HELENA — Montana’s attorney general asked lawmakers Wednesday to support a bill that would give the state more latitude in selecting drugs to be used to carry out lethal injections after a judge blocked the state’s proposed protocol and as companies restrict access to drugs used to carry out capital punishment.
The bill, carried by Rep. Dennis Lenz, R-Billings, follows a 2015 court order in which District Judge Jeffrey Sherlock said Montana’s plan to use pentobarbital to render an inmate unconscious did not meet state law requiring the use of an ultra-fast-acting barbiturate because there was a drug that acted more quickly.
“Whether those are currently available is not an issue the court can resolve for the state,” Sherlock said in reference to the faster-acting drug, sodium pentothal.
“The companies that make ultra fast-acting barbiturates figured out that states were using it to inflict the death penalty and as a matter of corporate protest, I guess you would say, they stopped making it and they stopped importing those drugs,” Attorney General Austin Knudsen said.
Sherlock’s ruling said if the Legislature intended to give the state latitude to choose different drugs, it could have used much more general language in the law. The current law requires the use of an ultra-fast-acting barbiturate in combination with a chemical paralytic agent.
Lenz’s bill would change the law to say the death penalty could be carried out through “an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death.”
The language matches laws in Texas and Florida that have sustained legal challenge, said Knudsen, who requested the bill.
Supporters of the bill included county attorneys and the Montana Police Protective Association.
“If we’re going to have the law on the books, ladies and gentlemen, the state needs to be able to carry it out,” said Gallatin County Attorney Marty Lambert.
Opponents argued the proposed change would grant too many options in choosing substances that can cause death.
At least some companies restrict the use of pentobarbital, the drug the federal government used to carry 13 executions from July 2020 through January.
“I simply offer that such a scramble for new modes of killing will not make our state more just, it will not make us safer and in fact will result in a legal battle that costs our state and our taxpayers more money than we ought to impose on them,” said Sam Forstag with the ACLU of Montana.
The committee did not vote on the bill.
House Judiciary Chair Barry Usher, R-Billings, reminded people before the hearing that the bill was not about the death penalty, but about changing the law with regard to how it would be carried out. He disallowed testimony that sought to argue against the death penalty itself.
Another committee member, Rep. Ed Stafman, D-Bozeman, has a bill that would abolish the death penalty that Usher said would be before the committee soon. Similar bills have been presented to the Montana Legislature in each session dating back to at least 1999. The 2015 bill passed the Senate but failed on a tie vote in the House.
Montana has two men facing the death penalty, William Jay Gollehon and Ronald Allen Smith. The state last carried out an execution in 2006.