Montana’s death penalty protocol is broken and last week’s court battle of medical experts proved that.

The trial last week wasn’t about whether we should be putting people to death in Montana, it was about how we administer death.

At issue is the barbiturate pentobarbital.  The State of Montana has turned to this drug in an effort to keep executing people after previous drugs have become unavailable. In lethal injections in Montana, the State first administers a drug to render the inmate unconscious, followed by a second, paralytic drug. Together, the two drugs are meant to stop the inmate from breathing and cause death by asphyxia.

By Montana statute, lethal injections must use an “ultra-fast-acting barbiturate” to render the inmate unconscious.   When the State legislature passed the law in 1983, they did not define the term “ultra-fast acting.”  Thiopental, the drug used in lethal injections at the time, is no longer available in the U.S.  Pentobarbital was not used in executions in the United States until 2010.

In court on Wednesday, the ACLU’s expert, Dr. Mark Heath, testified that pentobarbital has never been considered an ultra-fast-acting barbiturate.  There are only three drugs that meet that definition, thiopental, methohexital, and thiamylal.  A board-certified anesthesiologist and a member of the faculty at Columbia University, Dr. 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."

The state’s expert, Dr. Lee Evans, was unable to credibly assert that pentobarbital is  ultra-fast-acting. In fact, at trial Dr. Evans, admitted on cross-examination that he provided false information under oath on several occasions in this case, which he attributed to a "mistake of memory."  He also reluctantly acknowledged that he has provided this same false information under oath in recent death penalty cases in other states. On whether pentobarbital is an ultra-fast-acting barbiturate, the ACLU demonstrated that Dr. Evans' opinion in court was directly contrary to sworn testimony he has offered in other death penalty cases.  He is not a credible witness, certainly not the kind of witness a court should rely on in making decisions of life and death.
Local media surrounding this trial:

Judge hears arguments on Montana's lethal injection method (Missoulian)

Trial over execution drug begins in Helena (Missoulian)

Execution drug trial ends with witness credibility dispute (Missoulian)