When District Court Judge Jeffrey Sherlock ruled last fall that Montana's execution protocol was unconstitutional, the state had every opportunity to fix the problems. Instead, Department of Corrections staff failed to involve experts, the Montana Legislature or the public, and thus created a new protocol as flawed as the first.

We're challenging it in court.

The first lethal injection protocol was ruled unconstitutional on two basic grounds. It put correctional staff with no medical qualifications in the position of performing medical duties, creating the risk of them botching the job and causing the inmate to suffer cruel and unusual punishment. And, as a three-drug process (using a drug to anesthetize the prisoner, a drug to paralyze the prisoner and a drug to cause a heart attack), it did not comply with the state statute's requirement that two drugs be used, violating the separation of powers between the legislative and executive branches of government.

Rather than consulting with scientific or medical experts and asking a legislator to introduce a bill to revise the protocol. Rather than opening the process up to public participation, staff at DOC decided to adopt a two-drug protocol that is untested and is not used in any other state. While it complies with the statute's two-drug mandate, it does not comply with the statute's requirement that an "ultra-fast-acting" barbiturate be used as the first drug.

Thus, the new policy still violates the separation of powers in that the DOC, an executive agency, is blatantly ignoring a clear directive from the legislature to use an ultra-fast-acting barbiturate.

Even more troubling is the fact that the two-drug protocol creates an unacceptable risk that the prisoner may be conscious while his body is paralyzed by the second drug, resulting in him suffocating to death. Many states are moving toward a one-drug method in which one strong anesthetic both renders the prisoner unconscious and kills him. Montana is moving in a direction of heightened risk of gratuitous and unnecessary suffering.

Still another major problem with the revised protocol is that it does not specify the drugs to be used. It calls for using sodium pentothal as an ultra-fast-acting barbiturate -- a drug that is no longer produced in the U.S., is unavailable for purchase and is illegal to import. It offers Pentobarbital, an intermediate-acting barbiturate, as a substitute and allows for any other unspecified drug to be substituted. This creates unreasonable uncertainty about the drug to be used and the risks associated with that drug.

These problems could have been pointed out had the Department of Corrections followed the state’s rule-making procedures outlined in the Montana Administrative Procedures Act. The act mandates public notice and a public hearing, which are essential to ensure public participation in the creation of administrative rules.  No public input whatsoever was solicited or considered in the revision of this lethal injection protocol.  Because the DOC executes people in the name of the people of Montana, the people of Montana should have a say in the method of execution.

The bottom line is that the new policy is unacceptable and unconstitutional.