Smith had hoped that Brian Schweitzer, a Democrat who finished his second term Monday, would put an end to Smith's fight to avoid execution for the 1982 murders of two young Montana men.
The move doesn't mean that the former resident of Red Deer, Alta., will be executed any time soon. The clemency application now becomes the responsibility of new state governor Steve Bullock.
"I'm somewhat surprised and a little bit disappointed," Ron Waterman, a lawyer for the American Civil Liberties Union, said in an interview with The Canadian Press.
"It's just sort of unfinished work. The petition now just shifts over to the new governor to see whether or not he would be inclined to act on the petition."
Bullock, like Schweitzer, is also a Democrat and spent the last four years serving as Montana's attorney general. He has publicly indicated he supports the death penalty but isn't considered to be a strong proponent.
"In limited circumstances, I personally support the death penalty," Bullock, 46, said last May in a response to a survey by the Billings Gazette.
Bullock has also held back from lobbying against efforts in the Montana legislature to abolish the death penalty, said Waterman.
A call to Bullock's office Monday seeking further comment on the Smith case was not returned.
Waterman believes that Schweitzer may have had second thoughts about dealing with the clemency request because of an outstanding civil action involving the liberties union.
Last September, Montana District Court Judge Jeffrey Sherlock put all executions on hold by declaring the state's method of execution unconstitutional, cruel and inhumane.
Sherlock indicated the state legislature needs to rejig statutes to bring the execution protocol in line with Montana's constitution — something the Attorney General's office is hoping to avoid. The state has persuaded Sherlock to hear arguments that it be allowed to make changes to its execution procedures without going to the legislature.
"I think the governor may have just simply looked at it and said, 'Why should I do something that does not require my immediate action? Doing nothing could pull this out another four or five years,'" said Waterman.
Smith's longtime lawyer, Don Vernay, said he was "sickened" that Schweitzer decided to take the easy way out.
"He took the politician's way out," said Vernay, who practises law in Albuequerue, N.M.
"He had initially said that he was not going to wait until the closing hours of his office to take care of this, so the guy talks out of both sides of his mouth."
Vernay is particularly angry that Schweitzer's office contacted Smith's legal team two weeks ago asking for a letter from Smith guaranteeing that he would not appeal his conviction. That led to the belief that clemency was going to be granted.
"It's a downer. I have 21 years of my life invested in this case and he's one of the better clients I've had. I can imagine what his poor family is feeling and how they're going to handle this."
Smith, 55, has been on death row since he admitted to shooting Thomas Mad Man Jr. and Harvey Running Rabbit near East Glacier, Mont., in 1982. He originally asked for the death penalty, but soon after changed his mind and has been fighting for his life ever since.
He issued an emotional apology at his clemency hearing last May in which he said he was "horrendously sorry" for his actions.
"I do understand the pain and suffering I've put you through,'' he told the families of the victims. "It was never my intent to cause any suffering for anybody. I wish there was some way I could take it back. I can't.
"All I can do is hope to move forward with my life and become a better person."
His apology fell on deaf ears. One by one, family members demanded that Smith be executed for the murders.
But others have expressed support for Smith's request, including his daughter, Carmen Blackburn, and Jessica Crawford, Running Rabbit's daughter and Mad Man's cousin.
The Canadian government grudgingly sent a letter in December 2011 to the Montana Board of Pardons and Paroles asking that clemency be granted. It followed up last month with a letter to Schweitzer from Foreign Affairs Minister John Baird.
That letter was almost identical to the first one and made it clear that the Federal Court had ordered the government to support Smith's case for clemency.
"The government of Canada requests that you grant clemency to Mr. Smith on humanitarian grounds,'' wrote Baird. "The government of Canada does not sympathize with violent crime and this letter should not be construed as reflecting a judgment on Mr. Smith's conduct.''
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