A press release yesterday from the Montana Department of Corrections offered information on how the state plans to go about killing criminals on death row. The details of Montana's new protocol are in line with how other states deal with capital punishment, but are not free from controversy.
The main change is the new use of a drug called pentobarbital, described by the state as a "fast-acting barbiturate that causes unconsciousness and ensures the inmate will not experience pain during the process of injecting the other drugs as part of the lethal injection process." Montana, and many other states, have turned to pentobarbital because sodium thiopental is no longer manufactured. Lawyer Andrew Cohen of The Atlantic explains why sodium thiopental disappeared:
...the Italian maker of one of its ingredients, thiopental, decided that it no longer wanted to be a part of what United States Supreme Court Justice Harry Blackmun once famously called America's "machinery of death."
Pentobarbital isn't much more popular. The new drug has been legally challenged in numerous states, although unsuccessfully. The most recent case occurred in Florida, where attorneys and medical experts for convicted cop killer Manuel Valle argued that "pentobarbital was woefully untested in lethal injections and that there was some evidence an inmate suffered in a recent Georgia execution using it."
The Florida medical expert said the state's planned dosage of pentobarbital would be fatal by itself and Georgia officials disputed claims of any problems with the drug. The Florida judge denied the challenge.
The alleged problems in Georgia, though, led to other legal disputes. The July execution of Andrew Grant DeYoung was videotaped to "better enable the courts to accurately determine whether such injections violate the 'cruel and unusual punishment' clause of the Eighth Amendment." Attorneys for another death row inmate, Gregory Walker, asked for the tapes because:
Following three consecutive irregular Georgia executions, DEA seizure of Georgia's thiopental supply for its violation of federal drug importation laws, exposure of illegal narcotics activity by the medical personnel overseeing state lethal injections, Georgia's precipitous switch from thiopental to pentobarbital — an anesthetic whose manufacturer warns is untested and unsafe for use in judicial elections, and the subsequent botched execution of Roy Blankenship, who lurched and grimaced in obvious pain for several minutes while dying, Mr. Walker, who stands to be executed in the same manner, moved to preserve evidence of Georgia's next intended execution.
DeYoung's execution showed "no violent signs in death," according to the Atlanta Journal-Constitution. Walker is still scheduled to die by lethal injection.
Montana is using the recent legal victories to justify its use of the new drug. From yesterday's release:
The new protocol permits use of a substitute drug — pentobarbital — which has survived court challenges and been used successfully in other states. Mike Mahoney, who signed the document on his last day as warden Aug. 12, emphasized that the adjustments to the 149-page document are neither novel nor experimental, as they have proven effective when used in other states with extensive experience in carrying out executions.
The Department of Corrections made the changes so it can carry out the long-delayed execution of Ronald Allen Smith, the only Canadian on death row in the United States. Smith was sentenced to death in 1983 for the murder of two men. He has currently been granted a stay of execution while he fights a civil court battle against lethal injections, which he argues are unconstitutional.
This year, by the way, marks the 35th anniversary of Canada abolishing the death penalty.
Beyond using pentobarbital here are the other changes Montana made to its execution procedure:
• Clarify timing of event starting with receipt of a death warrant through post-execution procedures
• Add security measures such as a prohibition on cell phones in the execution chamber and establishment of security zones
• Create new provisions for storage and handling of drugs used in an execution
• Clarify qualification for the person setting up intravenous lines for administering lethal injection
• Specify the training required for the executioner and allows the executioner to be a contract employee
• Reduce the number of media witnesses from four to three, to comply with state law