A motion being introduced by the state's Republican Sen. Terry Murphy calls for a review of the Montana Board of Pardons and Parole. It could result in limitations on the board's powers or its eventual elimination.
Murphy said a 2011 report by the board indicates that 72 per cent of inmates in Montana were eligible for parole and 60 per cent of those were denied parole on their first try.
"They have too much power," Murphy said in an interview with The Canadian Press.
"A lot of non-violent offenders who qualify for parole are simply not receiving their hearings and are not being paroled. I'm not sure why except it seems like there's a real desire to keep as many people in the system as possible," he said.
"I think the parole board is just so extremely overcautious they don't want to turn loose anybody who might conceivably make a serious crime later.
"It's costing the taxpayers millions of dollars."
Murphy said it's also disturbing the board has the power to add requirements on prisoners who are paroled beyond the restrictions imposed by a judge during sentencing.
The board gave short shrift to Smith's request for clemency, not even giving reasons for why it recommended against it.
Smith, 55, has been on death row for 30 years for the 1982 murders of Thomas Running Rabbit and Harvey Mad Man Jr. His request for clemency has been inherited by new Montana Gov. Steve Bullock, who was sworn in last week.
Smith's lawyer, Don Vernay, said the need for a review was highlighted prior to the clemency hearing last year. A report prepared by board staff which recommended the three-member board reject clemency was leaked to The Canadian Press before the hearing was even held.
"Seems like the current board has come under criticism for their tough-on-crime standards of operation," said Vernay.
"Look at what they did to us. The staff didn't do their jobs and told the board what to do. There's a bunch of criteria that has to be met and when they issued their ruling they didn't give any reasons."
Work is still going on behind the scenes by Smith's supporters.
Lawyers representing the prisoner hope to meet with Bullock as soon as possible to renew Smith's appeal for clemency.
Ron Waterman, a lawyer with the American Civil Liberties Union that has filed a civil action on behalf of Smith, said Bullock is familiar with the case because he is the state's former attorney general. But Waterman expects he'll take his time.
"What he might want to do is meet with the various constituencies that have interests," he said. "He might want to meet with the Smith family. I would think he would probably want to talk to the Canadian consulate as they've been very involved.
"I would think that before he takes any action ... he would probably want to pick up those pieces and get a sense from them on what to do and how to do it."
Waterman suggested it comes down to "whether the governor believes in redemption and second chances."
Vernay believes it's possible to make a compelling argument to convince Bullock to do the "right thing." It's believed that the new governor, also a Democrat, isn't an ardent supporter of the death penalty.
There have been four executions in Montana since 1945.
The Montana legislature will also have to deal — again — with legislation to abolish the death penalty altogether.
Sen. Dave Wanzenried, a Democrat, has introduced two bills in the past which were passed by the Senate but killed by a judiciary committee. This time a bill is to be introduced in the house with the hope of a different outcome.
"I've been the sponsor the last two times and it hasn't passed," he said.
"Hopefully we'll see a better outcome and the work that has been done from two years ago will pay off."
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