Montana judge rules lethal injection drug violates state law

Reuters News
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Posted: Oct 06, 2015 6:42 PM

By Jon Herskovitz

(Reuters) - A Montana judge ruled on Tuesday that one of the drugs planned for use in a lethal injection mix violates state law, effectively putting a hold on executions in the state, which has only two inmates on death row.

Montana law stipulates that one of the drugs in its lethal injection mix must be an "ultra fast-acting barbiturate" and the current drug intended to play that role, pentobarbital, does not meet that criteria, District Court Judge Jeffrey Sherlock said in his ruling.

The decision is unlikely to have any immediate impact in Montana, which has no executions planned and has conducted only three since 1976, when the U.S. Supreme Court reinstated the death penalty. The last one was in 2006.

"The State of Montana is hereby enjoined from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modified in conformance with this decision," the judge wrote.

The Montana Attorney General's office was studying the decision and would not comment on the ruling, a spokeswoman said.

Montana's three-drug lethal injection procedure was struck down about three years ago by a state court judge for differing from a two-drug protocol spelled out in law in the state.

"The state has had multiple opportunities to correct the problems with the death penalty protocol. And each time they came up with a new flawed procedure," said Jim Taylor, legal director for the American Civil Liberties Union of Montana, which has been fighting the execution protocol.

Fourteen states have used pentobarbital in executions, according to the Death Penalty Information Center, which monitors capital punishment in the United States.

Pentobarbital, a barbiturate that is often the drug of choice for physician-assisted suicide in Europe, is also used to euthanize animals.

Citing ethical reasons, drug-makers, mostly from Europe, began about four years ago banning sales of drugs for use in executions. States were forced to find new combinations and turned to lightly regulated compounding pharmacies, which can mix chemicals, for their execution drugs.

(Reporting by Jon Herskovitz in Austin, Texas; Editing by Eric Walsh)