A ruling by Montana District Court Judge Jeffrey Sherlock in September 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.
But the State of Montana has convinced Sherlock to hear its arguments in an attempt bypass a requirement to get approval from the legislature to change the way it carries out its executions.
"The state had indicated they believed they could change the protocol and comply with the statute," said lead lawyer Ron Waterman of the American Civil Liberties Union in an interview with The Canadian Press.
"I don't think that's possible but nevertheless that's what they've told the court so the judge said, all right, we can have a hearing on that."
Waterman said a three-day hearing has been scheduled for July 22, 2013 but it is likely the matter will be resolved through a request for a summary judgment from Sherlock before then.
The ACLU filed a civil lawsuit in 2008 on behalf of Smith and another death row inmate that argued the lethal injection the state uses is cruel and unusual punishment and violates the right to human dignity.
In his Sept. 6 ruling Judge Sherlock 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 indicated the state legislature needed to rejig the statutes to bring the execution protocol into line with Montana's constitution — something the Attorney General's office is now hoping to avoid. The legislature route is complex and both Waterman and legislators have indicated it might be a steep hill to climb to get the changes through.
"It's one of those sort of things that's a little bit irritating. The fact of the matter is that what the judge said was it's not the question of whether the death penalty is unconstitutional — it is the question of whether the protocol is unconstitutional," Waterman said.
"That always means that they could amend the protocol on the statute. There's always that potential."
Smith, originally from Red Deer, Alta., has been running out of legal options 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 said he is surprised that the State of Montana is attempting to bypass the current process but said he did expect it would attempt to do something. He said it's obvious the attorney general's assessment of the legislative challenges coincides with his belief that it would be difficult to achieve.
"They're seeing that as something they want to avoid if they can," he said, adding he remains optimistic.
"I'm confident that what we have is a stay that is continuing and it's obviously going to continue for a while yet."
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