USA - Montana. Execution Protocol Unconstitutional, Montana Judge Declares

Execution Protocol Unconstitutional, Montana Judge Declares. Today Ronald Smith, 53, scored a minor legal victory after a judge declared the state's method of execution unconstitutional. The American Civil Liberties Union filed a civil lawsuit in 2008 on behalf of Smith that argued the lethal injections the state uses are cruel and unusual punishment and violate the right to human dignity. District Court Judge Jeffrey Sherlock has agreed, pointing to problems such as lack of training for the individual who administers the drug, a discrepancy over whether 2 or 3 drugs should be used in the execution and the method used to determine if the inmate is actually unconscious. "The Montana protocol has problems," said Sherlock in his 26-page judgment. "All 3 of these concerns create a substantial risk of serious harm violative of the plaintiff's right to be protected from cruel and unusual punishment." But Sherlock noted it wouldn't be difficult to bring the protocol into line with what is expected. "The court notes, theoretically, the legislature and the Department of Corrections can easily make changes to the protocol as are found wanting in this decision. These changes can be made quickly and, if done, the modified protocol could not be found in violation of the Montana Constitution." Smith's lawyer said the ruling wasn't a knockout but does buy his client some time. "It's a temporary victory," said Don Vernay. "They'll just have to redo it. The stay remains in place. Vernay said it could be at least a year or 2 before Smith faces a potential execution again, but he is hopeful Montana Gov. Brian Schweitzer will intervene in the meantime and grant his client clemency. He pleaded guilty in 1983 to shooting cousins Thomas Running Rabbit and Harvey Mad Man Jr. in the head with a sawed-off, 22-calibre rifle while he was high on drugs and alcohol. He refused a plea deal and asked for a death sentence but later changed his mind. Three decades later, and after several execution dates were set and countless legal arguments made, his request for clemency was rejected in the spring by the Montana Board of Pardons and Parole. Vernay said the ACLU deserves credit for the victory. "God bless 'em because they worked hard on it and it's a battle won," he said.