ICYMI: Montana Lethal Injection Protocol: Still Unconstitutional FAQ

Frequently asked questionsAs a follow up to our last  post, Coalition members ACLU of Montana have released the following frequently asked questions about the protocol challenge:

Q:  Why was the protocol ruled unconstitutional in September 2012?

A:   District Court Judge Jeffrey Sherlock ruled the state’s lethal injection protocol unconstitutional for three reasons – two that violate the U.S. and Montana Constitutions’ prohibitions of cruel and unusual punishment and one which violates the separation of powers requirement in the Montana Constitution.

  • The protocol had no requirement that the person administering the lethal injection drugs have any experience administering IVs, creating a situation in which the prisoner could be subjected to cruel and unusual punishment if the IV is botched.
  • The protocol called for the warden – a lay person with no medical training – to determine if the prisoner was unconscious from the first drug, a fast-acting barbiturate, before administering the second, paralytic drug. A lay person cannot be relied upon to make that determination, so it sets up another situation where the prisoner might suffer cruel and unusual punishment because he could remain conscious when the paralytic drug slowly suffocates him.
  • The protocol called for a three-drug process (a fast-acting barbiturate to induce unconsciousness, a paralytic to stop any muscle movement, and a drug to induce cardiac arrest), but the statute defining and permitting lethal injection mandates a two-drug process. The protocol must comply with the statute or it violates the separation of powers between the legislative and executive branches of government.

Q:  Why is the new protocol, released in January 2013, still unlawful?

A:   The new protocol violates the Montana and U.S. Constitution in several ways.

  • The protocol is the only two-drug protocol in the United States.  It is untested, not based on scientific research, and creates an unacceptable risk that the prisoner may be conscious when the second paralytic drug is administered.  The second drug paralyzes the prisoner, including his diaphragm, resulting in great fear and agony as he slowly suffocates if the first drug has not rendered him unconscious. While many states are moving toward a one-drug method in which one strong anesthetic both renders the prisoner unconscious and kills him, Montana is moving in a direction of heightened risk of gratuitous and unnecessary suffering.
  • The protocol also creates unacceptable risk of cruel and unusual punishment because it does not accurately specify the drugs to be used. It calls for using sodium pentothal as an ultra-fast-acting barbiturate. That drug is no longer produced in the U.S., is unavailable for purchase and is illegal to import. The protocol offers Pentobarbital as a substitute and allows for any other drug to be substituted. This creates unreasonable uncertainty about the drug to be used and the risks of that drug.
  • Pentobarbital is an intermediate-acting barbiturate. The Montana statute governing executions specifies using an ultra-fast-acting barbiturate. The new policy still violates the separation of powers.
  • The policy was created in violation of the state’s rule-making procedures outlined in the Montana Administrative Procedures Act. The act mandates public notice and a public hearing.

Q:  How is Montana’s right to be free from cruel and unusual punishment greater than that in the Eighth Amendment of the U. S. Constitution?

A:   Any execution protocol in Montana must comply with a stricter application of what is cruel and unusual punishment than simply the right to be free from that punishment as outlined in the Eighth Amendment of the Constitution. Courts in the state have ruled that the Montana Constitution’s right to be free from cruel and unusual punishment, coupled with the right to human dignity create a higher standard than that in the U.S. Constitution.  It’s ironic that our state constitution has the strongest right to human dignity in the country but Montana now proposes utilizing the method of lethal injection most likely to result in unnecessary and gratuitous suffering.

Q:  Do any other states use a protocol like Montana’s revised protocol?

A:   No. All other states use a three-drug protocol or a single anesthetic drug.  Most states are moving to a one-drug protocol with a single anesthetic that both renders the prisoner unconscious and kills him, alleviating the risk of unnecessary and gratuitous suffering that is always present when multiple drugs are used.

Q:  Who wrote the new protocol?

A:   The new protocol was written only by staff within the Department of Corrections, with some consultation with attorneys in the Montana Attorney General’s Office. No medical or scientific experts were consulted.

Q:  Why didn’t the Montana Legislature change the statute?

A:   We don’t know.  The DOC could have advocated that Montana’s legislature follow other states’ examples and adopt a one-drug protocol.  It chose not to do that, and instead revised the protocol to use drugs that are unavailable in the U.S., in a way that doesn’t comply with the existing statute, and that creates an unnecessary risk of gratuitous suffering.  There will not be another opportunity for them to amend the statute until 2015.

Q:  Who brought this case?

A:   The case, Smith v. Ferriter, was brought in 2008 by Ron Waterman of Gough, Shanahan, Johnson and Waterman, in cooperation with the ACLU of Montana on behalf of death row inmate Ronald Allen Smith and now includes the state’s only other death row prisoner, William Gollehon.