Last week, the American Civil Liberties Union alleged in court filings that a new Montana Department of Corrections execution protocolone that calls for administering a barbiturate and then a paralysis agent intravenouslycould leave prisoners alert while they're being put to death.
"They can no longer show signs of consciousness, but they are slowly suffocating," says ACLU cooperating attorney Ron Waterman. "It could be as long as 10-15 minutes."
The ACLU first filed suit challenging the DOC's execution protocol in 2008. The case, Smith v. Ferriter, was filed on behalf of convicted murderer Ronald Allen Smith. It now also includes the state's only other death row prisoner, William Gollehon, who was sentenced for killing another Montana State Prison inmate in 1990.
Last year, District Judge Jeffrey Sherlock agreed with the ACLU when finding that the state's execution method violated constitutional prohibitions against cruel and unusual punishment. In response, the DOC initiated new procedures, including the presence of an emergency medical technician to check for signs of consciousness. DOC also changed the drug cocktail used to administer a lethal injection.
It's the drug cocktail that concerns Waterman and the ACLU. On July 15, they argued in legal filings that the barbiturate the state intends to use, pentobarbital, will work too slowly, leaving the inmate to suffer the second injection's effects.
"The second drug's paralyzing effect makes it impossible for the execution team and witnesses to know whether the condemned prisoner is conscious or unconscious and also induces suffocation with no subsequent cardiac arrest to ensure a quick death," the ACLU claims in legal filings.
In response, attorneys for the DOC argue in court documents that, despite the ACLU's assertions, the barbiturate alone is sufficient to kill a person and render them unconscious within a minute and a half. "(It) will cause all persons to stop breathing immediately and die, which would include stopping the heart's actions."
The Montana Attorney General's office, which is representing the DOC, declined to comment for this article, citing pending litigation. The state further notes in its legal filings, however, that it has wholly complied with Sherlock's 2012 order and that Montana's execution protocol "far exceeds federal minimum constitutional standards," adding that, "this case should be dismissed with prejudice."