01/17/2013 12:03 EST | Updated 03/19/2013 05:12 EDT

Clemency for Ronald Smith? New Governor Should Say Yes


Montana's last Governor, Brian Schweitzer, disappointed many individuals when, at the end of his term, he decided to not act on the clemency petition for Canadian death-row inmate Ron Smith. His last-minute announcement that he was not going to act reflects two or three elements of this complex case. First, the Governor noted in interviews given to the press that he did not see anything which was imminent or pressing which required action. The lethal injection protocol has been enjoined since late 2009, and the injunction appears likely to remain in place through the hearing on the merits of the lethal injection protocol in July 2013 and for another 6-9 months beyond, through any appeal to the Montana Supreme Court. Unless the state can develop a new protocol within the restrictions of the current Montana statute, an event which appears questionable, proceeding forward may require legislative modification of the statute, which could mean that this issue would extend into the 2015 Legislative session.

Second, Governor Schweitzer is aware that, as with the past four sessions, an abolition bill is likely to be introduced during the present legislative session. Were abolition of the death penalty to pass, capital sentences would be converted to life in prison without chance for parole. Again, this only underscores the fact that action was not required and that, even if the Governor was an opponent of the death penalty, an issue which he never made any clear policy statements about, Ron Smith's sentence might be modified without the necessity of clemency.

Third, Governor Schweitzer is a strong ally of the Native people in Montana and the two victims of this crime, which occurred now more than 30 years ago. Tribal members and the seven tribes in Montana have been clear that, as regards this crime, they would like to see the original sentence carried out.

Thus it appears that the lack of an immediate concern that the death penalty would be administered, the possibility that Montana could totally abolish the death penalty and not wanting to offend Native American groups combined together to cause the Governor to not act on the pending clemency petition.

Given these factors, what can be expected from the new Governor, former Attorney General Steve Bullock? While Governor Bullock was the chief law enforcement officer for Montana for four years, he has not taken any clear position on death penalty issues. He has continued the position which all previous attorney generals have taken for more than 30 years, discouraging county attorneys from seeking the death penalty in cases. This position resulted in only one case in which the death penalty was sought during Governor Bullock's term as AG. Thus, Bullock is no stranger to the issues nor to the complexities and problems with the lethal injection protocol, since it has been attorneys from the AG's office who have been defending the state's current protocol.

There are several features which Montana's new Governor might look at in deciding whether to grant clemency to Ron Smith. Smith was one of three individuals involved in the kidnapping and death of the two Native American men in the early 1980s. One individual was not charged at all with a capital offense and the other co-defendant took a plea and was sentenced to 100 years. Since their convictions, both men who were co-defendants with Ron Smith have either served their sentences or have been granted parole. Thus the inequity of the death sentence looms large in this case, given its unequal application to the men who committed this crime.

Also, as noted, Montana has never had a history of using the death sentence as a central part of its criminal justice proceedings. There have been only four executions in Montana since 1945, and 50 years went between the first and second executions; the last two executions were with volunteers -- inmates sentenced to death who had stopped all appeals and accepted the death sentence as a means of escaping the potential of life-long imprisonment.

Finally, there is the issue of closure for everyone -- for the victims' families and for society. The present system simply brings closure to no one. Every time there is another hearing or, as here, the end of one Governor's term approaches, the fact of this crime and the reminder of the losses to the families play out repeatedly. There is no closure given the present system of death penalty litigation and the ongoing and developing jurisprudence in this area, which continues to raise new issues, many of which entitle an inmate under the death sentence to raise new challenges to the sentence or the lethal injection protocol.

It is too early to tell how Governor Bullock will react to these issues, but in addition to stepping into a new office with vast responsibilities, Governor Bullock will have the opportunity in the near future to weigh the fate of Ron Smith and at least be given the opportunity to decide whether for all of the reasons shown during the clemency hearing and as summarized above, clemency is the most appropriate way to address and decide Ron Smith's fate.