. He’d also left Butch a voice message portending a violent crime, saying he intended to “go out like a soldier.”

The previous night, on Christmas Eve, he’d gone to the Scoreboard Pub and Casino in Kalispell, where Jaimi worked, threatening her in person, attempting to steal her phone and forcing the bar to go on lockdown while police responded. Butch insisted that Jaimi not go to Regnier’s house if Miller was home, believing he was dangerous.

She agreed.

But the longer Butch and Jennifer waited, the more unanswered phone calls they placed to Jaimi and Alyssa, the more ominous the situation became.

The events that followed would forever change their lives.

When Hurlbert arrived at the house, Miller and a relative were outside on the porch, and when he refused to go inside the relative shoved him in through the door.

Unbeknownst to the family, Miller had smuggled a .45-caliber handgun into the home in a backpack, then gone to the bathroom and transferred the gun to the waistband of his pants.

Jaimi Hulbert, 35, and her 15-year-old daughter Alyssa Burkett were shot and killed on Dec. 25, 2010. – courtesy photo

As his relative went back inside the home to get Hailey, Miller walked outside through the garage and drew the gun.

People inside heard Jaimi cry “Oh my God” just before the thunderclap of gunfire. He shot Jaimi in the face and shoulder before turning the gun on Burkett, shooting her once in the center of the chest. He then beat Jaimi with the butt of the gun, splitting her lip in two, and when a mortally wounded Burkett called out for her mom, Miller kicked her in the face.

“We couldn’t even have an open casket service,” Butch said. “They were unrecognizable.”

At first blush, the atrocity of Miller’s crime distinguishes him as a well-suited candidate for capital punishment — at the sentencing hearing he was remorseless, and in interviews with detectives he expressed pride over having committed the murders.

“I probably pulled off the most evil, manipulative pathetic thing today, but I feel good about it,” Miller told investigators after his arrest. “(Expletive), I wish I felt bad, I wish to God I (expletive) felt bad, but I am (expletive) happier than hell. I prayed to God that I could pull off something like this.”

There are nine aggravating factors that can figure into a case in order for prosecutors to pursue the death penalty in Montana, and Miller’s case arguably contained two — that he killed the victims while lying in wait and that the murders were the product of a pre-meditated scheme.

In the months that followed the charging decision, Flathead County Attorney Ed Corrigan devoted his full attention to the case, just as the defense team, composed of a special “death certified” attorney, Ed Sheehy, and another public defender, began mounting an extensive defense to avoid the death penalty.

Capital cases involve more investigation, more lawyers, more pre-trial motions, more expert witnesses, a longer jury selection process, and separate trials to determine a defendant’s guilt and whether the offense warrants a death sentence.

Add to that countless other expenses that accrue even before a single appeal is filed and the costs quickly stack up.

“A death penalty case is a very expensive and time-consuming process, and it’s very uncertain,” Corrigan said.

From the outset, a death penalty case is front-end loaded with costs between $400,000 and $1 million, and because of the automatic appellate process there is an additional cost per year per inmate, with estimates ranging between $100,000 and $150,000 annually.

Cumulatively, Montana’s only two inmates sentenced to die have been on death row for 54 years. The costs are exorbitant, according to their attorneys.

Ronald Allen Smith, convicted of a double homicide in 1983 for the shooting deaths of two Blackfeet men near East Glacier, an apparent thrill kill, has appealed his sentence at every turn, and he most recently challenged the constitutionality of Montana’s lethal injection protocol, effectively suspending all executions in the state pending the case’s outcome.

“We are talking about 31 years, and he has been consistently active in the courts the entire time,” Ron Waterman, an attorney with the American Civil Liberties Union representing Smith, said. “National averages show that every year an individual involved in a capital case is part of an ongoing appellate process the costs are between $100,000 and $150,000. I would expect that Ron Smith’s case falls within those figures.”

Statutes also require multiple top-end, death-penalty-qualified lawyers, experts, and investigators, and trials stretch weeks, if not months, with limited funds available to defray the costs.

“In terms of monetary costs a death penalty case is more expensive than keeping an inmate in prison for life,” Corrigan said. “There’s really no doubt about that.”

In recent years, four states — Montana, Kansas, Colorado and Connecticut — have wrestled with major shifts toward rejection of the death penalty, with legislators citing both moral and economic reasons, but each bill to abolish it has been defeated, in some cases by narrow margins.

