Trial Over Execution Drug Begins in Helena

Trial to determine if lethal injection could cause cruel and unusual punishment

By Molly Priddy

HELENA — An anesthesiologist testifying on behalf of Montana’s two death row inmates said Wednesday that one of the drugs used to execute state prisoners by lethal injection does not meet the standard set by lawmakers.

Dr. Mark Heath of Columbia University Medical Center testified in a trial over Montana’s execution methods. The state’s two death row inmates are challenging those methods, saying that if the barbiturate pentobarbital does not take effect quickly enough, a condemned inmate could remain conscious while he suffocates to death.

Pentobarbital is one of two drugs that would be used in a Montana execution now that the barbiturate previously used, sodium pentothal, is no longer available in the U.S. The state’s last execution was carried out in 2006, and pentobarbital has been used in its lethal injection cocktail.

In a lethal injection, pentobarbital would be administered first to render the inmate unconscious, followed by pancuronium bromide. Together, the two drugs are meant to stop the inmate from breathing and cause death by asphyxia.

State law requires the use of an “ultra-fast-acting” barbiturate to make the inmate lose consciousness. Lawmakers did not define what they meant by “ultra-fast-acting” when they passed the law in the 1980s, but District Judge Jeffrey Sherlock interpreted it to mean the amount of time for the drug to take effect after entering the system.

Pentobarbital is used by doctors in clinical practice primarily to reduce the threat of seizures in epilepsy patients or to induce a barbiturate coma to shut down the electrical activity in the brain, Heath told Sherlock.

It is not used to induce anesthesia, and it takes longer for the drug to take full effect compared to sodium pentothal, which is also known as sodium thiopental, Heath told Sherlock.

“With thiopental, it’s lights out,” Heath said. “Whereas with pentobarbital, the prisoner continues to talk and increasingly slurs their words.”

Heath said the medical community classifies only three drugs as “ultra-fast-acting” because of their molecular structures. Thiopental is one of those three, but pentobarbital isn’t,” he said.

“Nobody ever called pentobarbital ultra-fast or ultra-short-acting because it isn’t,” Heath said. “It’s not in that category of drugs.”

Assistant Attorney General Pam Collins attempted to paint Heath as an anti-death penalty advocate and pointed out a medical reference that says pentobarbital takes effect in under a minute, which is the same amount of time it takes sodium pentothal to take effect.

Collins also challenged Heath’s assertion that pentobarbital is slower than thiopental, citing Heath’s testimony in previous lethal injection cases that there was no information documenting the difference in speed.

Heath responded that the difference is seen in the drugs’ different molecular structures, through tests on animals and in the dozens of executions using pentobarbital over the last few years.

He could not recall the inmates’ names or states where the executions were carried out in which the inmates continued to speak, breathe and move after pentobarbital was administered.

“The names aren’t important to me. It’s what happened to them,” Heath said.

The trial is expected to last through part of Thursday, and state attorneys plan to present their own witness to counter Heath’s testimony.

The state’s lethal injection protocols were changed in 2013 in response to the lawsuit by death row inmates Ronald Allen Smith and William Gollehon.

Sherlock previously ruled that the changes satisfied all of the issues raised by the defendants in their constitutional challenge of how the state carries out its executions except for the question of pentobarbital.