The order in Smith v. Montana is available in Adobe .pdf format.
"Judge rules Montana execution method unconstitutional," is the AP report filed by Matt Gouras. It's via the Helena Independent Record.
A judge says Montana must change the way it executes prisoners after ruling that the current method is unconstitutional; giving a victory to death penalty foes that could be short-lived.
The decision came in the case of Ronald Allen Smith, a Canadian citizen from Red Deer, Alberta, who is awaiting execution.
The American Civil Liberties Union had filed the case in 2008, arguing that lethal injection protocol amounts to cruel and unusual punishment under the U.S. and Montana constitutions.
Helena District Judge Jeffrey Sherlock ruled Thursday that aspects of it fail to pass constitutional muster.
He said the protocol doesn’t ensure qualified individuals are making key decisions, such as verifying that the inmate is unconscious and incapable of feeling pain before administration of the death drugs. Sherlock said the warden is charged with that decision, although there is no training requirement in place to ensure he can properly determine the inmate is unconscious.
The judge said the job requirements for the setup officer are also lacking. And he pointed out there is inconsistency between what state law requires of an execution procedure, and what the Department of Corrections manual says.
But the judge said needed changes can be easily made by the state — although it could require legislative changes if the state law on the method needs adjustments to comply with requirements. The Legislature meets again in January.
State assistant attorney general C. Mark Fowler said his office is studying the opinion and deciding what options there are to modify the protocol. In the meantime, no executions are scheduled.
Reuters Legal posts, "Montana judge strikes down state execution method," by Laura Zuckerman.
A judge has struck down Montana's lethal injection procedure as a violation of the state constitution's protections against cruel and unusual punishment, effectively suspending executions in the state, officials said on Friday.
State District Court Judge Jeffrey Sherlock did not question the constitutionality of the death penalty in Montana, which has two inmates on death row and has executed three since the death penalty was reinstated in 1976.
But he ruled, in a written decision handed down on Thursday, that the state's three-drug execution procedure differed from a two-drug protocol spelled out in law, which he said "increases the likelihood of confusion and error in the process."
Sherlock also faulted a practice in Montana that allows a prison warden with no medical training or execution experience to determine a prisoner was unconscious before a fatal drug was administered.
He also found that the prison official setting up the execution process was not required to have experience with the intravenous procedure.
Sherlock said those concerns and the disparity between the protocol in state law and the one practiced by the Department of Corrections created "a substantial risk of serious harm." He also said the problems could easily be remedied by the Legislature and the state corrections department.
And:
The decision stemmed from a lawsuit brought in 2008 by the Montana American Civil Liberties Union and attorneys for death row inmate Ronald Allen Smith, a Canadian convicted of shooting and killing two people in Montana in 1982.
"Inmates Are ‘Architects of Their Own Doom,’ Says Judge Who Nixed Mont. Lethal Injection Process," by Debra Cassens Weiss for ABA Journal.
Judge Jeffrey Sherlock found three deficiencies in the state’s lethal injection procedure, report Reuters and a blog post by the American Civil Liberties Union of Montana. They are: The three-drug cocktail used differs from the two-drug process specified by state statute; there is no requirement that the executioner have experience with intravenous procedures; nor is there an experience or medical training requirement for the warden who determines whether the inmate is unconscious.Sherlock used heightened scrutiny to evaluate the challenge by two death-row inmates because of a “dignity clause” in the state constitution that gives “a boost” to the ban on cruel and unusual punishment. The clause provides, “The dignity of the human being is inviolable.”
"Montana judge strikes down state's lethal injection," by Yamiche Alcindor at USA Today.
State District Court Judge Jeffrey Sherlock said the execution method was a violation of the state constitution's protections against cruel and unusual punishment. He did not, however, question the constitutionality of the death penalty in Montana.
In a written decision handed down this week, Sherlock said the state's three-drug execution procedure differed from a two-drug protocol spelled out in law. That difference "increases the likelihood of confusion and error in the process," and creates "a substantial risk of serious harm," he said.
The judge also faulted a Montana practice that allows a prison warden with no medical training or execution experience to determine when a prisoner was unconscious before a fatal drug was administered, Reuters reports. Sherlock also found that the prison official setting up the execution process was not required to have experience with the intravenous procedure.
Earlier coverage of the Montana lethal injection ruling begins at the link.
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