We are still Tinkering… by Scott Crichton


Scott Crichton Executive Director, Montana ACLU


Linda Greenhouse’s recent piece on the death penalty is a must read for anyone trying to understand what is going on with the notion of state sanctioned homicide and lethal injection.

In Montana the ACLU has been engaged in a lethal injection challenge on behalf of Ronald Allen Smith since April 2, 2008. In 2012, William Gollehon was also added as a plaintiff. These two men are the only Montanans (Smith is actually Canadian) under the custody of the Montana Department of Corrections who are currently sentenced to die.

In this Smith case, we sought and were granted summary judgment under the state’s right to know provision for the release of information related to the selection of Montana executioners, their qualifications and training. A new protocol was promulgated in August 2011, and in May 2012, our legal team submitted a 34 page brief asking that the Montana Execution Technical Manual [ETM] be found unconstitutional as a violation of the cruel and unusual punishment prohibitions in the U.S. and Montana Constitution. The Court granted plaintiffs’ motion, concluding that the lethal injection protocol violated the Montana Constitution in several ways. The state issued a revised protocol in in January, 2013. Plaintiffs challenged the constitutionality of the revised protocol, which set forth an un-tested two-drug method of injection. Our briefing also included a claim about secrecy and government transparency under the Montana Administrative Procedures Act.

On May 7, 2014, District Court Judge Jeffrey M. Sherlock issued his decision in which he wrote “the Court finds that except for the issue of whether pentobarbital is an ultra-fast-acting barbiturate, the State of Montana is entitled to summary judgment on each and every of the claims set forth in the plaintiffs’ second amended complaint. Further, except for the reserved issue of the ultra-fast-acting barbiturate, Plaintiffs’ motion for summary judgment is denied.”

Judge Sherlock’s decision came 8 days after the horrific botched execution of Clayton Lockett at the hands of prison authorities in Oklahoma- the second bungled killing there this year. When you look at this decision and the Greenhouse article, you see considerable attention being devoted to a 2008 US Supreme Court decision in a Kentucky case Baze v. Rees. The bottom line is that the Courts are upholding the laws that say killing people is constitutional and that while there may be some risks involved the state should be able to proceed with its execution.

So much has changed since Baze. Considerable testimony was presented in Smith by expert anesthesiologists Heath & Dershwitz and focused on how whether or not pentobarbital is an ultra fast acting barbiturate.The fact remains that sodium thiopental, the powerful sedative used to be part of the standard lethal-injection drug combination in Baze, is unavailable. The only American manufacturer stopped production in 2010, and European governments barred pharmaceutical companies on the other side of the Atlantic from exporting sodium thiopental to the US. For similar reasons, pentobarbital is also no longer available, and thus the dilemma as framed by Judge Sherlock remains in Smith.

Currently 32 states still retain the death penalty. States recently passing laws abolishing the death penalty include – just in recent years New York and New Jersey (2007), New Mexico (2009), Illinois (2011), Connecticut (2012) and Maryland (2013). At some point, the right case will make it to the Supreme Court, and at some point abolitionists hope that the Court will see that the “evolving standards of decency” require the Court to rule the death penalty is unconstitutional.

What will come from Judge Sherlock’s recent orderremains to be seen. Serious questions about what drugs the Department of Corrections would use and how they would be obtained remain unanswered. The recent botched executions in other states using untested and compounded drugs show the importance of transparency and accountability by the state in answering these questions.

All of this ought to help inspire activists who are seeking to bring about policy change because this much is clear- whether we use lethal injection or lethal gas, electrocution or firing squads, the remaining truth is unavoidable. The death penalty is an anachronism for the rest of the modern world. It is a so fraught with difficulties that even some proponents have come to recognize it is arbitrary, discriminatory, and subject to human err making it broken beyond repair.

The words of former prosecutor John Connor still echo in my mind- “Aren’t we better than this?’ We must continue to push for the legislative repeal of the death penalty in Montana. The arguments reach more people for more reasons day by day. Stay involved, stay informed, and stay resolved to bring about this change in 2015.