Judge blocks Montana from using drug in executions

AP News
|
Posted: Oct 06, 2015 11:27 PM

HELENA, Mont. (AP) — A judge on Tuesday blocked Montana from using a particular drug in lethal injections, effectively halting executions in the state until an adequate substitute can be found or lawmakers change the law.

The barbiturate pentobarbital does not meet the state law's standards for executions, District Judge Jeffrey Sherlock said. Sherlock stressed that his ruling is not on whether the death penalty is constitutional or whether the drug's use constitutes cruel and unusual punishment, but only whether the drug satisfies the law.

"Scrupulous adherence to statutory mandates is especially important here given the gravity of the death penalty," Sherlock said in his order.

Montana's two-drug lethal injection law requires the use of an "ultra-fast acting barbiturate" to quickly put the inmate into a coma, followed by a paralytic agent called pancuronium. The state's execution protocol lists sodium pentothal as the barbiturate, with pentobarbital as a substitute.

Sodium pentothal is no longer manufactured in the U.S., and it can't be imported, which has left death-penalty states such as Montana to adjust their execution protocols.

Pentobarbital is used for lethal injections in other states, and while the drug does act quickly, it does not meet the "ultra-fast" classification required by the Montana Legislature, ruled Sherlock, who is based in Helena.

"Under the express terms of the statute, the State of Montana is not allowed to use the 'fastest acting barbiturate available' or a 'relatively fast-acting barbiturate,' only an 'ultra-fast acting barbiturate,' the judge wrote.

Medical evidence shows only three barbiturates can be classified as "ultra-fast acting," and pentobarbital is not one of them, the judge said. Sodium pentothal, or thiopental, is one, along with thiamylal and methohexital.

Sodium pentothal takes effect almost instantaneously, while a person given pentobarbital would breathe longer, move his body and slur his words before taking effect, Dr. Mark Heath, a Columbia University anesthesiologist, testified last month.

Department of Justice spokesman John Barnes says state attorneys are reviewing Sherlock's decision. Department of Corrections spokeswoman Judy Beck did not immediately return a call for comment on whether a substitution for pentobarbital was available.

Montana's last execution was carried out in 2006, and pentobarbital has not been used in its lethal-injection mixture.

Tuesday's ruling was made in a lawsuit brought by the American Civil Liberties Union of Montana on behalf of the state's two death-row inmates, Ronald Allen Smith and William Gollehon. They argued that if the barbiturate does not take effect quickly enough, a condemned inmate could remain conscious while he suffers to death.

"While the ACLU will continue to fight for the abolition of the death penalty in Montana, we are gratified that, in the short term, our state will be staying out of the business of killing people," ACLU of Montana Executive Director Caitlin Borgmann said.