HELENA – Montana prison officials revised lethal-injection procedures after a judge ruled the previous methods were unconstitutional, but a civil rights organization and attorneys for a death row inmate said the changes still put condemned prisoners at risk of unnecessary suffering.
The ACLU, which filed its lawsuit in 2008 on behalf of inmate Ronald Allen Smith, said Monday the changes still fall short of protecting the rights of people sentenced to death.
“This new policy, written by Department of Corrections’ staff, was created without any input from medical or scientific professionals and it reflects that lack of expertise,” ACLU of Montana attorney Anna Conley said in a statement. “There is no clarity about the drugs to be used, and prisoners are at risk of dying in agony as they slowly suffocate while still conscious.”
State attorneys said in court documents filed Monday that the policy changes by the state Department of Corrections address the areas that District Judge Jeffrey Sherlock found fault with and the judge should dismiss the lawsuit.
The agency in January released a new execution protocol that calls for a two-drug instead of a three-drug injection after the ACLU said the original procedure amounted to cruel and unusual punishment.
The new procedure calls for an injection of the barbiturate sodium pentothal to put the inmate into a coma, followed by an injection of a paralytic agent called pancuronium bromide.
The revisions eliminate the third drug, potassium chloride, which is used to stop an inmate’s heart.
Sodium pentothal is no longer manufactured in the U.S., and it can’t be imported. The Department of Corrections said another barbiturate, pentobarbital, can be substituted for sodium pentothal.
Ohio, Texas and several other states switched to pentobarbital after Illinois-based Hospira, the only U.S. manufacturer of sodium pentothal, stopped making it in 2011.
State law requires an “ultra-fast-acting barbiturate,” such as sodium pentothal, to be used in lethal injections. Pentobarbital is not an ultra-fast-acting barbiturate and does not qualify as a substitute under the law, Ron Waterman, an attorney for Smith, said in a court filing Friday.
If neither barbiturate is available, another “appropriate drug will be determined and used as a replacement,” the revised procedures say.
That makes it unclear what drug the state would actually use in an execution, Waterman said.
Other states use either one anesthetic drug or three drugs. Montana’s new two-drug procedure is the only one of its kind in the nation, and it creates the risk that a prisoner will suffer without the third drug, potassium chloride, to cut the death short, Waterman said.
He and the ACLU are asking District Judge Jeffrey Sherlock to rule the changes unconstitutional.
“Why utilize a two-drug protocol and risk the chance of the prisoner experiencing death by conscious suffocation when a one-drug option completely removes that risk?” Waterman wrote.
Only the state Legislature can make the changes the Department of Corrections did, and only state lawmakers can create a one-drug procedure, he said.
Sherlock ruled in September that state law required two drugs to be used, not three, and the previous procedures did not ensure qualified individuals were verifying the inmate was incapable of feeling pain before the final drugs were administered.
The Department of Corrections’ changes address those deficiencies, Assistant Attorney General Mark Fowler said in his court filing asking Sherlock to dismiss the case.
Pentobarbital usually takes less than a minute to take effect and conforms to the Legislature’s intention for an ultra-fast acting drug, Fowler said.
A 5-gram injection of pentobarbital “will cause virtually all persons to stop breathing immediately and die,” he said.
Besides going to two drugs, the revised procedures establish qualifications for the person injecting the drugs that set a minimum of emergency medical technician certification with a year of experience inserting intravenous catheters.
It also creates a system of checks by a qualified person to determine whether the inmate is unconscious before the second, fatal drug is injected.