The Montana Department of Corrections wants a new drug, and thinks that drug and minor tweaks to its lethal injection protocol will fix the system.
They won't. The state's newly revised lethal injection protocol leaves too much to chance. It fails to mandate appropriate qualifications or adequate training for executioners and does not ensure that prisoners won't suffer during their executions.
The policy leaves almost every important decision at the sole discretion of the warden. Past court rulings have been clear that the death penalty and protocol are only legal if the procedures are spelled out in explicit detail and are performed by people who are qualified and have the training and experience they need to conduct executions without inflicting pain and suffering.
And there is good reason why that's the case. Time after time, improperly trained executors with vague instructions have botched executions. Take the 2009 case of an Ohio man who was poked and stuck by executioners looking for a vein for two hours. Observers described it as torture.
And if the fast-acting barbiturate used in the three-drug lethal injection procedure doesn't work, the prisoner could be fully conscious and feel everything when the paralytic agent is injected.
Montana's new protocol allows for the use of pentobarbital as a replacement for the sodium thiopental which is now unavailable for executions. It's unavailable because the U.S. manufacturer and countries who have supplies of the drug refuse to supply it to those who want to kill people. So, Montana, along with other states and the federal government, has been looking for other drugs to execute prisoners.
Those drugs have little or no proven ability, however, to prevent suffering during lethal injections.
The death penalty is on hold in some places until these issues can be resolved.
The ACLU of Montana, with the cooperation of Helena attorneys Ron Waterman and Julie Johnson, challenged Montana's lethal injection protocol in 2008. It is unconstitutional as a violation of cruel and unusual punishment and the right of human dignity. The Department of Corrections changes to its protocol do not change that. Our case will continue.