It's a procedure filled with confusion, lack of detail and in direct conflict with state law. Montana's lethal injection protocol, as recently revised by the Montana Department of Corrections is supposed to guide capital punishment, but it is too vague, too short on training details and wholly inadequate in ensuring that executions will be conducted humanely as required by the Eighth Amendment of the U.S. Constitution and the Montana Constitution.
In short, the protocol is unconstitutional. On Wednesday, the ACLU of Montana presents its case, Smith v. Ferriter, challenging the protocol to District Court Judge Jeffrey Sherlock in Helena.
To add to the problems, states across the country are scrambling to find drugs to use for lethal injection since the drug of choice for the first part of the process - sodium thiopental - was put out of production in early 2011.
The three-drug protocol used by most states for years, and called for in Montana's protocol, consists of a drug to render the prisoner unconscious, followed by a drug to paralyze the person and then a final drug to induce a heart attack.
Now some states are trying different drugs to cause unconsciousness, and the results have not been good.
The execution of Roy Blankenship in Georgia with the drug Nembutal went horribly wrong. According to an AP reporter who attended, Blankenship gasped, and jerked around after the injection, and made swallowing motions a full three minutes later. It took four minutes for him to stop moving and he was not declared dead for several minutes more. His eyes never closed.
Other states are trying different drugs. The common denominator is that these drugs were not intended for executions and the results are very uncertain.
To complicate things further, the Montana statute governing executions calls for a two-drug process, but the Department of Corrections protocol calls for three drugs.
In short, Montana's execution protocol cannot guarantee humane executions and does not even comply with state law. It is unconstitutional.
