Montana Judge Blocks State from Using Execution Drug

Injunction on execution says Montana's lethal injection methods do not meet standards set by state lawmakers

By Tristan Scott

A Helena district judge on Tuesday ruled that Montana’s method of lethal injection does not comply with state law, effectively staying all executions in the state indefinitely.

District Court Judge Jeffrey Sherlock wrote that the state’s current protocol for executing inmates by lethal injection relies on a drug that is not an “ultra-fast-acting barbiturate,” as required by state law.

The challenge to Montana’s execution methods went to trial last month, when attorneys for prisoners Ronald Allen Smith and William Gollehon – Montana’s only two death row inmates – argued that the drug, pentobarbital, does not adhere to a state law requiring that an “ultra-fast acting” barbiturate must be used during execution.

Montana’s lethal injection law calls for use of an ultra-fast acting barbiturate as well as a paralytic agent. The state’s execution protocol lists sodium pentothal as the barbiturate, with pentobarbital as a substitute; however, sodium pentothal is no longer available for use in executions 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 state’s lethal injection protocol. In his order, Sherlock wrote that by using the term “ultra” in its statute, the Legislature limited the state to using only drugs in the fastest category of barbiturates.

In Montana, lethal injection has been the state’s sole method of execution since March 1997.

»»» Click here to read the judge’s order.

Sherlock ruled that “while pentobarbital may operate in a fast nature, it is not ultra-fast as is required to comply with Montana’s execution protocol.”

The ruling continues: “The state of Montana is not allowed to use the ‘fastest acting barbiturate available’ or a ‘relatively fast acting barbiturate,’ only an ‘ultra-fast acting barbiturate.’”

Sherlock wrote that the remedy is to ask the Legislature to modify the statute to allow the use of pentobarbital or other slower-acting drugs.

“The State of Montana has modified the execution protocol several times during this litigation and has had many opportunities to return to the legislature to modify the language which limits the State of Montana to ‘ultra-fast-acting barbiturates,’ but has chosen not to,” according to the order.

A spokeswoman at the Montana Department of Justice, Anastasia Burton, said attorneys were still studying the decision and did not have an immediate comment.

The Attorney General’s Office may appeal the decision to the Montana Supreme Court. The state has 60 days to decide on an appeal.

To lift the injunction on executions, the Montana Legislature would have to enact a new law or amend the statute, either at the next regular session in January 2017 or by calling a special session.

Smith was convicted of a double homicide in 1983 for the shooting deaths of two Blackfeet men near East Glacier in an apparent thrill kill. He has appealed his sentence at every turn, and most recently challenged the constitutionality of Montana’s lethal injection protocol.

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

Caitlin Borgmann, executive director of the Montana ACLU, said Sherlock’s decision was a “victory for justice.”

“While the ACLU will continue to fight for the abolition of the death penalty in Montana, we are gratified that, in the short term, our state will be staying out of the business of killing people,” according to a statement from Borgmann.

Attorney Ron Waterman, who filed the suit on behalf of Smith and Gollehon, said he believes the evidence presented to the court at trial is strong enough to withstand an appeal.

“I am very confident in the strength of the evidence presented to the court,” Waterman said in an interview.

Waterman filed the lawsuit, Smith v. Batista, on Smith’s behalf in 2008, challenging the lethal injection procedure in Montana as a violation of cruel and unusual punishment and Montana’s right of human dignity. The lawsuit now also includes Montana’s only other prisoner on death row, Gollehon.

In the introduction of his order, Sherlock emphasized that he is not ruling on the constitutionality of the death penalty in Montana.

“This case is only about whether the drug selected by the Department of Corrections to effectuate the plaintiffs’ lethal injections, pentobarbital, meets the legislatively required classification of being an `ultra-fast-acting barbiturate,’” he stated.

An inmate has not been executed in Montana since Aug. 11, 2006, when triple-murderer David T. Dawson was executed at the State Prison in Deer Lodge.

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