HELENA — Attorneys representing the state of Montana and two death row inmates traded claims Wednesday about the speed and availability of a drug that is being proposed for use in executions.
Judge Jeffrey Sherlock will decide Thursday whether to rule on the state’s plan to use the sedative pentobarbital or send the case to trial on Sept. 2. He will also consider requiring the state to disclose where it would get the drug that is not approved by the FDA.
Attorneys for inmates Ronald Allen Smith and William Gollehon contend pentobarbital is not proven to be “ultra fast-acting,” as required by Montana law.
Assistant Attorney General Pan Collins countered by pointing to a website that aggregates summaries of medical research that says the effect of the drug is almost immediate.
Pharmacologists have said in depositions and declarations that “ultra fast-acting” is not a common medical term, so they could not speculate on its application to lethal chemicals.
Attorneys in the case agreed there is no state record explaining the phrase or whether lawmakers purposely chose it over the terminology used by many other states, “ultra short-acting.”
Pentobarbital is not available from domestic manufacturers or pharmacists, leading attorney Ronald Waterman, who represents the inmates with co-counsel, Jim Taylor, to question where Montana would obtain it.
“They won’t stand up today and say we can get it or we can’t,” Taylor said.
State attorneys claim any current or potential sources of the drug should be protected because the information does not impact death-row inmates or the public.
The hearing was held a day after U.S. District Judge Henry T. Wingate in Mississippi issued a temporary restraining order that put that state’s use of pentobarbital and midazolam on hold.
Wingate said in a written order that it seems likely Mississippi has failed to use an “ultra short-acting barbiturate or other similar drug,” as required by Mississippi law.
Waterman said the federal injunction was a good sign for people on death row in both states.
“It’s obvious he agreed there’s potential for questions of fact that need to go to trial,” Waterman said of the ruling. “We can tell from that that he was kind of in agreement with the urging of the plaintiffs.”
Midazolam, pentobarbital and other barbiturates or sedatives are used to render inmates unconscious as part of various state approaches to executing people.
Mississippi uses a three-drug process and Montana uses two. Other states use a single drug.
The U.S. Supreme Court upheld midazolam as an acceptable sedative for capital punishment in June. But some states have rebuffed the drug since it was used in high-profile executions that seemed to make people suffer in the final minutes of life.
Smith and Gollehon were sentenced to death after being convicted of murder in 1983 and 1992, respectively. Their executions have been stayed for the duration of the case.
David Dawson was the last person executed in Montana. He died by lethal injection in 2006.