Montana's death penalty was dealt a serious blow this week when District Court Judge Jeffrey Sherlock ruled the state's lethal injection protocol unconstitutional.

The ACLU of Montana, with Ron Waterman of Gough, Shanahan and Waterman, challenged the protocol in 2008 on behalf of death row inmate Ronald Smith. We knew it was unconstitutional because it did not provide enough safeguards to ensure prisoners would not suffer during executions. It also fails to conform to Montana's death penalty statute.

Sherlock agreed. He pointed out three chief deficiencies:

  • The requirement that the warden be the person who determines whether the prisoner is unconscious before the lethal drug is administered;
  • The fact that there is no requirement that the executioner have any proficiency with administering IVs;
  • The protocol's three-drug process, which conflicts with the Montana's death penalty statute's two-drug process, violates the separation of powers between the executive and legislative branches.

"All three of these concerns create a substantial risk of serious harm violative of the Plaintiffs' right to be protected from cruel and unusual punishment," Sherlock wrote in his decision.

We believe the death penalty, in and of itself, is wrong, but if the state wants to use this most serious of punishments, it must do so in a constitutional manner.

Unless Montana resolves the problems cited in Judge Sherlock's decision, there will be no more executions in this state.