The ACLU of Montana filed a brief in July 2013 calling for the District Court to declare the Department of Corrections new two-drug lethal injection protocol unlawful because it creates an unreasonable risk of subjecting prisoners to cruel and unusual punishment, violates the separation of powers between the legislative and executive branches of government and was not written in accordance with the public participation procedures outlined in the Montana Administrative Procedures Act.

The new execution protocol, written solely by DOC staff without consultation with scientific or medical experts, was written in reponse to a September 2012 ruling by District Court Judge Jeffrey Sherlock that Montana’s lethal injection protocol is unconstitutional. That ruling was in response to a suit filed in March 2008 by the ACLU of Montana and co-operating attorneys, Ron Waterman and Julie Johnson from Gough, Shanahan, Johnson and Waterman in Helena, and Greg Jackson of Helena, on behalf of Ronald Allen Smith, challenging the lethal injection procedure in Montana.

In May 2014, Judge Jeffrey Sherlock ruled that the issue of whether pentobarbital meets the definition of ‘fast-acting barbiturate’ will go to trial. He ruled against the ACLU on the matter of whether the process used to write the new execution protocol complied with the Montana Administrative Procedures Act’s mandate for the opportunity for public participation.

The pentobarbital issue was scheduled to go to trial in September 2014, but the state’s medical expert withdrew from the case (and all other death penalty cases) in August 2014. The case entually went to trial on September 2, 2015.

During that trial, expert witnesses offered testimony on the efficacy of drugs not classified as “ultra-fast acting.” A board-certified anesthesiologist and a member of the faculty at Columbia University, Dr. Mark Heath affirmed that pentobarbital is not and has never been used professionally to induce anesthesia in a conscious patient, and that it takes longer for the drug to take full effect compared to thiopental. ”With thiopental, it’s lights out,” Dr. Heath said. “Whereas with pentobarbital, the prisoner continues to talk and increasingly slurs their words.”

In his decision  dated October 6, 2015, Judge Sherlock ruled that  “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.’”  The court determined that pentobarbital does not meet that definition and enjoined the state from using it in its lethal injection protocol. The Court noted that “[s]crupulous adherence to statutory mandates is especially important here given the gravity of the death penalty.”

Judge Sherlock’s ruling stays all executions indefinitely in Montana, which means that Montana remains in a de facto death penalty moratorium.

This case has been a long process of litigating to make sure Montana’s lethal injection procedure complies with the law. “The State has had multiple opportunities to correct the problems with the death penalty protocol. And each time they came up with a new flawed procedure,” said ACLU Legal Director, Jim Taylor. “Seven years of litigation has demonstrated that Montana’s death penalty is broken beyond repair.”

In April 2009, the ACLU of Montana and Ron Waterman, Julie Johnson and Greg Jackson followed up with motion for partial summary judgement calling for the selection criteria and qualifications of executioners be made public under the state’s right to know provision so that the public can be informed about whether executioners are qualified to perform the complicated three-step lethal injection procedure.

Attorney(s)

Jon Ellingson, Anna Conley

Pro Bono Law Firm(s)

Ron Waterman and Julie Johnson (Gough, Shanahan, Johnson and Waterman, Helena) Greg Jackson (Helena)

Date filed

July 12, 2013

Court

Montana First Judicial Office, Lewis & Clark County

Judge

Jeffrey Sherlock

Case number

BDV-2008-303

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