The ACLU of Montana has long fought Montana's death penalty -- both as a member of the Montana Abolition Coalition advocating the death penalty's repeal, and through litigation challenging the state's lethal injection protocol.

Now we're also watching with great interest a case in  Kalispell in which the attorneys for a man charged with murder are arguing that Montana's death penalty is unconstitutional because the sentence is decided by a judge, not a jury.

"It is only when there are no mitigating factors calling for leniency that the death penalty can be imposed, and those factors must be decided by a jury, not by a lone employee of the state," attorney Ed Sheehy said.
Sheehy's argument is based upon decisions by both the  U.S. Ninth Circuit Court of Appeals and by the Supreme Court.

In the 2002 case Ring v. Arizona the U.S. Supreme Court ruled that the Sixth Amendment requires an impartial jury to determine aggravating factors necessary to impose the death penalty.

In a separate 2003 decision, the 9th U.S. Circuit Court of Appeals ruled in Summerlin v. Stewart that juries, not judges, must impose the death penalty.

The U.S. Supreme Court ruled that Ring is not retroactive, so it cannot be applied to current death row inmate Ronald Allen Smith's case, but could have implications for how or if the death penalty can be imposed in Montana in the future.

At issue is Montana's sentencing statute, which calls for a judge, not a jury, to impose the death penalty. If that statute is struck down, then the Legislature would have to craft a new law.

Stay tuned.