Montana wants permission to change execution steps without legislature: lawyer

09/21/2012 06:36 EDT | Updated 11/21/2012 05:12 EST
CALGARY - Lawyers for a civil liberties group in the U.S. say the State of Montana is hoping to bypass a requirement to get approval from its legislature to change the way it carries out its executions.

A ruling by a Montana judge earlier this month declared the state's method of execution unconstitutional, giving hope to Canadian Ronald Smith, who is facing execution for the 1982 murders of two young Montana men.

The American Civil Liberties Union filed a civil lawsuit in 2008 on behalf of Smith that argued the lethal injection the state uses is cruel and unusual punishment and violates 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 drugs 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.

But the civil liberties union is worried Montana's assistant attorney general Mark Fowler is trying to avoid that route.

"The AGs office is going to ask the judge about whether they can file new protocol without amending the statute," said union lawyer Ron Waterman in an email to Smith's lawyers.

"I have already pointed out the problems with the statute ... all of which become problems for the state to proceed with a new protocol without first amended the statute."

Smith's lawyer Don Vernay is upset.

"Looks like the AG is trying to make an end run around the statute," Vernay said in an email to The Canadian Press.

The matter is scheduled for a court hearing Oct. 19.

Waterman and Montana Sen. Dave Wanzenried said recently that it would be difficult to get both houses in the legislature to agree to any changes in the death penalty statute.

"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,'' Waterman said earlier this month.

"That's a steeper hill to climb.''

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.