HELENA, Mont. – The American Civil Liberties Union argued in court Wednesday that the method the state plans to use in the execution of a Canadian on death row is unconstitutional.
The ACLU is asking District Court Judge Jeffrey Sherlock to rule that the lethal injection protocol amounts to cruel and unusual punishment under the U.S. and Montana constitutions. The ACLU originally filed the lawsuit in 2008 on behalf of Ronald Allen Smith, originally from Red Deer, Alberta.
An attorney for the group argued that the state does not require sufficient medical training to ensure that executioners properly administer a drug that ensures no pain is felt by the executed.
The Montana Department of Corrections argues its revised execution protocol passes constitutional muster. Executions in Montana have been stayed by the court until the argument is sorted out.
Smith originally sought the death penalty and spurned a plea deal after pleading guilty in 1983 to the shooting deaths of two Blackfeet Indian cousins. He later changed his mind about the death penalty and is now seeking executive clemency from the governor.
Ron Waterman, working for the ACLU on the case, said the state's method leaves too much discretion to a prison warden who lacks the training to know for sure whether the executioner is doing the job right. He said that fails to meet strict demands that higher courts have placed on execution protocols.
"We have the blind leading the blind," Waterman said.
Both sides are asking the court to make a decision based on the legal motions already filed instead of holding a trial later this year. Sherlock did not indicate Wednesday how he will rule.
The judge did quiz the state on whether is it appropriate to have a warden with "zero" training in charge of determining whether the person being executed is sufficiently unconscious to guarantee no pain is felt by subsequent death-inducing drugs. But Sherlock also asked the ACLU if there could be an execution protocol it would find appropriate.
"Can't you find some problem with any protocol that anybody comes up with?" Sherlock asked Waterman during an hour-long hearing.
The ACLU and other death-penalty opponents regularly have asked the Montana Legislature to strike the state's death penalty in favor of life in prison without parole. The arguments have had limited success, advancing in portions of the Legislature, but they have not cleared the entire body.
Meanwhile, the Montana Board of Pardons and Parole has recommended that Gov. Brian Schweitzer reject a clemency request from Smith.
The Democrat met with Smith's family last month and said he is undecided on the request, which seeks life in prison instead of the death penalty. Schweitzer noted he is not required to issue any decision on the request.
The ACLU said its arguments in the case will stand regardless of whether Smith receives clemency because of their potential use in other cases.
Two inmates, Smith and William Jay Gollehon, await execution in Montana's death chamber -- a trailer on the prison grounds in Deer Lodge. Montana has carried out three executions since reinstating the death penalty in the 1970s, with the most recent in 2006.
Smith and his supporters argue it is unfair for Smith to be put to death while an accomplice who took a plea deal was released back to Canada long ago.
In recommending against clemency, the Parole Board noted the strong feelings of the victims' families and many others from the Blackfeet Indian Reservation who argue it is long past time for Smith to be executed for his crime.