State Judge Rules Montana’s Lethal Injection Protocol is Unlawful
HELENA, MT — In a victory for justice, District Court Judge Jeffrey Sherlock ruled today that Montana’s use of the drug pentobarbital in execution doesn’t comply with the statute that governs lethal injection in Montana.
All Montana executions are stayed indefinitely, which means that Montana remains in a de facto death penalty moratorium.
Montana is the only state in the country that stipulates a two-drug lethal injection protocol and requires one of the drugs to be an “ultra fast acting barbiturate.” The trial in the ACLU’s legal challenge to the protocol occurred in early September. The issue for trial was what the Montana Legislature meant when it specified use of an “ultra-fast-acting barbiturate” and whether pentobarbital meets that definition. The Plaintiff’s’ medical expert, Columbia University Medical Center anesthesiologist Dr. Mark Heath, demonstrated that pentobarbital is never used in a medical setting to induce unconsciousness in a conscious patient, and it does not have the specific molecular structure to be considered “ultra-fast acting.” The medical expert for the State, Dr. Roswell Lee Evans, dean of Auburn University’s pharmacy school, was sharply criticized during the trial for making conflicting statements under oath. Dr. Evans testified in Montana that pentobarbital takes effect in less than one minute so could be considered an ultra-fast acting drug. This directly contradicted a statement Dr. Evans made in a 2012 Florida case that pentobarbital’s onset is three to four minutes.
Judge Sherlock stated Dr.’s Evans’s earlier, conflicting testimony was a “factor when weighing the evidence which shows by a relatively overwhelming nature that, while pentobarbital may operate in a fast nature, it is not ultra-fast as is required to comply with Montana’s execution protocol.” The ruling goes on to say, “The State of Montana is not allowed to use the ‘fastest acting barbiturate available’ or a ‘relatively fast acting barbiturate,’ only an ‘ultra fast acting barbiturate.’” The court determined that pentobarbital does not meet that definition and enjoined the state from using it in its lethal injection protocol. The Court noted that “[s]crupulous adherence to statutory mandates is especially important here given the gravity of the death penalty.”
“The State has had multiple opportunities to correct the problems with the death penalty protocol. And each time they came up with a new flawed procedure,” said ACLU Legal Director, Jim Taylor. “Seven years of litigation has demonstrated that Montana's death penalty is broken beyond repair.”
Caitlin Borgmann, the ACLU’s Executive Director, stated, “While the ACLU will continue to fight for the abolition of the death penalty in Montana, we are gratified that, in the short term, our state will be staying out of the business of killing people.”
Ron Waterman of Gough, Shanahan, Johnson and Waterman, in cooperation with the ACLU of Montana, filed the lawsuit, Smith v. Batista, on behalf of death row inmate Ronald Allen Smith in 2008, challenging the lethal injection procedure in Montana as a violation of cruel and unusual punishment and Montana’s right of human dignity. The lawsuit now also includes Montana’s only other prisoner on death row, William Gollehon. Michael Donahoe and Greg Jackson were cooperating attorneys in the case.