In the past six years, six other states have repealed the death penalty, reducing the number of states that allow capital punishment to 32.

Statistics compiled by the Death Penalty Information Center in a 2013 end-of-year report show that the death penalty is an increasingly rarefied brand of punishment in the criminal justice system, and many believe that it is on life support.

Last year, executions nationwide fell below 40 for just the second time since 1994, signaling for some the death knell of capital punishment, which is increasingly viewed as an outmoded and ineffective form of retribution — neither a deterrent for violent criminals nor a cost-saving alternative to incarceration. Death sentences have declined by 75 percent since 1996, when there were 315 executions in the country, according to the Death Penalty Information Center, a nonpartisan group that tracks capital punishment cases.

Also, public support for the death penalty as measured in the annual Gallup poll has declined to 60 percent, its lowest level in 40 years.

“Twenty years ago, use of the death penalty was increasing. Now it is declining by almost every measure,” Richard Dieter, the center’s executive director, said. “The recurrent problems of the death penalty have made its application rare, isolated, and often delayed for decades. More states will likely reconsider the wisdom of retaining this expensive and ineffectual practice.”

With a moratorium on executions pending the legal challenge to the state’s lethal injection protocol, Montana is poised to be next in line.

The U.S. Supreme Court struck down the death penalty in 1972 after ruling that it was “cruel and unusual,” in violation of the Eighth Amendment, but it was reinstated in 1976.

In Montana, three of the state’s four executions have occurred since the death penalty was reinstated; the only other execution, a hanging in Missoula, occurred in 1943. More than 50 years passed before the state’s next execution, that of Duncan McKenzie, who was on death row for 20 years, receiving eight stays of execution before the state finally put him to death.

“It’s not a crime that is frequently charged,” Waterman, the ACLU attorney who also represented McKenzie, said. “Before Duncan McKenzie was executed more than 50 years had passed between executions in Montana. I think the death penalty is an historical anachronism. It is something that at one time all countries had in place, and then slowly but surely countries have turned away from it. They have found better and more effective ways, less costly ways, of dealing with individuals who have committed capital crimes.”

Facing the possibility of its first death penalty trial since 1983 with the Miller case, the Montana Office of Public Defenders (OPD) braced for the enormous financial millstone that accompanies any capital case.

In the OPD’s first major budget request of the kind since its inception in 2006, the office asked for and received approximately $1 million from the 2011 Montana Legislature specifically to defend death penalty cases.

The budgetary line item was prompted by Miller’s case, and represented about one-quarter of the $4 million that was added to the agency’s budget; some, if not all, of the allocation was obviously earmarked to pay for the extensive defense work with Miller, who at the time was the only defendant facing a new capital crime in the state.

Tyler Miller appears in Flathead County District Court in January 2011. – Beacon file photo

“Essentially that was a million bucks to spend on a single case, which is more than my entire budget for operating this office, by a significant amount,” Corrigan said.

A death penalty case requires at least two jury trials, and often three — one to determine whether a defendant is guilty of the crime, another to determine whether aggravating circumstances exist to justify capital punishment, and still another (called a penalty hearing) at which prosecutors present additional evidence to support the defendant’s execution.

At the penalty hearing, the defense team must call on a mitigation specialist whose job it is to gather facts in support of any mitigating circumstances that might be relevant to the case — circumstances usually precluded from being admitted at a criminal trial. If a judge agrees that mitigating circumstances exist, thereby countering the aggravating factors, the defendant may avoid the death penalty by receiving a sentence of life without parole.

Groups that advocate abolishing the death penalty say the amount of time invested in capital cases could be better spent investigating and prosecuting other cases.

During the 2011 Montana Legislature, the Montana Abolition Coalition actively supported Senate Bill 185, which would have abolished the death penalty and replaced it with a sentence of life without parole. In 2013, a coalition of Democrats and Republicans again raised the issue, contending that the high cost of litigating death penalty cases taxes the state’s budget for decades and warrants repeal. However, the bill failed in committee.

Jennifer Kirby, who coordinates the coalition, said while Montana has not conducted a comprehensive study examining what costs the state incurs in death penalty cases, studies in other states suggest it is substantial.

