CALGARY - A complex legislative process and a lack of political will could derail any plans to change the way Montana carries out its executions, but may be a ray of hope for a Canadian on death row.
This month's ruling by a judge who declared the state's method of execution "unconstitutional" could do something 30 years of legal wrangling and appeals have failed to do for Canadian Ronald Smith — prevent his execution for the 1982 murders of two young Montana men.
But it's not a simple matter.
The American Civil Liberties Union filed a civil lawsuit in 2008 on behalf of Smith that argued the lethal injections the state uses are cruel and unusual punishment and violate the right to human dignity.
District Court Judge Jeffrey Sherlock in his Sept. 6 ruling pointed to problems such as lack of training for individuals who administer the drug and a discrepancy over whether two or three drugs should be used. He also questioned the method used to determine if an inmate is actually unconscious before receiving the lethal injection.
"The Montana protocol has problems,'' Sherlock said in his 26-page judgment.
"All three of these concerns create a substantial risk of serious harm violative of the plaintiff's right to be protected from cruel and unusual punishment.''
Sherlock said the state legislature needs to rejig the statutes to bring the execution protocol into line with Montana's Constitution.
Ron Waterman, lawyer for the civil liberties union, suggests getting those changes passed by the state legislature could be a formidable task.
"Even if they went forward and wanted to change the statute, there's no guarantee, with how the legislature has been divided, that the statute can be changed," said Waterman in an interview with The Canadian Press.
"That's a steeper hill to climb."
He also doubts there is a lot of support for revamping the execution method.
"The truth of the matter is we've not used the death penalty for some time. We have gone more than a decade without any new capital cases being charged," he said.
"There's not going to be a huge clamour of, 'We use this all the time.'"
"This isn't Texas."
Democratic Senator Dave Wanzenried intends to reintroduce a bill to repeal Montana's death penalty when the state legislature sits again in January. The bill made it through the Senate twice in 2009 and 2011 but failed to get past the Montana house judiciary committee.
In order to pass, the changes need to pass both the Senate and the state House of Representatives.
"It takes an awful lot of navigating to get a bill through the legislature, especially one that will be as controversial as this one will be," Wanzenried said.
The senator said he would be surprised if a new bill could be ready for the 2013 session and, since the house only sits every two years, it might be delayed until 2015.
Smith, originally from Red Deer, Alta., has been living on borrowed time since he was convicted in Montana in 1983 for shooting Harvey Madman Jr. and Thomas Running Rabbit, while he was high on drugs and alcohol near East Glacier, Mont.
He had been taking 30 to 40 hits of LSD and consuming between 12 and 18 beers a day at the time of the murders. He refused a plea deal that would have seen him avoid death row and spend the rest of his life in prison. Three weeks later, he pleaded guilty. He asked for and was given a death sentence.
Smith later had a change of heart and has had a number of execution dates set and overturned.
He is currently waiting to see if Montana Gov. Brian Schweitzer will grant him clemency.
Waterman is unsure whether the state will appeal Sherlock's decision. It could be another couple of months before that is known.