Judge Strikes Down Montana’s Lethal Injection Protocol

A state district judge Tuesday ruled that Montana’s execution method does not comply with state law, and blocked the state from carrying out any executions on condemned criminals until it fixes the problem.

Montana law stipulates that one of the drugs in its lethal injection mix must be an “ultra fast-acting barbiturate” and the current drug meant to play that role, pentobarbital, does not meet that criteria, District Court Judge Jeffrey Sherlock said in his ruling.

Sodium pentothal is no longer manufactured in the USA, and it can’t be imported, which has left death-penalty states such as Montana to adjust their execution protocols.

“The state of Montana will either need to select a barbiturate that is ultra-fast-acting to accomplish the execution… or it will need to modify its statute”, Sherlock wrote. The state has only two men on death row. Sodium pentothal, or thiopental, is one, along with thiamylal and methohexital.

During court testimony last month, Dr. Mark Heath, a Columbia University anesthesiologist, said sodium pentothal takes effect immediately, while an inmate injected with pentobarbital would breathe longer, move his body and slur his words.

The state’s revised protocol indicates it will use pentobarbital as a substitute barbiturate, despite the fact that pentobarbital is an intermediate-acting barbiturate, which isn’t allowed under the state’s lethal injection protocol.

Waterman filed the lawsuit, Smith v. Batista, on Smith’s behalf 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 drug is also used in physician-assisted suicides in Europe and to euthanize animals.

Citing ethical reasons, drug-makers, mostly from Europe, began about four years ago banning sales of drugs for use in executions.

He says the state can either try to find another drug that would qualify or ask the state legislature to pass a new law.

The Montana Attorney General’s office was studying the decision and would not comment on the ruling, a spokeswoman said.

“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”, ACLU of Montana Executive Director Caitlin Borgmann said.