Lawmakers heard arguments Wednesday morning about a bill to revise Montana’s death penalty law in a way that would allow the state to resume administering lethal injections.
House Bill 244 would strike the state’s current lethal injection requirements and broaden the variety of drugs Montana can use to execute death row inmates. The bill’s sponsor, Rep. Dennis Lenz, R-Billings, told members of the House Judiciary Committee that HB 244 is “a simple bill,” but that the subject it addresses is not simple.
“The state of Montana is the only state that specifies the death penalty be accomplished by an ultra-fast-acting barbiturate,” Lenz said. “The other states employing the death penalty either specify a particular drug or merely state the execution is to take place by means of lethal injection, and that is what we’re going to do here.”
Lenz’s bill would remove those four specific words — “ultra-fast-acting barbiturate” — from state law, replacing them with language that would include any substance that, in a lethal quantity, is “sufficient to cause death.”
The death penalty is still on the books in Montana, but its ultra-fast-acting requirement was at the center of a 2015 district court lawsuit that resulted in a legal moratorium on the practice. The case was brought by the ACLU of Montana on behalf of Ronald Allen Smith and William Gollehon, the only death row inmates currently housed at the Montana State Prison. In his ruling, Judge Jeffrey Sherlock found that pentobarbital — a barbiturate that several lethal injection states turned to in 2011 due to shortages of other previously used drugs — did not meet Montana’s ultra-fast-acting provision.
Sherlock barred the use of pentobarbital. He also noted in his conclusions that if the state intended to continue administering the death penalty, its remedy was to “ask the Legislature to modify the statute to allow the use of pentobarbital or other slower acting drugs.”
According to the nonprofit Death Penalty Information Center, Montana has executed three people by lethal injection since adopting that method in 1995. Those are the only three executions the state has performed in more than 40 years.
At the outset of Wednesday’s hearing, committee chair Rep. Barry Usher, R-Roundup, stated that in keeping with Sherlock’s ruling, the discussion on HB 244 was “not about the death penalty, it is about the fast-acting barbiturate,” and instructed anyone testifying to avoid making comments that might fall outside the scope of the bill.
Republican Attorney General Austin Knudsen rose in favor of the bill, which his office requested, stating that it would resolve a technical problem that has made Montana’s death penalty law unworkable. The reason the state started using pentobarbital, Knudsen said, was that companies responsible for importing or manufacturing the drugs compliant with Montana requirements stopped making them available as a “matter of corporate protest.” Sherlock’s ruling then took pentobarbital off the table, too.
“So while we have had the death penalty legal on the books for years, we have not technically been able to execute anyone since 2015 because we have not been able to get an ‘ultra-fast-acting barbiturate,’” Knudsen said. “Those drugs are no longer available in the U.S.”
Gallatin County Attorney Marty Lambert and Broadwater County Attorney Cory Swanson also spoke in support of the bill, as did representatives for the Montana County Attorneys’ Association and the Montana Police Protective Association. The latter two echoed Knudsen’s characterization of HB 244 as a “technical change.”
SK Rossi, testifying in opposition on behalf of the Montana Innocence Project, said such a characterization was “a little disingenuous.” While Rossi conceded that the change in language is minor, its effect would have repercussions across the criminal justice system for the guilty and the innocent alike.
“While this is a small change to the statute, it would functionally reinstitute the death penalty in Montana, which means that the state can now proceed with executions where they haven’t been able to before,” Rossi said. “And the reason that impacts people who may be innocent is because as you all know, wrongful convictions do happen, and since the 1970s, over 170 people who have been on death row [in the U.S.] have been exonerated.”
The ACLU of Montana also opposed the bill, with Legislative Program Manager Sam Forstag forecasting that its passage would not make Montana safer, but instead result in a broad, ambiguous death penalty law, as well as costly litigation. Matt Brower, executive director of the Montana Catholic Conference, began speaking against HB 244 but was cut off by Usher for violating his stipulations regarding testimony.
“I know we all want to grandstand on both sides of the death penalty, but that’s not what this bill is about,” Usher said. “And we will have that day, we do have that bill coming. That day is not today.”
Rep. Ed Stafman, D-Bozeman, has requested a bill to repeal the state’s death penalty. That bill is still in the drafting process.
In response to Usher’s admonishment, Brower wrapped up his statement, noting that if he continued, he would indeed “run afoul” of Usher’s rules.
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