Judge Rejects Montana’s Lethal Injection Protocol

BOZEMAN, Mont. (CN) - Montana's method of executing inmates contains three major flaws that violate the state constitution and need to be fixed, a district judge ruled.

First District Court Judge Jeffrey Sherlock in Helena, Mont., said the state's protocol for capital punishment differed from the methods upheld in Kentucky, Arizona and Idaho.

Montana is one of 30 states that use the so-called "three-drug cocktail" method of executing death-row inmates. The protocol involves sequential injections of sodium pentothal to put the inmates in a coma, pancuronium bromide to paralyze them and potassium chloride to stop their hearts.

Many inmates have argued, usually unsuccessfully, that lethal injection constitutes cruel and unusual punishment in violation of the Eighth Amendment.

"[I]t is crucial that the insertion of the IV be done professionally and properly, and that unconsciousness be obtained before the second and third drugs are provided," Sherlock wrote in his 26-page ruling late last week. "If the IV is properly placed and the inmate receives a proper dose of the first drug, there is no probability of any kind that the inmate would suffer any pain or suffering."

In Baze v. Rees , the U.S. Supreme Court ruled that lethal injection must present an "objectively intolerable risk of harm" and must be "sure or very likely to cause serious illness and needless suffering" to qualify as cruel and unusual punishment.

The high court upheld Kentucky's lethal injection protocol in 2008, triggering courts in Virginia , Arkansas and Delaware to follow its lead on similar three-drug protocols.

But Sherlock said Montana's protocol, revised last August, does not adequately ensure proper IV placement or unconsciousness at this "absolute crucial juncture in the execution process."

Other states with court-approved protocols require the person setting up the IV to have "specific relevant experience or 'venous currency,'" Sherlock wrote. "Montana merely requires that the individual be an EMT. An EMT certificate, by its very nature, does not necessarily include an IV endorsement."

In this area, he said, Montana's protocol is "less rigorous" than Kentucky's and "less demanding" than Idaho or Arizona 's protocols.

He also rejected Montana's reliance on the warden to determine if an inmate is unconscious before administering the second and third drugs.

"Since the determination of consciousness is such a crucial step, someone with a modicum of medical training should be involved in that determination," Sherlock wrote. "Not only is the warden of the Montana State Prison not expected to have medical experience, but the deposition of current warden [Leroy] Kirkegard shows that he has no experience whatsoever and has never participated in an execution."

Finally, he noted that Montana law outlines a two-drug lethal injection procedure, while the Department of Corrections has adopted a three-drug protocol. He said the state has done nothing to fix this inconsistency, "even though it has known for four years this is a major contention of the plaintiffs."

"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.

The Helena judge acknowledged that Montana's protocol might hold up under the U.S. Constitution, but said it fails under the state constitution's higher standards, which include a human dignity clause.

However, he said the Montana Legislature and the Department of Corrections "can easily make changes" to the protocol to correct the three flaws - at least theoretically.

The American Civil Liberties Union of Montana and attorney Ron Waterman had filed suit in 2008 on behalf of inmates Rodney Allen Smith and William J. Gollehon, who have been on death row for 30 years and 22 years, respectively.

"We are pleased that the court recognizes the insufficiencies of the state's lethal injection protocol and that those insufficiencies create a situation where executions could inflict pain and suffering," Waterman said. "If the state insists on carrying out this most extreme sentence, it has an obligation to do so in a manner that upholds the U.S. and Montana Constitutions."

Gollehon was sentenced to death for murdering another inmate in 1990. Smith received the death penalty for killing two people in 1982. Smith's execution was stayed last year pending the outcome of this lawsuit, and Gollehon has petitioned Gov. Brian Schweitzer for clemency.

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