The 2013 Legislature allocated an additional $1 million for the biennium to the OPD for capital cases alone, and Richard “Fritz” Gillespie, chair of the state’s Public Defender Commission, acknowledged that it likely will not be enough as the state is currently seeking the death penalty against 24-year-old Michael Keith Spell, who faces deliberate homicide charges in the January 2012 kidnapping and murder of Sherry Arnold, a popular teacher in the small Bakken oil patch town of Sidney.

“We told them at the time that it wasn’t going to be enough money to cover it,” Gillespie said. “At the end of the day everybody recognized that the capital case funding is going to be treated somewhat like fire suppression — we don’t know what it is going to cost, so if we run out of it and have to use funds from another source they will put it in a subsidy.”

Kirby views the state funding of defense teams in capital cases as a tremendous waste of resources.

“The Montana Legislature should be eliminating waste in our system, and here it is allocating millions of dollars to defend death penalty cases while it makes significant cuts in other areas that negatively affect thousands of Montanans,” she said.

More than a dozen states have found that the death penalty is up to 10 times more expensive than sentences of life or life without parole, according to Kirby.

A 2002 study by Dartmouth College and the National Bureau of Economic Research, titled “The Budgetary Repercussions of Capital Convictions,” found that the costs of the death penalty are borne primarily by increasing taxes, with county budgets bearing the brunt of the burden.

“Every legislative session in recent years has brought forward bills to eliminate the death penalty, and every time it seems to gain more ground,” Corrigan said. “So even in a state like Montana, which historically supports capital punishment, there is a push to get rid of the death penalty.”

Sheehy, who represented Miller, is on a short list of lawyers in Montana who possess the training, background and qualifications required to represent a defendant charged with a capital offense. Sheehy has represented defendants in 10 capital punishment cases during his decades-long career.

“With the number I’ve done it’s enough for a lifetime,” Sheehy said. “It’s exhausting and it wreaks an emotional toll on the lawyers and the families.”

Of those cases, only one inmate was executed — David Dawson, the triple murderer who asked to die, which rendered as moot any attempts by anti-death penalty groups to interfere.

The Dawson execution took place against a backdrop of debates in courts around the country about the constitutionality of lethal injection. Some states have put executions on hold until courts can decide whether lethal injection, designed as a humane alternative to methods like hanging and electrocution, poses too great a risk of a cruel death.

In Montana, Ronald Smith and another inmate are currently the only two individuals awaiting execution, and both have challenged the constitutionality of the state’s lethal injection protocol. Smith, who declined to be interviewed for this article, also has a pending request for clemency before Gov. Steve Bullock.

A Canadian citizen, Smith was convicted in 1983 for shooting Harvey Madman Jr. and Thomas Running Rabbit while high on drugs and alcohol near East Glacier.

He had been taking 30 to 40 hits of LSD and consuming between 12 and 18 beers a day at the time of the murders. He refused a plea deal that would have seen him avoid death row and spend the rest of his life in prison. Three weeks later, he pleaded guilty. He asked for and was given a death sentence.

Smith later had a change of heart and has had a number of execution dates set and overturned.

Smith and the second inmate on death row, William Jay Gollehon, who received a death sentence for his role in the murder of five other inmates during a 1991 prison riot, also filed a lawsuit claiming that the state’s method of execution is unconstitutional.

Both men have exhausted all other appeals, and the state Department of Corrections recently modified its method of lethal injection in response to the legal challenge by Smith and Gollehon.

In 2008, Waterman, the ACLU attorney, filed a lawsuit on behalf of Smith and Gollehon, arguing the protocol for lethal injections used in state executions constitutes cruel and unusual punishment and violates the constitutional right to human dignity under the Eighth Amendment.

Montana District Court Judge Jeffrey Sherlock agreed in September 2012. He pointed to a lack of training for prison officials who administer the drugs, a discrepancy over whether two or three drugs should be used, and ruled that the type of drugs available do not comply with Montana statute. He also questioned the method used to determine if an inmate is actually unconscious before receiving an injection.

The state’s new two-drug lethal injection protocol, written solely by DOC staff, is not in accordance with the public participation procedures outlined in the Montana Administrative Procedures Act (MAPA), Waterman said.

The revised DOC protocol, prompted by Sherlock’s ruling, uses sodium thiopental and pancuronium bromide as the drugs that end an inmate’s life. Sodium thiopental complies with the state statute mandating that an ultra-fast-acting barbiturate be used. However, the drug is no longer available in the United States, and its importation is illegal because it is not approved by the Food and Drug Administration.

The state’s revised protocol indicates it will use pentobarbital as a substitute barbiturate, despite the fact that pentobarbital is an intermediate-acting barbiturate, which isn’t allowed under the MAPA lethal injection protocol.

“I don’t believe that there is another drug readily available on the market that satisfies the term ‘ultra-fast acting’,” Waterman said. “The bind that I think the Department of Corrections is in is that the language adopted in the statute is too narrow. It was designed to essentially facilitate the use of sodium thiopental, and now that sodium thiopental is no longer available they are out of options.”
The new two-drug protocol makes Montana one of the only states in the country to implement an untested method of execution, which Waterman says creates an unacceptable risk that the prisoner may be conscious while his body is paralyzed by the second drug, resulting in suffocation. The other state to use a two-drug protocol is Ohio.

In January, an inmate at the Southern Ohio Correctional Facility took more than 20 minutes to die by lethal injection, with headline-grabbing accounts of him struggling and gasping in the final minutes, renewing the debate over lethal injection methods.

Not everyone agrees that the death penalty is on the brink of extinction, and some states believe reform is the answer.

California voters in 2012 defeated a ballot measure that would have abolished the death penalty and replaced it with life in prison without parole. California has not executed any of its more than 740 condemned inmates since 2006.

Just this past month, three former California governors, George Deukmejian, Pete Wilson and Gray Davis, threw their political weight behind still another opportunity for California voters to decide the fate of the death penalty.

The proposed referendum would streamline the state court appeals process, overhaul the way death row inmates’ lawyers are appointed, change the method by which lethal injection procedures are approved and attach some limitation on federal appeals.

There are 32 states with the death penalty on the books, and states like Texas, Ohio and Oklahoma have not backed away from carrying it out.

But there is also plenty of opposition to the death penalty, from Republicans and Democrats alike.

Last month, Washington Gov. Jay Inslee announced that no executions would take place in the state while he remained in office, despite the fact that the death penalty is legal there. The Democratic governor cited problems and flaws with the capital punishment system.

Montana State Sen. Matthew Rosendale, R-Glendive, is part of a bipartisan group of state legislators that introduced a bill to replace the state’s death penalty with a sentence of life without parole. The coalition of conservative lawmakers, including Rosendale, partnered with religious and human rights groups in supporting the repeal of capital punishment. The group is called Conservatives Concerned About the Death Penalty.

Rosendale, who is running for Montana’s open U.S. House of Representatives seat, said his stance on the death penalty has not and will not cost him conservative votes.

“People know where I stand on the death penalty and I still got elected by a wide margin,” he said of his senate bid. “If you stand up and say, ‘I’m against the death penalty,’ you will not lose conservative votes.”

But rationalizing the death penalty’s gradual exile from America’s criminal justice system offers little comfort to the Hurlbert family. Butch and Jennifer remain bitter about the legal maneuvering that led to Miller’s prison sentence, and their lack of input in seeing that Miller receive the death penalty they expected.

Corrigan is not insensitive to the family’s grievance, and said he arrived at the decision with a great degree of difficulty.

“It was not an easy decision. I have had to make some very difficult decisions over the course of my career and the victims’ families are not always happy. That’s hard to swallow. But you have to do what the law requires and what you think is right,” he said.

Both Butch and Jennifer Hurlbert support capital punishment in cases like Miller’s, in which there is no doubt of his guilt, zero chance that he was wrongfully convicted. Still, both of them pragmatists, they won’t be surprised if the death penalty is repealed in the near future.

“After such a traumatic loss the only hope you have is for justice,” Jennifer Hurlbert said. “The prosecution told us that this crime met every criteria for capital punishment, a sentence we wanted and pushed for, a sentence the state would seek. We quickly learned that would not be the case, that the death penalty is merely a bargaining chip used by the prosecution to make deals with defense attorneys.”

Butch, who attended every court hearing and endured taunting stares and smirks from Miller, as well as crude letters while the murderer was in the Flathead County jail, missives that only ended after he obtained a restraining order, does not mince words when explaining why he believes his daughter’s and granddaughter’s killer should die.

“He’s a cruel, black-hearted man who doesn’t deserve to live,” Butch said. “Do I have hard feelings? Yeah, I’ve got lots of hard feelings.”

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